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Fink v. Shemtov

January 5, 2010

DAVID FINK, PLAINTIFF AND APPELLANT,
v.
MOSES SHEMTOV ET AL., DEFENDANTS AND RESPONDENTS



Appeal from postjudgment orders of the Superior Court of Orange County, Charles Margines, Judge. Affirmed. Motion to submit new evidence. Denied. (Super. Ct. No. 07CC03259).

The opinion of the court was delivered by: Fybel, J.

CERTIFIED FOR PUBLICATION

OPINION

INTRODUCTION

Plaintiff David Fink appeals from an order declaring him a vexatious litigant under Code of Civil Procedure section 391, subdivision (b)(1) and a prefiling order issued under section 391.7. (All further statutory references are to the Code of Civil Procedure unless otherwise specified.) He contends the orders must be reversed because he has not suffered at least five adverse final determinations in litigation matters within the past seven-year period.

We affirm. The trial court did not err because Fink has suffered an adverse final determination in at least six separate litigations that he commenced in propria persona within the immediate seven-year period preceding the trial court's orders. We publish this opinion because of our analysis of the proper treatment, under section 391, subdivision (b)(1), of summary denials of petitions to a Court of Appeal for extraordinary writ relief.

BACKGROUND

In February 2007, Fink filed a complaint containing claims for breach of contract and fraud against Moses Shemtov, Mary Shemtov, S&E Stone, Inc., and Amota Properties, LLC. The complaint alleged that in 2005, Stone Center Corporation (Stone Center), located in Santa Ana, extended to Moses Shemtov instant credit to purchase merchandise, in exchange for Shemtov's agreement to complete and return Stone Center's credit contract. The complaint further alleged Shemtov neither returned the completed credit contract nor paid for the merchandise. Stone Center assigned its claim to Fink.*fn1

On October 8, 2008, the trial court provided Fink with the following notice:

"TO: David Fink, aka David M. Fink:

"PLEASE TAKE NOTICE that on October 24, 2008, at 9:30 A.M. in Department C-19 of the Orange County Superior Court, located at 700 Civic Center Drive West, Santa Ana, CA 92702, this Court, on its own motion, will determine whether you are a vexatious litigant, pursuant to Code of Civil Procedure sections 391 et. seq., and specifically sections 391[, subdivision ](b)(1) and 391[, subdivision ](b)(2)."

The notice listed seven cases that the court "will consider and take judicial notice of." The court further stated it "will also consider any other relevant evidence to be presented at the hearing, including any evidence you may wish to introduce" and "will also consider entering a pre-filing order pursuant to Code of Civil Procedure section 391.7 as well as imposing any other requirements permitted by law."

On October 17, 2008, judgment was entered in the underlying action awarding Fink $106,253.15 against Moses Shemtov only.*fn2

On October 30, 2008, Fink filed a motion to disqualify the trial judge, based, at least in part, on the trial judge's alleged bias against him as evidenced by the court's own motion to declare Fink a vexatious litigant. On November 7, the trial court issued an order striking Fink's statement of disqualification. One of the order's concluding paragraphs stated, in part: "The parties are reminded that this determination of the question of the disqualification is not an appealable order and may be reviewed only by a writ of mandate from the Court of Appeal sought within 10 days of notice to the parties of the decision."

On November 25, 2008, the trial court issued an amended notice regarding its motion to determine whether Fink was a vexatious litigant. In the amended notice, the court stated, in part:

"In making this determination, the Court will consider and take judicial notice of the following cases:*fn3

"1) David M. Fink v. Eddie S. YLST, 286 Fed. Appx. 498 (9th Cir. 2008)

"2) David M. Fink v. Eddie YLST, 198 Fed. Appx. 587 (9th Cir. 2006)

"3) David Fink v. Hollywood Marble, Inc., B190153

"4) David Fink v. Warren Garth Kirwin, G038711

"5) David Fink v. Moreno, Becerra & Guerrero, Inc., B201957

"6) David Fink v. Warren Garth Kirwin, G039395

"7) David Fink v. Jacobe Enterprises, 30-2008-00105711

"8) David Fink v. Global Natural Stones et. al., G039689

"9) David Fink v. Robert Gaynor et. al., G038703

"10) David Fink v. Jerome D. Stark, G037274

"11) David Fink v. Sailor Kennedy, G035771

"12) David Fink v. Calstar Properties, LLC, G035730

"13) David Fink v. Sailor Kennedy, G034765

"14) David Fink v. Sailor Kennedy, G034656 and

"15) David Fink v. Jose Calderon et. al., G030717

"The Court will also consider any other relevant evidence to be presented at the hearing, including any evidence you may wish to introduce.

"The court will also consider entering a pre-filing order pursuant to Code of Civil Procedure section 391.7 as well as imposing any other ...


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