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Kovacevic v. Avalon at Eagles' Crossing Homeowners Association

October 26, 2010

CARMEN KOVACEVIC, PLAINTIFF AND APPELLANT,
v.
AVALON AT EAGLES' CROSSING HOMEOWNERS ASSOCIATION ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of San Diego County, Michael B. Orfield, Judge, and Earl Maas (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. (Super. Ct. No. 37-2008-00101293-CU-PO-NC).

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

CERTIFIED FOR PUBLICATION

I. INTRODUCTION

Carmen Kovacevic, in propria persona, filed a complaint containing 11 causes of action against Avalon at Eagles' Crossing Homeowners Association (Avalon), various directors of Avalon, and the property management company that manages the condominium complex in which Kovacevic lives, Bruner & Rosi Management, Inc. (Bruner & Rosi). The defendants filed a notice pursuant to Code of Civil Procedure section 391.7, subdivision (c) (hereafter section 391.7(c)) in which they requested that the court dismiss the case on the ground that Kovacevic is a vexatious litigant who, in filing this action, violated a 2002 prefiling order that precludes her from filing any new litigation in propria persona without leave of court.*fn1 The trial court entered a judgment dismissing the action without prejudice.

On appeal, Kovacevic claims that the trial court erred in dismissing the case. Kovacevic claims that she "cured" the improper in propria persona filing of the litigation through her subsequent retention of counsel to represent her in the action.*fn2 We affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

In December 2008, Kovacevic, in propria persona, filed a complaint containing 11 causes of action against the defendants. The causes of action included negligence, breach of contract, misrepresentation, and trespass.

On May 19, 2009, Attorney Anthony Thompson substituted into the case as Kovacevic's counsel.

On June 4, the defendants filed a notice pursuant to section 391.7(c) in which they stated that Kovacevic is a vexatious litigant who is subject to a 2002 prefiling order that precludes her from filing any new litigation in propria persona without leave of court. The defendants argued that the clerk had mistakenly filed Kovacevic's complaint, and requested that the court dismiss the case pursuant to 391.7(c).

The defendants supported their section 391.7(c) notice with a copy of the 2002 prefiling order and a copy of the vexatious litigant list that the Administrative Office of the Courts (AOC) maintains. The 2002 order states in relevant part: "The court . . . issues a prefiling order preventing [Kovacevic] from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed." Kovacevic's name appears on the AOC's vexatious litigant list.

On June 10, Kovacevic's counsel filed a first amended complaint. The first amended complaint contains four causes of action, and names Avalon, and Bruner & Rossi as the sole defendants.*fn3

On July 7, the trial court held a hearing on the defendants' request to dismiss the case pursuant to section 391.7(c). Attorney Harold Thompson appeared on Kovacevic's behalf.*fn4 The trial court indicated that Kovacevic is a vexatious litigant who is subject to a prefiling order that precludes her from filing litigation in propria persona without obtaining permission from the presiding judge. The court noted that Kovacevic had not obtained the requisite permission.

Kovacivic's counsel argued that she had "kind of corrected" the improper in propria persona filing by obtaining representation. The court responded, "I understand now she has an attorney. . . . I don't think going out and getting an attorney after the fact saves the complaint." At the conclusion of the hearing, the court dismissed the action without prejudice.

On August 10, the trial court entered a judgment of dismissal without prejudice, in favor of ...


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