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November 30, 2010


Trial Judge: Michael J. Byrne, Judge (Retired judge of the L.A Sup. Ct. assigned to sit as judge of the Santa Clara Sup.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) No. CV082823

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


Appellants Jeffrey R. Golin and Elsie Y. Golin (collectively, the Golins) appeal from the dismissal of this action after the trial court determined them to be vexatious litigants under Code of Civil Procedure section 391, subdivisions (b)(2) and (3),*fn1 and they failed to post a $500,000 bond to continue the litigation under sections 391.3 and 391.4. The Golins contend that the order must be reversed because it found them to be vexatious litigants even though they did not meet the statutory criteria for this finding. They further contend that the order must be reversed because it determined, without legal basis, that there was no reasonable probability of their prevailing in the action, a mandatory determination under section 391.1 before the court can require a vexatious litigant to furnish security. We conclude that the trial court did not abuse its discretion in finding the Golins to be vexatious litigants under section 391, subdivision (b)(3). But because nothing in the record supports the court's conclusion that the Golins have no reasonable probability of prevailing in the action, or any part of it, we reverse the order of dismissal.


I. Factual Background*fn2

A. Historical Facts

In 2001, the Golins' daughter Nancy, a woman in her 30's with developmental disabilities, was living in their care and custody, as she had all her life. In November of that year, Nancy was with her mother, Elsie, at Elsie's studio in Palo Alto when Nancy wandered off.*fn3 The Golins began looking for Nancy and called the authorities. But Nancy was not found until she returned on her own the next morning. On her return, police suggested that Nancy should be examined at Stanford Medical Center to ensure that no harm had come to her. And the incident triggered an investigation by authorities into Nancy's living circumstances.

While in the hospital, Nancy was subjected to a Welfare and Institutions Code section 5150 psychiatric hold. After a detention hearing, Nancy was ordered released and the Golins went to the hospital to pick her up. But there, they engaged with security guards and Nancy, ostensibly in state custody, was taken to another location unknown to the Golins. According to the Golins and despite their efforts, they did not learn of Nancy's location until 11 months later when, on the application of the California Department of Developmental Services, the probate court appointed a temporary, private conservator over Nancy and set later proceedings to address her conservatorship on a long-term basis.

Meanwhile, in November 2001, the Golins were arrested on a felony charge of adult dependent abuse as a result of police investigation into Nancy's living circumstances when she wandered off. The Golins posted bail and were released but not before Elsie was held overnight and a psychiatrist examined her in connection with a possible psychiatric detention. The criminal charges were ultimately dismissed on January 29, 2003.

B. The Conservatorship Proceeding

In October 2003, the probate court conducted a three-week trial to resolve the question of Nancy's conservatorship. As noted, the proceedings were initiated by the Department of Developmental Services (acting through the San Andreas Regional Center (SARC) and Embee Manor, where Nancy then resided), which petitioned the court for its Director to serve as Nancy's permanent, limited conservator. (Prob. Code, §§ 1801, 1820, subd. (a)(4).) The Golins, named as respondents and representing themselves, strenuously opposed the conservatorship and they alternatively sought an order naming themselves as Nancy's conservators. On October 22, 2003, after several judicial challenges under section 170.6 by one or both of the Golins and their unsuccessful efforts to disqualify attorneys for other parties,*fn4 the court granted relief and issued a comprehensive Statement of Decision. It determined that (1) Nancy lacks the capacity to care for her own physical and financial needs and therefore a limited conservatorship was justified; (2) the Golins are "unable to provide for the best interests of their daughter, Nancy Golin, because of their history of continuous conflicts with most medical and other professionals;" (3) "the history of conflict between the Golins also renders them unfit to serve as Nancy Golin's conservator;" and (4) based on numerous instances in which Nancy suffered burns, food poisoning, and many disappearances while under her parents' care, "there is clear and convincing evidence that the Golins' past history of neglect and abuse renders them unable and unfit to provide for the best interests of Nancy Golin as her conservator." The court placed Nancy in permanent conservatorship in the custody of the State Department of Developmental Services and granted enumerated powers to the Director through which to act.

The court's Statement of Decision further noted that the Golins' conduct during the proceedings showed a clear pattern of inappropriate behavior, including witness coaching, misleading the court, evasiveness, late appearances, interruptions, and other disruptive conduct and that they had resisted providing the court with information about their finances and living situation that bore on their ability to act in the capacity of conservators over Nancy.*fn5

C. The Golins' Federal Action

The day after the probate court issued its Statement of Decision resolving the question of Nancy's conservatorship, the Golins filed an action in the federal district court. As self-represented litigants, they named themselves and Nancy as individual plaintiffs. They named as defendants, among others, multiple local and state agencies, and employees of those agencies--virtually everyone affiliated with Nancy's conservatorship proceeding and her ongoing custody and care. For example, in addition to Clifford B. Allenby, the former Director of the California Department of Developmental Services, named as defendants were Lori Kratzer of the City of Palo Alto Police Department, who had investigated reports that the Golins had neglected and abused Nancy, and Malorie Street, the attorney from the Office of the Public Defender who had been appointed to represent Nancy's interests in the conservatorship proceeding.

The Golins' 69-page first amended complaint in the federal court alleged in 12 counts civil rights violations (due process and equal protection), a conspiracy to deprive them and Nancy of their civil rights based on the removal of Nancy from the Golins' custody, and deficiencies in Nancy's care and treatment since then.*fn6 They also alleged fraud, slander, malicious criminal prosecution, wrongful imprisonment, and infliction of emotional distress. They sought damages and injunctive relief, as well as Nancy's return to their custody, but the complaint did not specify which plaintiffs were asserting which claims.

In April 2004, the district court granted a defense motion to dismiss the Golins' first amended complaint under rule 12(b)(6) of the Federal Rules of Civil Procedure. As to plaintiff Nancy Golin, who as a conservatee lacks capacity to appear in an action on her own behalf, the court's order determined that the Golins lacked standing to pursue her claims, concluding that under rule 17 of the Federal Rules of Civil Procedure and California law (§ 372), a conserved person must appear in an action through a guardian approved by the court or an appointed conservator. The order observed that where an incompetent person is so represented, it is only when the representative is unable to or refuses to act, or there is a conflict between the person and their representative, that a "next friend," as the Golins attempted to qualify themselves, may appear in an action on a conservatee's behalf. And the court concluded that none of these circumstances applied. Moreover, the court noted, constitutional challenges in the federal court may not be vicariously asserted for another through a non-lawyer.

The court also viewed the Golins' federal action that in part sought to regain custody over Nancy as an attempt to supplant the California probate court's prior order, which had already decided Nancy's status as a conservatee and her custodial needs, retaining ongoing jurisdiction to address these issues. Citing federal-abstention doctrines and jurisdictional grounds--centered on the lack of authority of federal courts to directly or indirectly review final state-court determinations--the court rejected this attempt.*fn7 And the court noted that because the Golins had a remedy in state court for asserted wrongs arising from the conservatorship proceedings--a challenge to the conservator through a removal proceeding under the Probate Code--there was no deprivation of due process. As to most of the Golins' state-law claims that the court perceived as independent from a collateral attack on the probate court's order, the court declined to exercise supplemental jurisdiction to adjudicate them in the absence of an independent basis for federal jurisdiction, concluding that the claims could be brought in state court. But the court did determine that for section 1983 (42 U.S.C. § 1983) purposes, the Golins had failed to state a claim for malicious criminal prosecution on which relief could be granted. Finally, the court's order rejected as frivolous the Golins' challenge (asserted three times) to U.S. District Court Judge William Alsup's ability to be impartial and to decide the case according to law. The Golins appealed to the Ninth Circuit Court of Appeals, which affirmed the dismissal of the action in June 2005. The Golins then petitioned for a writ of certiorari in the United States Supreme Court, which was denied in March 2006.

II. Procedural Background

A. The Complaint

On April 26, 2006, the Golins, through New York counsel Gerard W. Wallace (who appeared as counsel pro hac vice),*fn8 filed this action in the Sacramento County Superior Court. Again named as individual plaintiffs were the Golins and Nancy. There were numerous named defendants, again local and state agencies and their employees involved in events leading to Nancy's conservatorship and her care.*fn9 The 110-page complaint purported to assert 19 causes of action, many of which had been similarly alleged in the federal action. One distinction was that in this action, the Golins did not expressly seek to regain custody over Nancy, as they had in the federal proceedings. But the core factual allegations giving rise to the claims all related to the search of the Golins' home in connection with Nancy's brief disappearance, the criminal prosecution of the Golins, the removal of Nancy from their custody, and Nancy's treatment while in state custody.

Shortly after filing the complaint, which was not immediately served, the Golins submitted an ex parte application, with no notice to any defendants, for an order appointing Elsie as Nancy's guardian ad litem to represent her interests in the action. The application, which was granted, contended that the appointment was needed because Nancy's conservator was a defendant in the action and it was thus necessary for a third party to represent Nancy's interests and protect her rights as asserted in the complaint.

In August 2006, the Golins filed their 135-page verified first amended complaint, the operative pleading in the action. It named additional parties as defendants and purported to allege 17 causes of action, all of which stemmed from the same essential operative facts alleged in the initial complaint.*fn10

B. Change of Venue

In July 2006, before any formal appearance by defendants in the action, some of them moved on numerous grounds to change venue from Sacramento County to Santa Clara County. Over the Golins' objection, the motion was granted by written order filed October 10, 2006, under section 394. The Golins, with Jeffrey now representing himself, moved for reconsideration of the order, but in response, the court affirmed its prior order transferring venue to Santa Clara County. The Golins petitioned for a writ of mandate in the Third District Court of Appeal but that was denied. They also petitioned for review in the California Supreme Court but that too was denied.

Before the case was formally transferred to Santa Clara County, and although the entire action was already stayed, defendant SARC sought a stay of the court's prior order appointing Elsie Golin as Nancy's guardian ad litem pending a formal motion to vacate the order. The asserted basis of the request was that a specific stay of the guardian-ad-litem order was necessary because the Golins were improperly using it to acquire Nancy's medical records. The application for a stay of the order was heard by a different judge than the one who had originally granted the order. Rather than just stay the order as requested, the court vacated it, concluding that Elsie had been erroneously appointed guardian ad litem for Nancy without notice to anyone and without the court having been provided the Santa Clara County Superior Court's Statement of Decision in the probate proceeding in which Nancy had been conserved, which the court then had before it. The court also agreed that the Golins were ...

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