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Danny Hance et al v. Gregory D. Smith

December 21, 2010

DANNY HANCE ET AL., CROSS-COMPLAINANTS AND RESPONDENTS,
v.
GREGORY D. SMITH, CROSS-DEFENDANT AND APPELLANT.



Super. Ct. No. GIC847788 APPEAL from orders of the Superior Court of San Diego County, William R. Nevitt, Jr., Judge.

The opinion of the court was delivered by: O'rourke, J.

Hance v. Smith CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Orders affirmed. Motion to dismiss denied. Motion for sanctions granted.

Gregory Smith appeals from orders (1) granting the motion of Danny and Jennifer Hance to declare him a vexatious litigant under Code of Civil Procedure*fn1 section 391, et seq.; (2) denying Gregory's motion to compel arbitration; and (3) awarding Danny Hance $2,853.85 in appellate attorney fees and costs. The parties are pro per litigants.*fn2 Gregory contends the superior court's determination of his vexatious litigant status is not based on substantial evidence, denial of his petition to compel arbitration did not conform with section 1281.2 and case law, and the court erred in awarding Danny Hance attorney fees because the matter litigated was not covered by any contract or, alternatively, the parties waived Civil Code section 1717 attorney fees.

The Hances move to dismiss Smith's appeal and request for an order that he pay sanctions, arguing the appeal is frivolous and filed with the sole intent to harass them or to delay. We decline to dismiss the appeal, but reaching the merits we conclude Gregory's appeal is frivolous in that it was filed with intent to delay enforcement of the Hances' substantial judgments against him. Accordingly, we affirm the orders and grant the Hances' motion for sanctions.

FACTUAL AND PROCEDURAL HISTORY

The parties have been involved in four prior appeals before us, all initiated by one or both of the Smiths. The first involved the Smiths' appeal from an order in the Hances' favor (Hon. Francis Devaney) issuing a three-year civil injunction against harassment, an order that we upheld. (Smith v. Hance (May 4, 2007, D047471) [nonpub. opn.].) The second was Gregory's appeal from an order (Hon. William Nevitt) denying his motion to dissolve the civil harassment injunction, which we affirmed. (Hance v. Smith (Mar. 3, 2009, D051917) [nonpub. opn.].) The third was Steven's appeal from an order (Hon. Ronald Prager) denying his section 425.16 special motion to strike a cross-complaint filed by the Hances, an order that we reversed as to one (defamation) cause of action but affirmed as to the remaining, leaving the Hances with causes of action against the Smiths for breach of contract, civil harassment, and invasion of privacy. (Smith v. Hance (Nov. 10, 2009, D054295) [nonpub. opn.].) The most recent appeal was Gregory's appeal from an order (Hon. Richard Strauss) confirming an arbitration award in the Hances' favor and ordering Gregory to pay the Hances $357,060.85, comprising the amount of the original award plus $78,464.85 in interest. (Smith v. Hance (Aug. 19, 2010, D055825) [nonpub. opn.], review denied Nov. 10, 2010, S186898.) On our own motion we take judicial notice of our prior unpublished appellate opinions and appellate records in these matters. (Evid. Code, §§ 452, subd. (d) [judicial notice may be taken of court records], 459; Cal. Rules of Court, rule 8.1115(b)(1); Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171, 1173 [court may take judicial notice of prior unpublished opinions in related appeals on its own motion].)

Underlying these appeals was a July 2003 handwritten memorandum of understanding (MOU)*fn3 signed by Steven, the Hances and Gilda Mullette (another neighbor involved in the underlying disputes), which was reduced to a December 2003 judgment, and several ensuing San Diego Superior Court civil actions filed by Gregory or both Smiths against the Hances. Also involved in these appeals were unsuccessful motions or requests brought by Gregory, one of which he characterized as a section 425.16 special motion to strike and filed 17 days before the start of trial on the parties' cross-requests for restraining orders. (Smith v. Hance, supra, D047471.) In our opinion upholding the civil harassment injunction, we held Gregory's motion was properly rejected by the trial court for lack of proper notice alone, constituting a violation of fundamental principles of due process. (Smith v. Hance, supra, D047471.) In May 2007, Judge Randa Trapp awarded Danny Hance sanctions against Gregory finding he had made a request in connection with the Hances debtor's exam that was frivolous and solely intended to cause delay.*fn4 In a separate opinion, we observed that Hance had opposed Gregory's ultimately unsuccessful August 2007 motion to dissolve the civil harassment injunction in part on grounds Gregory had lost a virtually identical motion before another superior court judge. (Hance v. Smith, supra, D051917.) In June 2009, Danny Hance moved for an award of $4,353.85 in attorney fees and costs incurred in the appeal of Judge Nevitt's order denying Gregory's motion to dissolve the civil harassment injunction in case No. GIC847788. On August 18, 2009, the Hances followed with a motion to declare Gregory a vexatious litigant under section 391 on grounds he had filed at least five different legal proceedings against them, as well as numerous frivolous motions and other requests assertedly intended to delay. The Hances asked the court to take judicial notice of 13 different superior court and appellate court "cases," notices of appeal, and other matters filed by Mullette or one or both of the Smiths.*fn5

Gregory responded by moving for an order compelling arbitration under the parties' MOU and seeking a stay of the proceedings. He argued the attorney fees on appeal were awarded on an arbitrable issue; that the matter had been ordered to arbitration but it was not arbitrated because Hance had "abandoned" the arbitration. He maintained the attorney fees could only be awarded at arbitration and that the Hances' efforts to obtain the fees from the court, including the Court of Appeal, was a violation of the MOU. He opposed the Hances' motion to declare him a vexatious litigant, arguing in part that he did not file repeated unmeritorious motions, pleadings or other papers, or engage in any other tactics that were frivolous or solely intended to cause unnecessary delay. He also opposed their request for judicial notice on grounds the Hances did not attach the actual materials to be judicially noticed under California Rules of Court, rule 3.1306, subdivision (c). Gregory later filed a "sur-reply" brief opposing the Hances' request for appellate attorney fees.

The Hances replied to Gregory's opposition by identifying questions that Gregory had unsuccessfully relitigated numerous times in the present case and in other cases. They pointed to Gregory's failed appeal of the civil harassment injunction, his failed section 425.16 special motion to strike, two failed motions to dissolve the civil harassment injunction, his failed appeal of the trial court's order denying the dissolution motion, and his latest motion to compel arbitration. The Hances argued that in at least four of those proceedings Gregory repeated the same argument: that the case should have been arbitrated. They asserted he had repeatedly engaged in tactics that were frivolous or intended to delay, including attempts to avoid the court-ordered arbitration in case Nos. GIC847788 and GIC845889, unsuccessfully moving to stay his debtor's exam (for which he was sanctioned), unsuccessfully moving in May 2009 to vacate the arbitration award against him, and moving in the instant case to compel arbitration.

The Hances also opposed Gregory's motion to compel arbitration. They argued his assertions that Danny Hance had abandoned or refused arbitration were false; that in fact, it was Gregory who had abandoned the arbitration by failing to file an arbitration demand, claiming he was not bound by the MOU and then failing to pay the arbitration fee.*fn6 They asserted that in January 2008, JAMS notified the parties it was "recusing" itself from conducting the arbitration and directed them to follow up with the superior court. Based on all of these facts, the Hances argued Gregory knew arbitration was not an option, and sought sanctions on grounds his motion was made in a further attempt to harass them.

Following oral arguments on the matter, the superior court awarded Danny Hance $2,853.85 in appellate attorney fees and costs against Gregory, and denied Gregory's motion to compel arbitration. Granting the Hances' request for judicial notice, it further ruled, among other rulings, the Hances had established that Gregory was a vexatious litigant under section 391, subdivision (b)(3), which the court found was "reinforced" by its contemporaneous denial of Gregory Smith's motion to compel arbitration and for a stay of the Hances' proceedings. It ordered entry of a prefiling order under section 391.7, subdivision (a), prohibiting Gregory from filing any new litigation in propria persona without first obtaining approval of the presiding judge of the court where the action is to be filed.

Gregory appeals from the ...


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