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Danny Hance et al v. Gregory D. Smith


December 21, 2010


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


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.


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 postjudgment orders.


I. Vexatious Litigant Order

A. Vexatious Litigant Standards and Appellate Standard of Review

Section 391 sets forth four circumstances defining a vexatious litigant. Relevant here is section 391, subdivision (b)(3), which applies to any person who, "[i]n any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay."*fn7 Section 391 broadly defines "litigation" as meaning "any civil action or proceeding, commenced, maintained or pending in any state or federal court" and thus includes any appeal proceeding. (See In re R.H. (2009) 170 Cal.App.4th 678, 693 [taking into account appeals and writ proceedings filed by the plaintiff in determining he was a vexatious litigant under section 391, subdivision (b)(1)]; Fink v. Shemtov, supra, 180 Cal.App.4th at pp. 1170-1173 [but holding summarily denied writ petition does not necessarily constitute a litigation that has been finally determined adversely to the person within the meaning of subdivision (b)(1) of section 391], citing McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1215-1216, disagreed with in Mahdavi v. Superior Court (2008) 166 Cal.App.4th 32, 40-42.) For purposes of subdivision (b)(3) of section 391, it is within the trial court's broad discretion to determine whether motions, papers or pleadings are "repeated" or "unmeritorious." (Morton v. Wagner (2007) 156 Cal.App.4th 963, 971, citing Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1505-1506.) Evidence that a litigant is a frequent plaintiff or defendant alone is insufficient to support a vexatious litigant designation. (Morton, at p. 969.)

The trial court exercises its discretion in determining whether a person is a vexatious litigant. (Fink v. Shemtov, supra, 180 Cal.App.4th at p. 1169; Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.) We review the trial court's vexatious litigant ruling for substantial evidence. (Bravo, at p. 219; Morton v. Wagner, supra, 156 Cal.App.4th at p. 969.) "Because the trial court is best situated to receive evidence and hold hearings on the question of whether a litigant is vexatious, on appeal, we are required to presume the order declaring a litigant vexatious is correct and to [infer] findings necessary to support that designation. [Citation.] Of course, we can only [infer] such findings where there is evidence to support them. Where there is insufficient evidence to [infer] findings in support of the designation, reversal is required." (Morton, at p. 969.) Questions of statutory interpretation are reviewed de novo. (Fink, at p. 1169.)

As the appellant, Gregory must affirmatively show error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) "The party appealing has the burden of overcoming the presumption of correctness. For this purpose, [he] must provide an adequate appellate record demonstrating the alleged error. Failure to provide an adequate record on an issue requires that the issue be resolved against the appellant." (Defend Bayview Hunters Point Committee v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 859-860, citing Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)

B. Analysis

Gregory contends the court's vexatious litigant finding is not supported by substantial evidence; that "the record does not make a finding that appellant's motions were so numerous, 'unmeritorious' or 'frivolous' as to come within the meaning of the vexatious litigant legislation." Gregory maintains he did not repeatedly file motions "under any objective standard" and that his motions, "while unsuccessful, were not the 'unmeritorious' or 'frivolous' types of motions contemplated by the vexatious litigant statute." More specifically, he asserts neither Jennifer Hance's declaration and its exhibits, nor the Hances' request for judicial notice, provide evidentiary facts needed to support a vexatious litigant determination. According to Gregory, the Hances presented only 20 matters as evidence, none of which assertedly supported the court's order.

Gregory's arguments fail for various reasons. As a threshold matter, his recitation of the underlying facts -- amounting to about one page of text -- is woefully deficient, and is not a fair summation of all of the material evidence. Gregory has a duty to summarize the relevant underlying facts fairly, and rather than doing so, he has made a slanted presentation that reads more like argument, without any effort to state facts tending to support the trial court's findings. (Cf. Ajaxo Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 50.) And in a sufficiency of the evidence review, this court begins with the presumption that the record contains evidence to sustain every finding of fact. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Accordingly, in view of Gregory's failure to provide a fair and complete summary of the evidence in favor of the trial court's order, he has arguably forfeited any contentions regarding the sufficiency of the evidence. (Ajaxo, at p. 50; see also Foreman, at p. 881; Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247; County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274.)

Further, Gregory misunderstands the relevant substantive and evidentiary standards and cites inapposite case law. In particular, Gregory relies on frivolous appeal standards set out in In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 (Flaherty) and San Bernardino Community Hospital v. Meeks (1986) 187 Cal.App.3d 457, to argue that the Hances were obligated to make a showing of his subjective intent to delay by clear and convincing evidence. He argues, without authority and contrary to the above-summarized vexatious litigant standards, that such proof "cannot be inferred." We have found no authority, and Gregory cites none, applying the frivolous appeal standards or the clear and convincing burden of proof to the vexatious litigant determination. But even were such standards to apply, the Hances were not limited to showing Gregory engaged in frivolous tactics or tactics solely intended to delay; subdivision (b)(3) of section 391 is disjunctive, and allowed the trial court to declare Gregory a vexatious litigant on a finding that he repeatedly filed unmeritorious motions, pleadings or other papers while in propria persona.

Gregory argues under Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, at page 55 (disagreed with in In re Bittaker (1997) 55 Cal.App.4th 1004, 1006, fn. 1, and questioned in PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 975-976) the record must show his motions were a flagrant abuse of the system, had no reasonable probability of success, lacked probable cause, and were clearly meant to abuse the court's processes and harass his adversary or other litigants. But deciding whether a person is a vexatious litigant is distinct from the question of whether one who has been previously declared vexatious may be required to furnish security. (§ 391.1, 391.3; see Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 783 [person previously declared a vexatious litigant may be required to furnish security if the trial court determines there is no reasonable probability he or she will prevail]; In re R.H., supra, 170 Cal.App.4th at p. 693 [question whether to declare one a vexatious litigant is distinct from the question of whether a prefiling order applies to a person's appeal].) Section 391, subdivision (b)'s definitions contain no requirement that a trial court find a person's pleadings, motions or other papers without any reasonable probability of success. (§ 391, subd. (b).) The statute does not require the Hances to demonstrate Gregory had no reasonable probability of prevailing in the relevant litigations or other matters. (See Fink v. Shemtov, supra, 180 Cal.App.4th at p. 1175.)

At the cited page, the Wolfgram court, which rejected the plaintiff's contention there that the vexatious litigant and prefiling statutes impermissibly chilled the right to petition (Wolfgram, supra, 53 Cal.App.4th at pp. 55-59), was discussing the federal antitrust law "sham exception" doctrine for the filing of lawsuits as part of an overview of the constitutional right to petition. (Id. at pp. 51-55.) It did not apply the sham exception principles to the vexatious litigant inquiry. Indeed, the Wolfgram court recognized that the subdivision at issue in that case, subdivision (b)(1) of section 391, "does not include a requirement that the five losing suits [filed in seven years] be frivolous. . . ." (Id. at p. 58, italics omitted.) The court observed that the omission did not render the statute unconstitutional. (Ibid.) Wolfgram does not support Gregory's contention, and it in any event does not address standards relevant to subdivision (b)(3) of section 391, the subdivision relied upon by the trial court here in granting the Hances' motion. For these reasons, we disagree with the Sixth District's application in Morton v. Wagner, supra, 156 Cal.App.4th 963, 972-973 of Wolfgram's sham standards to the determination of a vexatious litigant under subdivision 391, subdivision (b)(3).

Gregory finally maintains the Hances' request for judicial notice does not support the trial court's finding. Pointing out he opposed the request, he argues the court could only properly take judicial notice of the facts asserted in orders, findings of fact and judgments. He argues the Hances failed to comply with California Rules of Court, rule 3.1306(c) (rule 3.1306(c)). Gregory correctly points out that facts that are reasonably subject to dispute are not the proper subject of judicial notice.

These challenges to the trial court's judicial notice order are unavailing. Gregory objected below to the Hances' request for judicial notice on the sole ground the Hances had not provided him or the court with copies of the materials sought to be noticed as required by rule 3.1306(c). However, the Hances' request sought judicial notice of several court files, and when that is the case, rule 3.1306 only requires the party to specify the parts of the file to be judicially noticed and make arrangements to have the file in the courtroom at the time of the hearing. (Rule 3.1306(c)(1), (2).) To the extent Gregory seeks for the first time on appeal to raise a violation of those provisions of the Rules of Court, or to challenge the Hances' request on grounds the trial court cannot judicially notice certain findings of fact, he has waived those objections. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29, disagreed with on other grounds in San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315.)

In any event, the trial court was entitled to judicially notice the existence of various orders and decisions and the fact that Gregory's motions and petitions were denied and his appeals unsuccessful. There is nothing in the record indicating the trial court, in ruling on the Hances' motion under section 391, took judicial notice of the truth of any factual finding or hearsay allegation, as opposed to the results of Gregory's motions and other litigation endeavors. Also, the trial court has broad authority over the admission and exclusion of evidence (Green v. Buzgheia (2006) 141 Cal.App.4th 1150, 1156; North American Capacity Ins. Co. v. Claremont Liability Ins. Co. (2009) 177 Cal.App.4th 272, 287), and in the interest of deciding cases on their merits, it likewise has discretion to decide whether to require strict compliance with the Rules of Court. (E.g., Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364.) The trial court's order recognized the applicable Rule of Court, as it reminded the Hances to comply with it. During oral argument, the court stated it had "devoted a substantial amount of time for going through [the parties'] motions and their papers," reflecting it had carefully considered the records before it. Particularly in a matter involving two self-represented parties, we perceive no reason to second-guess the trial court's discretion to take judicial notice of matters contained in court files even though they may not have been specifically identified or listed in the Hances' papers.

Finally, Gregory's approach ignores a fundamental point: that this court presumes the correctness of the trial court's orders granting judicial notice and declaring him a vexatious litigant under subdivision (b)(3) of section 391, and indulges all intendments and presumptions in favor of its correctness. (Denham, supra, 2 Cal.3d at p. 564; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.) This means that we presume in favor of the orders that the trial court had evidence before it to sustain all of its findings of fact: all of the case files and notices of appeal, and we further presume the files contained the unmeritorious motions, pleadings and other papers, as well as their accompanying orders, identified by Jennifer Hance in her reply papers.

Here, the court granted the Hances' request for judicial notice of all the listed cases and appeals with the exception of a citizen's arrest citation, but except for a few orders, none of the case files is in the appellate record and we cannot tell what the trial court actually received or saw. It was for Gregory to demonstrate the court either did not have the case files before it; that the files were devoid of his unmeritorious motions, pleadings, or other papers; that his motions or other papers were not unmeritorious; or the court had no basis to judicially notice the unmeritorious papers and other matters appearing in those files. But Gregory mostly repeats objections that he has forfeited on appeal by failing to raise them below: that the Hances' request for judicial notice did not list the referenced documents, and that it is not proper to take judicial notice of hearsay allegations.*fn8 He has not made the required showing. Because Gregory has not demonstrated reversible error with an adequate record, we affirm the trial court's vexatious litigant order. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296.)

II. Smith's Petition to Compel Arbitration

In denying Gregory's petition to compel arbitration, the trial court ruled: "In its opinion filed March 3, 2009, the Court of Appeal determined that Danny Hance is entitled to attorney fees and costs on appeal against Gregory Smith incurred by Gregory Smith's appeal of this Court's October 2, 2007[] order denying Gregory Smith's motion to dissolve the injunction. The Court of Appeal ordered 'the trial court' to determine the 'proper amount.' [¶] Gregory Smith's motion to compel arbitration asks, in effect, that this Court ignore the Court of Appeal's order, and his motion is denied."

Gregory contends the court abused its discretion in this ruling. He maintains it was obligated to, but did not, make required findings as to the existence of a written agreement to arbitrate a specific controversy and the Hances' refusal to arbitrate the matter. He asserts he did not ask the trial court to ignore this court's order, which he characterizes as "mistaken[]" because the parties assertedly waived attorney fees having chosen to litigate instead of arbitrate. The Hances respond that Gregory's position is directly contrary to one that he previously took in his latest appeal, in which he argued the disputes between the parties were not arbitrable because he was not a party to or bound by the MOU. They argue the arbitrability issue Gregory raises have been decided and reviewed on appeal numerous times.

Gregory's arguments patently lack merit. His motion to compel arbitration fails for a threshold reason: he did not prove the Hances ever "abandoned" or refused arbitration of a dispute or controversy arising out of the parties' MOU. Proof of the Hances' refusal is a prerequisite to bring a successful petition to compel arbitration under section 1281.2. (Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 640 [section 1281.2 requires a party seeking to compel arbitration to plead and prove a prior demand for arbitration under the parties' arbitration agreement and a refusal to arbitrate under the agreement].) Indeed, we are well aware from our prior opinions that the Hances repeatedly demanded arbitration of the parties' disputes (see footnote 6 ante and Smith v. Hance, supra, D047471) and successfully obtained a substantial award against Gregory in arbitration (Smith v. Hance, supra, D055825). Our prior decision noted that it was Gregory who evaded Judge Devaney's arbitration orders by failing to pay the arbitration fee (see footnote 6, ante).

Were we to reach the merits of the trial court's order denying Gregory's petition, we would nevertheless uphold it. Our review is de novo because the language of the arbitration provision is not in dispute and the trial court did not otherwise resolve factual disputes in reaching its decision. (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 707; Titolo v. Cano (2007) 157 Cal.App.4th 310, 316.) On such de novo review, we are not bound by the trial court's findings. (In re Tobacco Cases I (2004) 124 Cal.App.4th 1095, 1105.)

" 'To determine whether a contractual arbitration clause requires arbitration of a particular controversy, the controversy is first identified and the issue is whether that controversy is within the scope of the contractual arbitration clause.' " (Titolo v. Cano, 157 Cal.App.4th at p. 316, quoting In re Tobacco Cases I, supra, 124 Cal.App.4th at p. 1106.) While doubts as to the meaning and interpretation of an arbitration agreement are resolved in favor of requiring arbitration, " '[t]here is no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate.' [Citation.] Therefore, the second policy guiding our decision is that no dispute may be ordered to arbitration unless it is within the scope of the arbitration agreement. 'In determining the scope of an arbitration clause, "[t]he court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made [citation]." [Citation.]' [Citation.] '[T]he terms of the specific arbitration clause under consideration must reasonably cover the dispute as to which arbitration is requested.' " (Titolo v. Cano, supra, 157 Cal.App.4th at p. 317.)

" '[A]n order to arbitrate a particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.' " (Ibid.) Applying these principles, Gregory's contention fails. The parties' arbitration clause covers future violations of, and disputes arising out of the MOU or settlement agreement. It is simply not susceptible of any interpretation that would allow a court to, in disregard of this court's directions on remand, order an arbitrator to decide the amount of appellate attorney fees previously ordered pursuant to this court's prevailing party determination. The trial court was bound by that determination, which, as we explain below, is law of the case. (See Benson v. Greitzer (1990) 220 Cal.App.3d 11, 14 ["If the prior appellate opinion expressly ruled . . . upon a party's entitlement to attorney's fees, the trial court is bound to follow the appellate court's expressions on the subject, under principles of law of the case"].) Gregory has pointed to no authority permitting arbitration of the amount of an attorney fee award in circumstances like those presented here. As a matter of law, the determination of the amount of appellate attorney fees is a matter this court has directed the trial court to decide on remand; it is simply not a dispute, controversy or cause of action between the parties within the meaning of the parties' arbitration clauses.

III. Appellate Attorney Fees

Gregory contends the superior court erred by awarding Danny Hance $2,853.85 in appellate attorney fees and costs incurred in Hance v. Smith (Mar. 3, 2009, D051917), in which he appealed the denial of his motion to dissolve the civil harassment injunction. Gregory does not contest the reasonableness or amount of fees, rather he challenges the superior court's order on grounds Hance is not entitled to such fees, maintaining the court erred because the matter litigated was not covered by the parties' MOU, or alternatively the parties had waived the right to recover contractual attorney fees under Civil Code section 1717. Gregory's arguments as to Hance's entitlement to appellate attorney fees and costs, however, fail under the doctrine of law of the case.

As the trial court here recognized, we held in Hance v. Smith, supra, D051917, that Hance was entitled to recover reasonable attorney fees on appeal from Gregory under Civil Code section 1717, subdivision (a) and the parties' MOU. We remanded the matter to the trial court for determination of the proper amount of fees.

When, as here, an appellate court has rendered a decision and states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to in all subsequent proceedings in the same action. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491; People v. Stanley (1995) 10 Cal.4th 764, 786-787; Davies v. Krasna (1975) 14 Cal.3d 502, 507 ["a matter adjudicated on a prior appeal normally will not be relitigated on a subsequent appeal in the same case"].); Wilder v. Whittaker Corp. (1985) 169 Cal.App.3d 969, 972 [" 'decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case' "].) A court will decline to adhere to the doctrine only under two circumstances: (1) where the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations, or (2) where there has been a manifest misapplication of existing principles resulting in substantial injustice. (Morohoshi, at pp. 491-492, citing Stanley, at p. 787.) "The unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination." (Morohoshi, at p. 492.) And there is no manifest misapplication of legal principles where the authorities on which the prior decision relied fully support its conclusions. (Stanley, at p. 788.)

Gregory's attorney fee challenge fails under the law of the case doctrine, as he merely seeks to revisit our prior conclusion finding Hance entitled to appellate attorney fees. (See Benson v. Greitzer, supra, 220 Cal.App.3d at p. 14.) Gregory has not shown any exception applies, and we conclude neither applies here.

IV. Motion for Sanctions

California Rules of Court, rule 8.276(e)(1) allows a court to impose sanctions on a party or an attorney for the taking of a frivolous appeal or appealing solely to cause delay. An appeal is frivolous "when it is prosecuted for an improper motive -- to harass the respondent or delay the effect of an adverse judgment -- or when it indisputably has no merit -- when any reasonable attorney would agree that the appeal is totally and completely without merit." (Flaherty, supra, 31 Cal.3d at p. 650.) California courts apply both objective and subjective standards to determine whether an appeal indisputably has no merit. "The subjective standard looks to the motives of the appealing party and his or her attorney, while the objective standard looks at the merits of the appeal from a reasonable person's perspective. [Citation.] Whether the party or attorney acted in an honest belief there were grounds for appeal makes no difference if any reasonable person would agree the grounds for appeal were totally and completely devoid of merit." (Cox v. County of San Diego (1991) 233 Cal.App.3d 300, 313, overruled on other grounds in Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8.)

We hold that Gregory's deficient briefing, his misplaced analysis pertinent to the questions at hand, and his citation to wholly inapposite authorities, render his appeal objectively frivolous under the Flaherty standard. (See, e.g., Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32 & fn. 9 [appellant's utter failure to discuss pertinent legal authority, preparation of an inadequate appellate record, and attempt to assassinate opposing party's character based on facts finding no support in the record demonstrate that appeal was subjectively presented for an improper purpose and solely for delay, not because of any good faith belief in the appeal's validity].)

We also conclude Gregory's appeal is subjectively frivolous. Having reviewed our prior opinions, we conclude Gregory's appeal was filed solely in an attempt to delay enforcement of the attorney fees award against him (which was an issue decided in our prior March 3, 2009 opinion) and to keep the Hances embroiled in legal proceedings to hinder their efforts to recover substantial money judgments and fee awards against him.

We are aware that sanctions should be sparingly used to "deter only the most egregious conduct" (Flaherty, supra, 31 Cal.3d at p. 651), and that merely because an appeal lacks merit does not, alone, establish it is frivolous. (See Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422.) This appeal is beyond merely lacking in merit. No reasonable attorney could have contemplated that Gregory's appeal of the trial court's vexatious litigant determination would be meritorious under all of the facts and circumstances of this case.

In deciding the measure of sanctions, relevant inquiries are the goals of compensating the parties for expenses occasioned by the appeal and to deter similar conduct in the future. (Flaherty, supra, 31 Cal.3d at p. 647.) The amount of attorney fees reasonably incurred in responding to a frivolous appeal is one possible measure of sanctions. (See In re Marriage of Economou (1990) 223 Cal.App.3d 97, 108.) Another possible measure is the cost imposed on the court system by the waste of time and resources in processing and deciding a frivolous appeal. (See Keitel v. Heubel (2002) 103 Cal.App.4th 324, 343 ["A recent conservative estimate of the cost to the state of processing an average civil appeal is $6,000."].)

In their motion, the Hances do not describe any attorney fees or expenses they have incurred on this appeal; Jennifer Hance states their legal fees for the past several years of litigation initiated by both Smiths have exceeded $290,000, and though they do not keep their attorneys on a retainer, they still consult with them on all matters and continue to be billed on a monthly basis. Because we have nothing before us concerning the Hances' expenses, we direct our focus on the undue burden this appeal has placed on the legal system and the consumption of this court's precious resources. " ' "Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are prejudiced by the useless diversion of this court's attention. [Citation.] In the same vein, the appellate system and the taxpayers of this state are damaged by what amounts to a waste of this court's time and resources. [Citations.] Accordingly, an appropriate measure of sanctions should . . . compensate the government for its expense in processing, reviewing and deciding a frivolous appeal." ' " (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1433.) Under the circumstances, we impose a $6,000 sanction on Gregory payable to this court's clerk.


The orders are affirmed. We find Gregory's appeal to be frivolous and assess sanctions against him in the amount of $6,000 for the cost to the taxpayers of processing this appeal, which sum shall be due and payable to the clerk of this court within 30 days of the issuance of the remittitur. The Hances are entitled to their costs on appeal.


HALLER, Acting P. J.


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