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In re Marriage of Rifkin

California Court of Appeals, First District, Fourth Division

March 6, 2015

In re Marriage of RICHARD A. RIFKIN and KIMBERLY DAWN CARTY
v.
KIMBERLY DAWN CARTY, Respondent. RICHARD A. RIFKIN, Appellant,

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

San Francisco Superior Court Super. Ct. No. FDI11773974 Hon. Linda Colfax Judge:

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COUNSEL

Archibald Cunningham and Flora Garcia-Sepulveda for Appellant.

Kimberly Dawn Carty and L. Bailey Penzotti for Respondent.

OPINION

Rivera, J.

This appeal arises from a long and contentious child custody dispute between appellant Richard A. Rifkin (Father) and respondent Kimberly Dawn Carty (Mother).[1] In September 2012, the family court issued an order declaring Father a vexatious litigant and prohibiting him from filing any new litigation in propria persona without first obtaining leave of court (the prefiling order), and ordered him to pay some of Mother’s attorney fees. It appears that Father filed an appeal of this order but failed to pursue it. Father later applied to vacate the prefiling order and remove his name from the Judicial Council’s list of vexatious litigants, and the family court denied his application in April 2013. Father has appealed from this order.

Father contends the vexatious litigant prefiling order was improper because Mother failed to show Father had no reasonable probability of prevailing in the custody case, that in concluding he was a vexatious litigant, the family court improperly took into consideration applications he had made to hold Mother in contempt, and that the family court erred in awarding attorney fees to Mother. We conclude Father’s challenges are untimely

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because they should have been raised in an appeal from the September 2012 prefiling order, rather than from the later order denying his application to vacate that order. However, because there is at least an arguable conflict in the law on the question of whether a prefiling order is appealable, we also explain that even if the merits of ...


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