Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kinney v. Clark

California Court of Appeals, Second District, First Division

May 17, 2017

CHARLES KINNEY, Cross-complainant and Appellant,
v.
MICHELE R. CLARK, Cross-defendant and Respondent.

         APPEAL from an order of the Superior Court of Los Angeles County, No. BC354136 Barbara M. Scheper, Judge. Appeal dismissed; motions for sanctions granted.

          William M. Rubendall; Cyrus Sanai for Cross-complainant and Appellant.

          Marcus, Watanabe & Enowitz, David M. Marcus and Eric Chomsky for Cross-defendant and Respondent.

          CHANEY, J.

         Charles Kinney appeals from a post-judgment award for attorney fees and costs Michele Clark incurred in a prior appeal while attempting to enforce an earlier award for attorney fees and costs against Kinney. Kinney has been challenging Clark's entitlement to fees and costs in this action since 2008, when the trial court first awarded Clark attorney fees and costs under a residential purchase agreement to which she and Kinney were parties and under which Kinney brought this unsuccessful cross-action against Clark. This appeal, like the numerous appeals before, lacks merit. We grant Clark's motion to dismiss the appeal because it is frivolous.

         The Los Angeles Superior Court, this court, and the United States District Court for the Central District of California all have declared Kinney to be a vexatious litigant. Under a prefiling order issued in 2011, Kinney, while self-represented, may not file new litigation (including any appeal or writ) in a California state court without first obtaining leave of the presiding judge. Undeterred, Kinney has retained a series of attorneys to represent him in his continued and unconscionable campaign in the courts against Clark. The prefiling order covering Kinney's in propria persona litigation has been ineffective in constraining his vexatious litigation. Accordingly, on Clark's motion, we impose an expanded prefiling order, requiring Kinney to obtain leave of the presiding judge before filing new litigation (including any appeal or writ) against Clark or her attorney in a court of this state, even when he is represented by counsel. This prefiling order is necessary to protect Clark, her attorneys, and our courts from Kinney's abuse of the judicial process.

         On the court's own motion, we impose monetary sanctions on Kinney for filing a frivolous appeal.

         BACKGROUND

         In 2005, Clark sold a residential property in the Silver Lake neighborhood of Los Angeles (the Fernwood property) to Kinney and Kimberly Kempton. The purchase agreement governing the transaction (the Agreement) included a prevailing party attorney fees clause.

         Kinney's State Court Actions

         In 2006, Kinney and Kempton began filing lawsuits concerning the Fernwood property in the Los Angeles Superior Court. They sued their new neighbors, the City of Los Angeles, Clark, and the brokers who represented her in the transaction. Most of the litigation related to easements and fences. Kinney, an attorney, [1] represented himself and Kempton in the six lawsuits[2] they filed (and ultimately lost) regarding the Fernwood property. (In re Kinney, supra, 201 Cal.App.4th at pp. 955-956.)

         In the action before us, Kempton v. Cooper, BC354136 (the Present Action), Kinney and Kempton filed a cross-action against Clark, alleging unmerchantable title. The trial court sustained Clark's demurrer to the cross-complaint without leave to amend, and the judgment was affirmed on appeal. (Kempton v. Clark (June 30, 2008, B200893) [nonpub. opn.].)

         Following Kinney and Kempton's unsuccessful appeal, Clark moved for attorney fees under the Agreement as the prevailing party in the litigation. On December 15, 2008, the trial court granted her motion and awarded $9, 349 in attorney fees. Kinney and Kempton appealed and we affirmed the fee award. (Kempton v. Clark (Feb. 3, 2010, B213386) [nonpub. opn.].)

         Kinney is Declared a Vexatious Litigant in State Courts

         Meanwhile, Kinney and Kempton were still litigating Kempton v. Clark, BC374938, a fraud action arising from the Fernwood property transaction (the Related Action). In 2008, at the request of Clark and her brokers in the Related Action, the Los Angeles County Superior Court declared Kinney to be a vexatious litigant. (In re Kinney, supra, 201 Cal.App.4th at p. 954; Kempton v. Clark (Sept. 25, 2014, B248713) [nonpub. opn.], p. 2.) Kinney thereafter dismissed himself as a plaintiff without prejudice, but continued to represent Kempton as her attorney in the Related Action. (Kempton v. Clark, supra, B248713, p. 2.)

         Three years later, in a published opinion issued in December 2011, Division Two of this District also declared Kinney to be a vexatious litigant and imposed “a prefiling order prohibiting Kinney from filing any new litigation-either in his own name or in the name of Kimberly Jean Kempton-in the courts of this state without first obtaining leave of the presiding judge.” (In re Kinney, supra, 201 Cal.App.4th at pp. 960-961.) The opinion explained: “In the Court of Appeal alone, Kinney has lost 16 times since 2007: (1) his writ petition was denied in 2007; (2) he has lost 10 appeals in three different divisions of this appellate district and three appeals in the Fourth Appellate District; and (3) two appeals he filed were involuntarily dismissed by the court. All of the proceedings in this appellate district are related to Kinney's ownership of the Fernwood Property.” (Id. at p. 960, fns. omitted.)

         Clark's Bankruptcy

         In July 2010, Clark declared bankruptcy. “The expense of defending against Kinney's claims was a substantial factor leading to Clark's bankruptcy.” (Kempton v. Clark, supra, B248713, p. 3.) In March 2011, the bankruptcy court ordered Clark to appear in state court and defend the Related Action. On Clark's motion, the superior court in the Related Action declared Kempton to be a vexatious litigant because she was “merely acting as Kinney's proxy and he [was] using her as his puppet.” (Id. at p. 4.) After Kempton failed to post a bond as ordered, the superior court dismissed the Related Action. Kinney sought relief from this ruling on behalf of Kempton in the bankruptcy court, federal district court, and the Ninth Circuit Court of Appeals. (Id. at pp. 4-5.) He was unsuccessful in each venue.

         After the superior court dismissed the Related Action, Clark moved for attorney fees against Kinney and Kempton under the Agreement. Kinney opposed the motion, arguing Clark lacked standing to claim attorney fees and costs due to her bankruptcy. (Kempton v. Clark, supra, B248713, p. 5.) On October 18, 2012, after Clark was discharged from bankruptcy, the United States Bankruptcy Court for the Central District of California issued an order stating in pertinent part, “All of [Clark]'s right to recovery [of] attorneys' fees and costs from Kempton and Kinney arising from litigation concerning the Fernwood Property are deemed to have been abandoned by the Trustee.”[3] The order further explained: “Kempton and Kinney are not creditors of this estate. They have twice sued [Clark] in state court, and lost both times. (Kempton and Kinney also lost several related appeals.) As non-creditors, Kempton and Kinney have no interest in the administration of this Estate. Therefore, the Court finds that Kempton and Kinney do not have standing to object to the Motion [to compel abandonment of property].” The bankruptcy court stated that “the amount of fees, if any, ” recoverable under the Agreement and California law “will be adjudicated in the state court.”[4] Back in state court, Clark prevailed on her motion for attorney fees in the Related Action and successfully defended Kinney and Kempton's appeal from the order awarding fees. (Kempton v. Clark, supra, B248713, p. 15.)

         Clark's Enforcement of the 2008 Fee Award and Additional Claims for Attorney Fees Against Kinney

         In 2013, Clark began her efforts to enforce the December 15, 2008 award of attorney fees and costs in the Present Action. Kinney attempted to thwart those efforts by serving a claim of exemption, asserting the funds Clark was seeking belonged to his mother's trust and/or estate, although the funds were in an account that did not bear the name of the trust or estate. Clark filed a motion to determine the claim of exemption. The trial court denied Kinney's claim and allowed a levy upon funds to pay the award. Instead of filing the appeal in his own name and seeking leave of court to proceed under the prefiling order, Kinney filed a notice of appeal from that order as attorney for his mother's trust and estate. We dismissed the appeal based on lack of standing because the trust and estate were not parties to the action in the trial court and did not seek to intervene in the action or vacate the order in the trial court. (Kinney v. Clark (Dec. 31, 2014, B253093) [nonpub. opn.], pp. 2-3.)

         On March 5, 2014, the trial court awarded Clark additional fees for work her attorneys performed in attempting to enforce the December 15, 2008 fee award. Kinney had opposed Clark's motion for fees on his own behalf, and on behalf of Judith Kempton (representative of the Estate of Kimberly Kempton) and his mother's estate. (Kempton v. Cooper (June 4, 2015, B255794) [nonpub. opn.], p. 3.) Attorneys filed a notice of appeal on behalf of Kinney, Judith Kempton and Kinney's mother's estate. We dismissed the appeal as to Judith Kempton and Kinney's mother's estate based on lack of standing. (Id. at p.6.) We affirmed the March 5, 2014 fee award as to Kinney, rejecting his argument (among others) that pending state and federal appeals automatically stayed the action and precluded the trial court from entering a new fee award under the Agreement. (Id. at pp. 8-9.)

         Also in 2014, Clark began her efforts to enforce a July 10, 2012 award of attorney fees and costs the trial court granted for work Clark's attorneys performed in successfully defending Kinney and Kempton's appeal from the December 15, 2008 fee award. Neither Kinney nor Clark appealed from the July 10, 2012 award. Kinney again filed a claim of exemption, contending Clark's enforcement of the July 10, 2012 award was stayed by his pending appeals in the state court (including case No. B253093, the appeal from the denial of his first claim of exemption, discussed above) and federal court (arising out of the bankruptcy proceedings). Clark filed a motion to determine the claim of exemption. Kinney filed a written opposition, representing himself, the Estate of Kimberly Kempton, and his mother's trust and estate. The trial court denied the claim of exemption and allowed a levy upon funds to pay the award. Kinney, the Estate of Kimberly Kempton, and Kinney's mother's trust and estate appealed. An attorney represented Kinney and the other appellants. We dismissed the appeal for lack of standing as to the Estate of Kimberly Kempton and Kinney's mother's trust and estate because these parties could not show they were aggrieved by the order, as the levy was upon Kinney's property. We dismissed the appeal as to Kinney, concluding it lacked merit because the state and federal appeals, which were not related to the July 10, 2012 fee award, did not stay Clark's efforts to enforce that award. (Kinney v. Clark (Sept. 8, 2015, B258399) [nonpub. opn.], pp. 3-5.)

         On May 5, 2015, the trial court awarded Clark $22, 115 in additional attorney fees under the Agreement for work her attorneys performed in successfully defending Kinney's appeal from the denial of his first claim of exemption (appellate case No. B253093, discussed above). This is the award we are reviewing in the present appeal. Attorney William Rubendall filed a notice of appeal from the May 5, 2015 award on behalf of Kinney.

         Kinney is Declared a Vexatious Litigant in Federal Court

         Kinney removed the appeal that is presently before us to the United States District Court for the Central District of California. On February 4, 2016 the district court remanded the matter to this court, issuing an order rejecting Kinney's claims of federal court jurisdiction, imposing sanctions on Kinney in the amount of $6, 000, and inviting Clark and her attorneys to file a motion to have Kinney declared a vexatious litigant in the district court. On May 13, 2016, the United States District Court for the Central District of California declared Kinney to be a vexatious litigant on the motion of Clark and her attorneys. The district court imposed the following prefiling order: “Charles Kinney and any person acting on his behalf must obtain written authorization from a Judge of this Court before initiating a new action, where the pleading asserts claims against Michele R. Clark, David Marcus, or Eric Chomsky [Clark's attorneys] or any of the law firms with which David Marcus or Eric Chomsky are associated.”[5]

         In its May 13, 2016 opinion, the Central District court summarized Kinney's vexatious litigation in the federal courts arising out of the Fernwood property litigation: his three attempts to remove the Related Action to federal court, resulting in the imposition of sanctions against him; his two attempts to remove the Present Action to federal court, again resulting in the imposition of sanctions against him; his counterclaims against Clark and her attorneys in the failed removal actions; the Ninth Circuit Court of Appeals' award of attorney fees against him for attempting to remove the Related Action without a reasonable basis for doing so; his unsuccessful action in the United States District Court for the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.