federal class action lawsuit against california supreme court chief justice cantil-sakauye and...

Arch Cunningham State Bar 2 10625

" 1489 McAllister St. San Francisco, CA 94 115

3 [email protected]

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( 4 1 5) 563- 1828

Attorney for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO/OAKLAND DIVISION

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RONALD PIERCE, KERRY HICKS, � {Jse No. 1 3 1 2 9 5

13 ANDREW KARRES, MICHELE FOTINOS, ) COMPLAINT FOR INJUNCTIVE AND AMIL HIRAMENK, LISA HUNT -NOCERA, ) DECLARATORY RELIEF UNDER 42

14 NICOLE ANN RAY, ARCHIBALD ) U.S.C. §1983; ATTORNEY FEES UNDER CUNNINGHAM, RICHARD RIFKIN, et. al. ) 42 U.S.C. §1988

15 ) )

1 6 Plaintiffs, ) CLASS ACTION )

1 7 V. ) ) DEMAND FOR JURY TRIAL

1 8 ) CALIFORNIA CHIEF JUSTICE CANTIL- ) .

1 9 SAKAUYE, Chair of Judicial Council, and ) MR. STEVEN JAHR, the Administrative )

20 Director of the Administrative Office of the , ) Courts. )

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23 10. Defendants, and DOES 1 through )

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Class Action Complaint for lnlllllcllvc and Declaratory Relief- PAGF. I

_____________________________________________________________________________________________________ Class Action Complaint for Injunctive and Declaratory Relief – PAGE 2

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I. INTRODUCTION

1. Plaintiffs, who are parents in on-going custody disputes, bring this class action against

Chief Justice Cantil-Sakauye and the Judicial Council in the hope of overturning California’s

Vexatious Litigant Statute (VLS) as it applies to family law litigants, particularly parents caught

in protracted custody battles. The Plaintiffs challenge the constitutionality of the VLS as it is

applied in the context of family law custody proceedings. The Plaintiffs assert that the VLS on

its face and as applied infringes on their fundamental custody rights.1

2. The Plaintiffs understand the state’s need to manage its docket, preserve scare judicial

resources, and to curb meritless cases. The Plaintiffs do not doubt that the state has rational and

very urgent reasons to curtail a civil litigant’s access to the judicial process when such a litigant

is filing frivolous or vexatious claims.2 They recognize that state courts have found that civil

litigants’ general right to petition grievances under the First Amendment does not entitle them to

“clog the court system and impair everyone else’s right to seek justice.”3 However, at the same

time, the Plaintiffs know from their own unfortunate experiences as family law litigants, and as

“parents,” that the state’s “unclogging its court docket” rationale for curtailing, restricting, or

denying them access to family law courts is not rationale and certainly not compelling.4

3. Unlike civil litigants, the Plaintiffs here are parents in custody disputes, at least half of

whom had no choice in being dragged into family law court once “dissolution” pleadings were

filed against them. These parents have absolutely no choice in where to resolve their custody

disputes. The family law courts are the “only forum” that the state of California has provided for

these parents to resolve their custody dispute.5 Yet the state Legislature treats civil litigants the

same as family law litigants for purposes of the VLS. While the imposition of the VLS affects

1 Santosky v. Kramer (1982) 455 U.S. 745; Stanley v. Illinois (1972) 405 U.S.645, 651; “A parent’s interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus of personal meaning and responsibility.”) 2 "The constant suer for himself becomes a serious problem to others than the defendant he dogs. By clogging court calendars, he causes real detriment to those who have legitimate controversies to be determined and to the taxpayers who must provide the courts." (Taliaferro v. Hoogs (1965) 237 Cal. App. 2d 73, 74.) 3 Wolfgram v. Wells Fargo Bank (1993) 53 Cal. App. 4th 43, 56. 4 Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1325: “[W]hen an enactment broadly and directly impinges upon the fundamental constitutional rights of a substantial portion of those individuals to whom it applies, it can be upheld only if, considering its general and normal application, its compelling justifications outweigh its impingement upon constitutional rights and cannot be accomplished by less intrusive means.” 5 *See, Boddie v. Connecticut (1971) 401 U.S. 371, 376-377: “Thus, although they assert here due process rights as would-be plaintiffs, we think appellants' plight, because resort to the state courts is the only avenue to dissolution of their marriages, is akin to that of defendants faced with exclusion from the only forum effectively empowered to settle their disputes. Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court.”


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civil litigants right to petition under the First Amendment, family law litigants suffer a double

blow. Not only is their procedural due process right to petition affected, but their substantive due

process rights related to custody are undermined. In the same way, the state’s justification for

imposing the VLS on parents in custody disputes is doubly unjustified.6

4. In extreme but not uncommon situations, some Plaintiffs here have been denied access

to family law courts after their parental rights have been severely curtailed by family law judges.

(*See, Factual Allegations). In one case, a family law judge imposed a 50 year restraining order

on a father. (*See, Factual Allegations, Parent AH). In the restraining order, the father is denied

all contact not only with his ex-spouse, but his three minor children until “midnight” in the year

2062. In another case, a father has been denied access to the family law courts to challenge an

order terminating his parental right, though the father asserts the termination order was obtained

by fraud. (*See, Factual Allegations, Parent C). In short, the imposition of the VLS on these

parents in custody disputes has caused and continues to cause irreparable harm. Some of these

parents have not seen their children of period of up to three years and others only for token visits.

(*See Factual Allegations, Parent H). There is no amount of money that can compensated them

for the years lost as parents. The wisdom of threatening to sever a child in two was demonstrated

by King Solomon. These cases, on the other hand, which severed the parent-child relationship

can be characterized by the absence of wisdom, an abundance of vitriol, and a failure of the

family law courts in the state of California.

II. JURISDICTION

5. This is an action for declaratory and injunctive relief for violation of the Due Process

Clause and Equal Protection Clause of the Fourteenth Amendment as well as violation of the

right to petition grievances under First Amendment. These civil rights violations are brought

under the 42 U.S.C. §1983.

6. Jurisdiction is based on 28 U.S.C §1331, §1332, and §1343 for a violation of 42 U.S.C.

§1983. At all times relevant to this action, Defendants have acted under color of state law. The

Court has Supplemental Jurisdiction over Plaintiffs’ state claim pursuant to 28 U.S.C. §1367 and

California Government Code Section §11135.

6 Elkins v. Sup. Ct. (2007) 41 Cal. 4th 1337, 1353: In other words, court congestion and 'the press of business' will not justify depriving parties of fundamental rights and a full and fair opportunity to present all competent and material evidence relevant to the matter to be adjudicated."; Boddie v. Connecticut (1971) 401 U.S. 371: “We are thus left to evaluate the State's asserted interest in its fee and cost requirements as a mechanism of resource allocation or cost recoupment. Such a justification was offered and rejected in Griffin v. Illinois, 351 U. S. 12 (1956).”


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III. VENUE

7. Venue is proper in Northern District of California pursuant to 28 U.S.C. §1391(b)

because Defendants operate and perform their officials duties therein and thus reside therein for

purposes of venue, and because some of the events and omissions giving rise to the claims herein

occur in counties that are part of the Northern District of California.

IV. INTRADISTRICT ASSIGNMENT

8. Pursuant to Civil Local Rule 3-2(c) this action should be assigned to the San Francisco

or Oakland Division of the Northern District of California, because a substantial part of the

events and omissions giving rise to the claims herein occur in counties in the Northern District of

California.

V. PARTIES

Plaintiffs

Kerry Hicks.

9. Kerry Hicks is a 42 year old mother who has two minor children, 7 and 10 years old.

She lives in Ventura, California. She filed for the dissolution of her marriage to Jerry Hicks on

October 2, 2007. (D323616). Initially, she was granted legal and physical custody. However, on

April 30, 2008, at a hearing on a DVPA action, a visitation action and a vexatious litigant action,

the custody orders were reversed. Ms. Hicks was ordered to take supervised visitation at the Tri-

County Family Services.

10. At a July 10, 2008 hearing, the family law judge7 terminated Ms. Hick’s parental

rights, ruling that she posed a danger to her children. Although Ms. Hicks had never been

screened for substance abuse or psychologically evaluated, the family law judge relied on the

live testimony of the “Executive Director” (Ms. Gloria Gonzales) of the Tri-County Executive

who noted that Ms. Hicks acted “inappropriately” at the four supervised visits by bringing too

many gifts and candy and appearing anxious, nervous, and distracted. (Request for Judicial

Notice, RJN, Exhibit A, pg. 4-26). Ms. Gonzales testified that she believed that Ms. Hick’s

conduct was a “red flag” for substance abuse or mental illness.8 (pg. 10). In her report, she

recommended both the “termination of supervised visits” and that “mom be evaluated and have

random drug testing. (pg. 26). The judge agreed and ordered Ms. Hicks into the “Quick Start”9

program for evaluation as a condition precedent to regaining her custody rights.

7 Commissioner Gay Conroy. 8 Ms. Gonzales testified she had a “degree in criminal justice” from “California Poly San Luis Obispo.” (pg. 5). 9 Quick Start was a program for “criminal” defendants as opposed to parents “suspected” of having substance abuse


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11. At the July 10, 2008 hearing, the judge also concluded that Ms. Hicks was a

“vexatious litigant,” apparently on the basis of her filing several ex parte motions and the

testimony of the opposing counsel who stated that Ms. Hicks was “like a post child for vexatious

litigants.” (pg. 162). At the hearing, Ms. Hicks was self-represented.

12. On July 17, 2008, a week after she was ordered by the judge to be evaluated by the

Quick Start program at the Ventura County Superior Court, Ms. Hick was screened. The results

showed no evidence of drug use in the last 12 months. The results noted that Ms. Hicks was

taking a prescription drug for “anxiety” and conjectured” that her “anxiety” was “possibly

reactive to custody/divorce issues.” (RJN, Exhibit B).

13. Ms. Hicks has not seen her children in over four years and has been denied access to

the family law courts by the “prefiling order” of the VLS.

Ron Pierce

14. Ron Pierce is a father of three children, ages 16, 13, and 8. Before his dissolution

proceeding upended his life, he worked as an engineering assistance for the local government.

While at work he sustained injuries and he filed a workers compensation claim. His claim is

pending and he’s seeking disability. He is homeless but is regularly provided shelter by family

and friend.

15. On January 30, 2008, Ron Pierce filed for dissolution of his marriage with Nadira

Arreola. On March 3, 2008, the family court granted physical custody to Nadira Arreola. At that

time, Mr. Pierce had visitation of two and a half hours on Thursday nights and ten hours on

Saturday. In October of 2008, the court ordered that his visitation was to take place with the

court's contracted local, private non-profit, Family Services Tulare County. On April 23, 2009,

he was stripped of all visitation on the basis of reports made by the office manager for Family

Services. A year later, in April 2010, after a domestic violence charge against Mr. Pierce was

dismissed, the family law court provided him visitation on every 1st, 3rd, and 5th Saturday night.

16. On December 21, 2011, the Court of Appeals for the Fifth Circuit sent Mr. Pierce a

“Notice of Hearing to Determine Vexatious Litigant and Enter a Prefiling Order” and ordered

him to appear in less than four weeks to a hearing on January 21, 2012. (RJN, Exhibit C). The

Court of Appeals initiated the §391.1 motion “on its own” even though Mr. Pierce had no

appeals pending. After argument on January 17, 2012, the Court of Appeals “declared” Mr.

issues.


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Pierce “vexation” in an “unpublished opinion” of January 19, 2012.

Andrew Karres

17. On October 1, 2001, Katina Rapton filed to dissolve her marriage with Andrew

Karres in the Superior Court of Sacramento. (01FL06813). In the ensuing twelve years, Mr.

Karres has been in a protracted custody dispute with Ms. Rapton over their 14 year old daughter.

18. In his November 12, 2012 statement of decision, the family law judge noted that this

custody dispute has “consumed volumes of motions related to custody, child travel, and child

custody.” (RJN, Exhibit G, pg. 7, paragraph 6). He notes that there have been “successive”

attorneys for both side, “successive evaluators submitting numerous reports,” and “various

judicial officers.” In his 20 page decision, the family law judge’s disdain toward Mr. Karres is

palpable, characterizing him as a “martyr of injustice” who “vocalized his antipathy for judicial

orders.”10 (Exhibit G, pg. 16, fn 57). Mr. Karres is not only “repeatedly” denied a “50/50 shared

custody” but sanctioned $2500. He has since appealed. (C072936).

19. On November 14, 2012, the family law judge “vacated” the vexatious litigant hearing

called for under Code of Civil Procedure §391.2. (RJN, Exhibit H). In the transcript, it is noted

that the hearing is vacated. (RJN, Exhibit I). In his November 12, 2012 statement of decision, he

summarily finds that Mr. Karres is “vexatious” under §391(a)(1&3) for his actions in the last “17

months.”

Michele Fotinos

20. Michele Fotinos is a mother age 51 years old. She was married to John Fotinos on

January 24, 1996. He filed for dissolution on May 20, 2003 at the San Mateo Superior Court,

case number F075139. They have two children, a daughter, R. F. now 16, born July 11, 1996,

and a son, A.F. , now 14, born September 8, 1998.

21. At the time of the dissolution, John Fotinos was granted sole physical and joint legal

custody of the children, which has resulted in an ongoing custody dispute since that time and

10 The judge faults Mr. Karres for expressing his view of Judge Peter McBrien’s order but the judge fails to note that Judge McBrien was censured twice by the CJP. (*See, http://www.metnews.com/articles/2010/mcbr010610.htm.) He was “severally censured” for walking out of a family law trial, an act the Court of Appeal described as “unusual” and “perhaps unprecedented.” (In Re Carlsson (2008) 163 Cal. App. 4th 281). Also, the judge fails to mention that the lawyer in that case, Sharon Huddle, is now Mr. Karres’ attorney. Finally, the judge fails to mention that, after being censured, Judge McBrien was elevated to “presiding judge” of the Sacrament Family Law Division. In view of this, it seems his eagerness to dump everything on Mr. Karres is not only suspect but self-serving. By elevating Judge McBrien to presiding judge, one is reminded of that old adage about the “lunatics running the asylum.”


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charges that Mr. Fotinos filed misleading affidavits. (The district attorney has brought perjury

charges against Mr. Fotinos; *See People v. Fotinos, Case No. SC74375).

22. On November 11, 2012, in a probate proceeding involving her mother, Ms. Fotinos as

well as her attorney were declared vexatious litigant. (RJN, Exhibit J). The probate judge ruled

that the “vexatious litigant” order would extend to the family law proceedings and any pleadings

she would file that. The judge also ruled that the “vexatious litigant” statute would apply to Ms.

Fotinos attorney and her attorney would be required to obtain “permission” before filing any new

pleadings in family court.

Adil Hiramenk.

23. Adil Hiramenk is a 52 year old father of three children, a 12 year-old and twins who

are 10 years old. He resides in San Jose, California. On April 5, 2009, , Kamal Hiramenk, the

mother and spouse, filed for the dissolution of the marriage in the Superior Court of Santa Clara

County. (1-09-FL-149682). The parents have been in a custody dispute since then. On October

18, 2010, Adil lost all his custody/visitation rights for a “one year period” when the family law

judge issued a “no contact” and “stay away” order against him and the children, effective until

2062. (RJN, Exhibit L). He did not see his children for a 18 month period and then only has

supervised visitation.

24. On March 22, 2010, the family law judge sent Mr. Hiramenk a pleading entitled

“Notice of Court’s Own Motion and Motion to Subject Adil Hiramenk to a Prefiling Order as a

Vexatious Litigant.” (RJN, Exhibit x). The judge set a hearing for a month later on April 22,

2010. After the hearing, on June 2, 2010, the judge filed an order imposing a “prefiling order” on

Mr. Hiramenk. (RJN, Exhibit x).

Lisa Hunt-Nocera.

25. Lisa Hunt-Nocera and the father of their child, John Marsh, have been in a protracted

custody dispute that started several years after their daughter was born on April 18, 2000. The

parents were never married, they never lived together, and they never accumulated community

property. The paternity case is filed in the Superior Court of Riverside County. (TED 006074).

After years of legal wrangling, Ms. Hunt’s parental rights were terminated on March 13, 2007.

She has not had contact with her daughter since then and has been denied access under the

Vexatious Litigant Statute.

26. At a hearing on March 4, 2010 in the Superior Court of Riverside County, the trial

judge, who had just only been assigned to the case for several weeks, ordered the parents into


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“mediation” on the custody/visitation. The trial judge then declared Ms. Hunt a “vexatious

litigant.” (RJN, Exhibit O). Ms. Hunt had no contact with her daughter for over three years. In

2010 Ms. Hunt received once a month visitation with her daughter and no summer vacation time

and no holidays and till this day still does not have any legal or physical custody, and is routinely

denied“permission” to file.(R JN Exhibit P).

Nicole Ann Ray

27. On January 28, 2008, Darren Hancock filed to dissolve his marriage with Nicole Ann

Ray in the Superior Court of Sacramento County. (08FL00640). On April 24, 2008, the family

law court stripped Ms. Ray of any visitation rights with her three daughters, age 16, 14, and 10.

This order was upheld by Judge Matthew J. Gary on April 24, 2012. She gets supervised visits at

$25 an hour with the non-profit hired by the Superior Court of Sacramento. Although she has

alleged she has complied with court-mandated request for therapy, she has been denied all access

to the family law courts under the VLS to challenge the visitation ruling and regain custody.

28. On April 14, 2011, the attorney for Mr. Hancock filed an OSC to have the indigent

and self-represented Ms. Ray declared a vexatious litigant. (RJN, Exhibit Q). The family law

judge, in his minute order of June 21, 2011 (RJN, Exhibit R), ruled that Ms. Ray was

“vexatious” for renouncing a “stipulation” she signed in which she had agreed to “therapy” as a

condition to restoring visitation. Her request for “permission” to file any challenge to the

stipulation or to have the “vexatious” label lifted have been denied. (RJN, Exhibit S).

Archibald Cunningham

29. Archibald Cunningham lost his 50/50 shared custody agreement in a May 2, 2007

“trial by declaration.” At a February 26, 2010 hearing, he was stripped of all his visitation rights

for renouncing the custody order from that trial as “void.” (RJN, Exhibit T). Since February 26,

2010 until January 22, 2012, Mr. Cunningham and his attorneys were denied all access to the

family law court to request “emergency visitation.” (RJN Exhibit U). On May 25, 2012, the

family law judge denied him a hearing under the new “Case Resolution Program” and stated that

the termination order was “final.” (RJN, Exhibit V).

30.At a February 23, 2009 hearing, the “newly appointed” family law judge conducted a

“vexatious litigant” action brought by a “nonparty” against Mr. Cunningham despite the fact that

he had plead the 5th Amendment in an ongoing contempt case. (RJN, Exhibit W). Mr.

Cunningham was not at that hearing and only learned of it later. The newly-appointed judge

either ignored or did not know of the priority of scheduling given to the “contempt case” but he


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pushed this action before the other actions, including another vexatious litigant action brought by

the attorney for the ex-spouse. The second ‘vexatious litigant” action against Mr. Cunningham,

on the same grounds and by the same parties, was heard February 26, 2010. He was sanctioned

$23,000 at the first hearing and $32,000 at the next. (RJN, Exhibit X).

Richard Rifkin

31. Mr. Rifkin filed for dissolution of his marriage to Kimberly Carty in Marin County

but the case was transferred to San Francisco Superior Court. In a September 14, 2012 “Case

Resolution Order #8,” the family law judge stated that it was “undisputed” that Mr. Rifkin has

“throat cancer,” but the judge dismissed Mr. Rifkin’s contention that the issuance of the CLETS

restraining order prevented him from obtaining a real estate license. The judge questioned his

unemployment, found the source of his income “ambiguous,” and then “imputed” monthly

income of $4330. The judge granted the Ms. Carty “move-away” request to Los Angeles and

order Mr. Rifkin to pay $563 in child support. (RJN, Exhibit Y).

32. On August 23, 2012, Mr. Rifkin appeared with his attorney to challenge Ms. Carty’s

“move-away” request and her “vexatious litigant” motion. At that hearing, Mr. Rifkin was

represented by an attorney.

Defendants

33. Defendant California Judicial Council is a state agency that is responsible for the

improvement of the administration of justice, including surveying judicial activities, making

recommendations to the Governor and Legislature, and adopting rules for court administration,

practice and procedure that are consistent with both statutes and constitutional mandates. 11 The

Judicial Council is also responsible for creating the various forms used in the state courts,

including the MC-700-704 forms used by “vexatious litigants” (and the parents in this case) to

try to lift the “vexatious” branding.12

34. Defendant Chief Justice Cantil-Sakauye is the Director of the Judicial Council, the

state agency responsible for assuring that the law, statutes, and court rules and procedures are

consistent with constitutional guarantees. Defendant Chief Justice Cantil-Sakauye is a public

agency director responsible for a public entity, pursuant to 42 U.S.C. §12131(1)(A) & (B).

Defendant Chief Justice Cantil-Sakauye is sued in her official and administrative capacity.

35. Defendant Judge Steven Jahr, the Administrative Director of the Courts, “is

Administrative Director of the Courts is accountable to the council and the Chief Justice for the

11 *See, Cal. Const. Art 6, section 6(d).


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performance of the Administrative Office of the Courts. The Administrative Director's charge is

“to accomplish the council's goals and priorities.” 13 His various duties, including carrying out

the goals of the Judicial Council, are to interpret policies, allocate financial resources to achieve

goals, to accomplish the goals, and provide reports regarding “progress toward achieving these

goals.” (*See Rule 10.80. Administrative Director of the Courts.) 14 He is sued in his official and

administrative capacity.

VI. STATUTORY AND REGULATORY FRAMEWORK

36. The Vexatious Litigant Statute (VLS), since its enactment in 1963 (Stats. 1963, ch.

1471, § 1, p. 3038), has expanded its reach both by amendments from the California Legislature

and by “broad readings” of the VLS by various appellate courts. As applied in its current form, a

“moving defendant” in a civil case can move the court for an order requiring the “plaintiff” to

furnish security. (§391.1). 15 The statute contemplates a hearing with the right to call witness and

provide evidence. (§391.2). In 1990, the Legislature broadened the scope of the VLS by adding

section 391.7 (Stats. 1990, ch. 621, §§ 1-3), which provided that once a litigant had been found

“vexatious,” the court, “on it own motion or the motion of any party,” is authorized to impose

“prefiling orders” on self-represented vexatious litigants trying to file “new litigation.” (Stats.

1990, ch. 621, § 3, pp. 3072-3073). Before being allowed to file “new litigation,” the vexatious

litigant, acting “in propria persona,” first has to get the “permission” of the court. (§391.7(a)).

The 1990 amendment also expanded the definition of “plaintiffs” under the VLS to include “an

attorney at law acting in propria persona.”

37. In 1998, the first significant judicial expansion of the VLS occurred in the case of

McColm v. Westwood Park Assn. (1998) 62 Cal. App. 4th 1211. In McColm, the Court of

Appeals for the First District expanded the type of litigation that could be counted as “vexatious”

under section 391.1(a-d) to include writs, appeals, and petitions, supra 1219-1220:

"Litigation" for purposes of vexatious litigant requirements encompasses civil trials and special proceedings, but it is broader than that. It includes proceedings initiated in the Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or other criminal matters.

12 *See, Gov. Code 68511. 13 http://www.courts.ca.gov/policyadmin-aoc.htm 14 http://www.courts.ca.gov/cms/rules/index.cfm?title=ten&linkid=rule10_80 15 CCP §391.1: “….The motion must be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the moving defendant.”


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As a result, self-represented vexatious litigants at the trial level as well as in appellate courts

must obtain the “presiding judge’s” permission before being allowed to file.16 Another

significant expansion of the reach of the VLS occurred in the case of Camerado Insurance

Agency, Inc. v. Superior Court (1993) 12 Cal. App. 4th 838. In its broad reading of the VLS, the

Court of Appeals for the Fourth District in Camerado viewed the 1990 amendments to the VLS

as proof of legislative intent to expand the reach of the VLS.17 In abrogating the distinction in the

VLS between represented and self-represented litigants, the appellate court in Camerado ruled

that “representation” did not shield a previously declared litigant from the security requirement

of §391.3. (supra, at 845).

38. The trial courts’ reliance on the VLS to resolve custody disputes was most clearly

encouraged and promoted in a decision by Judge Cardoza. In In re R.H., almost two years after

Chief Justice George’s decision in Elkins v. Sup. Ct., Judge Jane Cardoza cites the legislative

history of the Vexatious Litigant Statute as a basis for using that statute as a “tool” for gagging

parents who try to regain custody of their children, (In re R. H.,170 Cal. App. 678, 700 (2009)):

(Bill History of Assem. Bill 1938, (2000-2001 Reg. Sess.), (enacted as Stats. 2002. ch. 1118.) "Under existing law, parties to family law and probate law proceedings, as well as the court, may already use the vexatious litigant statutes if they so desire. [¶] The intent of this bill, according to the author and the proponents, is to point the way to the vexatious litigant statutes to the parties engaged in these proceedings and to the court, as a tool to discourage repeated motions by parents to regain custody of their children when there are no changed circumstances to justify a different result." (Sen. Com. on Judiciary Analysis of Assem. Bill No. 1938 (2001-2002 Reg. Sess.)

Implicit in her characterization of parent’s attempt to “regain custody” is the belief that such

attempts are frivolous, that the trial judge made the right decision the first time, that custody

cases are static and immutable, and that custody matters don’t involve fundamental rights. (*See,

Santosky v. Kramer (1982) 455 U.S. 745). The use of the VLS in this way is predicated on a

circular argument, that is, that any “change of circumstance” argument is wrong and that access

to the courts to make that argument would be pointless. Therefore, denial of access to a parent

trying to show “changed circumstances” is necessary. In this class action, there are members who

16 The Judicial Council has created MC-701, a form that allows “vexatious litigants” to request permission to file new litigation.(*See, http://www.courts.ca.gov/documents/mc701.pdf). The court of appeals have their own forms. 17 Camerado, supra at 8 43-844 : A review of the 1990 amendments demonstrates the Legislature's intent to broaden the reach of the vexatious litigant statute….Nothing in these amendments suggests a legislative intent to overturn the decision in Muller v. Tanner, supra, 2 Cal.App.3d 438, or otherwise limit the reach of the vexatious litigant statute. The expansive nature of the amendments suggests just the opposite.


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have had their parental rights terminated and then the trial courts have relied on the appellate

court’s “denial of permission” to appeal (the termination order) as proof that a request for

emergency visitation is “final” and that there has been no “change of circumstances.” (*See,

Factual Allegations, Parent H, C, AH.). In short, the VLS is not used as “a tool to discourage

repeated motions by parents to regain custody,” but as a way to lock out the parent who the trial

court perceives as the culpable or “guilty” party in the custody dispute.

39. More than two years before Judge Cardoza edict, Chief Justice George ruled that

“trials by declarations” in family law proceedings violated the “hearsay rules.” (Elkins v. Sup.

Ct. (2007) 41 Cal. 4th 1337, 1356). In Elkins, Jeffrey Elkins was denied the right to testify, cross

examine witness, or present evidence because he has failed to comply with a local rule requiring

declarations as to the nature of the oral testimony. Although Jeffrey Elkins argued that the local

rule as applied was inconsistent with the guarantee of due process, Chief Justice George relied on

the doctrine of “judicial restraint” to avoid answering the “constitutional questions.”18 Instead, he

based his decision on the hearsay violation. In reversing the trial court, Chief Justice George

noted that family law litigants deprived of their “day in court,” as was Jeffrey Elkins, would

express their “shock, outrage, and anger.” (Id., 1367). Chief Justice George also pointed out,

supra, 1345:

Although we are sympathetic to the need of trial courts to process the heavy case load of dissolution matters in a timely manner, a fair and full adjudication on the merits is at least as important in family law trials as in other civil matters, in light of the importance of the issues presented such as the custody and well-being of children and the disposition of a family's entire net worth. Although respondent court evidently sought to improve the administration of justice by adopting and enforcing its rule and order, in doing so it improperly deviated from state law. (emphasis added) In riffing on due process of law, Chief Justice George pointed out the “common theme” of cases

that have invalidated fast-track rules, supra 1353:

A common theme in the appellate decisions invalidating local rules, and one that also appears in the present case, is that a local court has advanced the goals of efficiency and conservation of judicial resources by adopting procedures that deviated from those established by statute, thereby impairing the countervailing interests of litigants as well as the interest of the public in being afforded access to justice, resolution of a controversy on the merits, and a fair proceeding.

18 Elkins, supra 1357: The conclusion we reach also permits us to avoid the difficult question whether the local rule and order violate petitioner's right to due process of law, "[m]indful [as we are] of the prudential rule of judicial restraint that counsels against rendering a decision on constitutional grounds if a statutory basis for resolution exists." ( NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1190.) [8] This rule directs that "if reasonably possible, statutory provisions should be interpreted in a manner that avoids serious constitutional questions." (Id. at p. 1197.)


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Although Chief Justice George points out the need for “access to justice” and mentions that his

decision provides “guidance to trial courts,”19 Judge Jane Cardoza, more than two years later,

would recommend that family law judges use of the VLS as a “tool” to “discourage” access to

those parents trying to “regain custody.” Unfortunately, the members of this class have found

that family law judges are predisposed to follow the recommendations of Judge Cardoza rather

than those of Chief Justice George. or the Elkins Task Force.

40. In Elkins, Chief Justice George referred to statewide surveys showing a loss of “faith

and confidence” in the family law courts. (supra, 1368). That is on-going sentiment shared by

the member of this class. He also pointed out that theses surveys revealed that “80% of the cases

(family law) have at least one unrepresented party by the time of disposition.” (supra, 1368). In

view of the failure of the family law courts to “earn the public trust,” Chief Justice George

directed that a task force be set up by the Judicial Council. (supra, 1369, fn 20):

We recommend to the Judicial Council that it establish a task force, including representatives of the family law bench and bar and the Judicial Council Advisory Committee on Families and the Courts, to study and propose measures to assist trial courts in achieving efficiency and fairness in marital dissolution proceedings and to ensure access to justice for litigants, many of whom are self-represented. Such a task force might wish to consider proposals for adoption of new rules of court establishing statewide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. Proposed rules could be written in a manner easy for laypersons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court. (Emphasis added) As noted above, for Judge Jane Cardoza and family law judges of her ilk, the “special care taken

to accommodate self-represented family law litigants” is to declare them “vexatious litigants”

and curtail or deny them access. Although Judge Cardoza’s ruling was issued two years after the

state Supreme Court’s decision in Elkins, she neither explained how here ruling squared with the

rationale of Elkins or how the use of the VLS in custody disputes “ensured access for litigants,

many of whom are self-represented.”

41. The Elkins Task Force has done nothing to quash the pitched battle between Chief

Justice George’s cry for more access and Judge Cardoza’s yell for less access. Judge Laurie D.

19 Elkins, supra 1346: In addition to providing guidance to the trial courts, our discussion highlights the unusual burdens and restrictions that have been imposed upon family law litigants at the local level in response to increasing case loads and limited judicial resources. We observe that this problem may merit consideration as a statewide


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Zelon, the Chairperson of the Elkins Task Force, after a lengthy and “comprehensive review” of

family law courts, issued her final recommendations, which are cited here:20

Our task force’s recommendations fall under five broad categories: I. Efficient and Effective Procedures to Help Ensure Justice, Fairness, Due Process, and

Safety II. More Effective Child Custody Procedures for a Better Court Experience for Families

and Children III. Ensuring Meaningful Access to Justice for All Litigants IV. Enhancing the Status of, and Respect for, Family Law Litigants and the Family Law

Process Through Judicial Leadership V. Laying the Foundation for Future Innovation

On April 23, 2010, the Judicial Council adopted the recommendations.21 While Judge Zelon’s

final recommendations repeated the lofty goals and gilded promises of Chief Justice George, she

fails to recognize the battle being waged by Judge Cardoza for use of the VLS by “family law

judges” and by Chief Justice George for greater access for “family law litigants.” She does not

address the subject of the Vexatious Litigant Statute and the Task Force offered no opinion as to

whether the VLS has a role in family courts. By the time the final recommendations were being

submitted on April 23, 2010, family law judges throughout California were following the lead of

Judge Cardoza and using the VLS to unclog their crowded family court dockets, to curtail

access, and to end custody disputes by labeling one of the parents “vexatious.” In the final

recommendations, Judge Zelon seemed oblivious to the fact that parents acting “in propria

persona” in custody disputes could becomes targets for “vexatious litigant” actions under §391.1.

While she did allude to “potential difficulties” for self-represented parents, she seems to have

been totally outflanked by the interest Judge Cardoza was promoting. (*See fn 7, pg. 79, Final

Recom):,

Cases in which one side has counsel and the other does not can pose a variety of potential difficulties for the unrepresented litigant, the attorney, and the judicial officer. Representation may be available in more of these cases if courts were to make early needs-based attorney fee awards.

Judge Zelon states that the “Legislature has recognized the difficulties with self-representation in

some cases” and drafted the Sargent Shriver Civil Counsel Act (AB 590 [Feuer]; Stats. 2009, ch.

policy matter, and suggest to the Judicial Council that it establish a task force for that purpose. 20 http://www.courts.ca.gov/documents/20100423itemj.pdf

21 http://www.californiaprobono.org/news/article.310603-Judicial_Council_Accepts_Elkins_Task_Force_Report


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457), which became law and “was funded, commencing October 1, 2011, for several pilot projects

that will provide representation to low-income parties on critical legal issues affecting basic human

needs.” 22 Judge Zelon conceded in her final recommendations that most family law litigants would

remain unrepresented even if the Act were passed.23 In short, the “potential problems” consist of the

very real problem that “unrepresented” parents have been and remain targets of “vexatious litigant”

(for “acting in propria persona”) actions by the opposing party (parent) or by the “presiding judges”

“on their own motions” under §391.7

42. The constitutionality of the VLS has been upheld. The constitutional challenges to the

VLS, however, have always been brought by civil litigants, not family law litigants/parents who

assert that the VLS, on its face or as applied, violated their fundamental custody rights. (Stanley

v. Illinois (1972) 405 U.S. 645). In Shalant v. Girardi, (2010), 183 Cal. App. 545, the Court of

Appeals cautioned against “broad interpretations” of the VLS, supra, 557:

Given the important constitutional concerns that section 391.7 implicates, we conclude that the statute should not be broadly interpreted. Rather, it should be applied strictly according to its terms. (emphasis added).

The Court of Appeals noted that it is “incorrect” to “broadly interpret” the VLS because the

VLS has been upheld on the grounds that they have been “narrowly drawn and thus do not

impermissively invade the right the right of access to the courts.”24 (Shalant, supra, 556-557).

The Supreme Court adopted the “plain reading” (strict construction) approach to the VLS,

cautioned courts to “observe the limits set by statutory scheme” of the VLS, and noted that the

distinction by the Legislature between “represented” and “in propria persona” litigants “was not

absurd.” (Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1176). Further, the Supreme Court lifted a

passage from the appellate decision that scolded courts for acts of judicial legislation, supra at

1177:

As the appellate court below remarked: "We sympathize with the plight of already overburdened trial courts that are forced to contend with the abusive conduct of vexatious 22 *See pg. 1: http://www.courts.ca.gov/documents/AB-590.pdf 23 *See pg. 79: http://www.courts.ca.gov/documents/20100423itemj.pdf 24 Shalant, supra at 556: “Taken as a purely descriptive claim, the statement is probably true--section 391.7 does appear to have been interpreted broadly. (See Forrest, supra, 150 Cal.App.4th at pp. 195-196 & fn. 4 [collecting cases].) But taken as a normative claim--that section 391.7 should be interpreted broadly--the statement is incorrect, because the Court of Appeal has repeatedly upheld the vexatious litigant statutes (including section 391.7) against constitutional challenges on the ground that the statutes are narrowly drawn and thus do not impermissibly invade the right of access to the courts. (See Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 55-57, 60; Luckett v. Panos (2008) 161 Cal.App.4th 77, 81; In re R.H. (2009) 170 Cal.App.4th 678, 702; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 541.) Given the important constitutional concerns that [183 Cal.App.4th 557] section 391.7 implicates, we conclude that the statute should not be broadly interpreted. Rather, it should be applied strictly according to its terms.”


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litigants. But in their efforts to deal with the problem of vexatious litigants, courts must observe the limits set by the applicable statutory scheme. If those limits are too confining, then it is the function of the Legislature, not the courts, to expand them."

Judicial officers are presumed to follow the law, but that is not always evident to the members of

this class. (Evid. Code §§ 601, 604). The case here is rift with family law judge and appellate

judges construe the VLS both broadly and inconsistently with the holding in Shalant v. Girardi.

43. While the Elkins Task Force, under Category IV, seeks to “ensure the status and

respect of family law litigants through judicial leadership,” it’s unclear how a judge’s order that

“declares” a family law litigant “vexatious” in a custody dispute would achieve that goal. In fact,

it’s clear that litigants who’ve been declared “vexatious” are judicially profiled and vilified and

have less access to courts than criminal defendants (murders, rapists, child molesters) and less

visitation rights if they had, in fact, committed “murder.” For instance, in Kobayashi v. Superior

Court (2009) 176 Cal. App. 4th, 535, a decision rendered after Elkins and during the “public

comment” phase of the Elkins Task Force, Judge Sills opined that “much vexatious litigation is

the product of the vexatious litigant’s propensity for dishonesty…” (supra, 541). In Luckett v.

Panos, (2008) 161 Cal. App. 4th 77, Judge Sills suggested that vexatious litigants have a “habit

of suing people as a way of life” and they “watch too much day time television full of judge

shows.” (supra, at 94). He characterized “vexatious litigants” as unemployed deadbeats who sue

“in forma pauperis status” and “use their “typewriters as weapons, filing lawsuits at virtually no

costs to themselves…” (supra, at 94). He conjectured that “vexatious litigants” very likely had

“mental orders,” (supra, 91):

To be sure, of course, many vexatious litigants probably do suffer from some sort of mental disorder, a fact that trial court staff around the state would appear to have first hand knowledge.

Then, apparently not wishing to define the group too narrowly, Judge Sills stated that it was

“perfectly imaginable” that “vexatious litigants” could also be like Professor Moriarty, the

criminal mastermind of Conan Doyle’s fiction, and the arch-enemy of Sherlock Holmes.25 (supra

91-92). While Judge Sills did not decide if Mr. Luckett suffered from a “mental disorder” or was

a “criminal mastermind,” he did rule that he should not be allowed to file any more actions for

“no less than four years” and only after he’s shown “remorse” for being a “vexatious litigant.”

25 Luckett, supra 92: “And it is perfectly imaginable that a very sane, if wrongfully-minded person -- Conan Doyle's fictional Moriarty comes to mind -- who would be perfectly willing to pursue a course of vexatious litigation in the course of some ulterior purpose.”


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(supra, 92, 96).

44. The family law litigants in this class action can take little consolation in the fact that

Mr. Luckett was a “civil litigant” as opposed to a “family law litigant.” The ruling of Judge Sills

in Luckett v. Panos remains binding precedent, applicable to both civil and family law litigants.

In view of the Luckett holding, the class members recognize that their branding as a “vexatious

litigant” works on various levels. First, their right to access can be curtailed or even denied for

“no less than four years.” Second, the “branding” is an implicit psychological evaluation, either

they suffer “mental disorders” or are “criminal masterminds.” Third, it is not the family law

judge that must “earn the publics’ trust” as Chief Justice George stated in Elkins, but the family

law “vexatious” parents who must show “remorse.” The Elkins Task Force recommendation that

family law litigants should be shown “respect” is replaced with a requirement that they must

show “remorse.” In this sense, the “branding” is not merely a judicial judgment or decision but a

psychological evaluation that the members have some untreatable illness. In Luckett, Judge Sills

points out that Mr. Luckett’s supporting declarations show that he has not “mended his ways,”

(supra, 92):

All Luckett's declaration shows is that, instead of devoting his life to something productive, he has spent the last 16 years suing people. That fact only confirms the very trait of character on which the determination of vexatious litigant was first based. None of the class members here are prepared to concede that their fight to “regain custody” and

more time with their children is “something unproductive” or the product of some defective

“trait of character.” Chief Justice George, in Elkins, realized that the problems with the family

law courts are systemic. Instead of trying to “earn the public’s respect,” family law judges find it

a better use of their scare judicial resources to brand parents as “vexatious” as a way of ending

custody disputes and a quick fix to managing their dockets.

45. Finally, after being labeled vexatious, the class members here have found that there

are no clear procedures, no written standards, and no practical way to erase the branding. While

the Judicial Council has recently added §391.8 to the VLS26, this seems more a response to the

“constitutional concern” first raised by John E. Wolfgram in Wolfgram v. Wells Fargo Bank

26 Section 391.8 (a). A vexatious litigant subject to a prefiling order under Section 391.7 may file an application to vacate the prefiling order and remove his or her name from the Judicial Council's list of vexatious litigants subject to prefiling orders. The application shall be filed in the court that entered the prefiling order, either in the action in which the prefiling order was entered or in conjunction with a request to the presiding justice or presiding judge to file new litigation under Section 391.7. The application shall be made before the justice or judge who entered the order, if that justice or judge is available. If that justice or judge who entered the order is not available, the application shall be made before the presiding justice or presiding judge, or his or her designee.


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(1993) 53 Cal. App. 4th 43 that the “vexatious litigant” declaration functioned as a “permanent

branding.” It also raise a question if a party that files a §391.8 request is entitled to an evidentiary

hearing. In this way, the Court of Appeals for the Second Appellate District was “troubled” by

this “permanent” branding issue. (PBA, LLC v. KPOD, Ltd. (2003) 112 Cal. App. 4th 965)). The

PBA court stated, supra 976:

While there is much to recommend this reasoning, the conclusion section 391.7 is to be a permanent, irrevocable restriction is troubling. Although section 391.7 does not absolutely exclude the "pro per" litigant from the courts, we believe fundamental fairness requires the "vexatious litigant" brand be erasable in appropriate circumstances. The PBC court ruled that a “prefiling order” under CCP §391.7 is not an “absolute exclusion.”

This ruling was predicated upon the language in Wolfgram, which stated that when a vexatious

litigant “knocks on the courtroom door with a colorable claim, he may enter.”27 In Luckett,

Judge Sills stated that the branding was tantamount to an injunction under Code of Civil

Procedures §553, which could be lifted with a showing of “changed circumstances.” (supra, 93).

In Luckett, as noted above, Judge Sills invented factors, such as his “remorse” factor, which

courts could consider before erasing the vexatious litigant branding. While the VLS does not

spell out the “appropriate circumstances” for erasure, the class members here are faced with the

judge-created “factors” of “remorse” and “no less than four year” banishment from filing. Judge

Sills’ factors, while harsh and severe even for civil litigants, are nothing short of tyrannical and

inquisitional in the context of custody cases.

46. The battle line here is between family law judges who want to unclog their dockets of

“difficult cases” and parents who expect and deserve a well-informed judiciary who know the

law, the Family Code, Title Five Rules, and the facts of a particular case. The class members are

not treated with “respect.” Instead, the family law judges and lawyers for ex-spouses have taken

up the club of the VLS and used it to beat down the self-represented and often indigent parent. In

essence, any attempt to “resolve” the custody dispute has been scuttled. In this rigged game, the

judges make up the rules, have all the power, exercise it with impunity and “absolute immunity,”

27 Plaintiffs notes, having been repeatedly denied the right to file anything, that the issue of what is a “colorable” claim as applied in custody case is unconstitutionally vague because there is no clear standard (Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972) quoted in Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498 (1982). Plaintiffs also notes that the presiding judges have applied the prefiling order in such a way as to deny them and their attorneys access to the family law courts in violation of the Due Process Clause of the 14th Amendment and his 1st Amendment right to petition (*See, Boddie v. Connecticut 401 U.S. 371 (1971). impinges on fundamental custody rights (Stanley v. Illinois)


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and the class members are driven into the ground both financially and psychologically.

47. It’s this disparity in power and treatment between family law litigants and judges who

make “vexatious litigant rulings” that further undermines “confidence and trust” in the judiciary.

For instance, Judge McBride, then the Presiding Judge of the San Francisco Superior Court, tried

to deny one class member the right to appeal a “vexatious litigant” order issued by a family law

judge. (*See, RJN, Exhibit Z). Although the Administrative Presiding Judge of the Court of

Appeals for the First District would overrule Judge McBride (*See, RJN, Exhibit ZZ), the entire

twist of events undermined the class member’s “trust” in the judicial system. It was not just the

judges’ confusion over the right of litigants to “appeal” a vexatious litigant order. It was about

the appearance of disparate and special treatment and an imbalance in the equation of power. In

that sense, Presiding Judge McBride was not publicly censored by the Commission on Judicial

Performance with respect to three misdemeanor domestic violence and battery charges (against

his spouse) and one witness intimidation charge (against his ex-spouse) that were brought against

him.28 While the CJP would eventually censor him for disrespecting public defenders and

altering dates to circumvent a criminal defendant’s right to a “speedy trial,”29 he would remain

seated on the bench, trying to deny a father the right to appeal a “vexatious litigant” order. In the

patois of the proletariat, Judge McBride would be referred to as a “wife-beater” and a “crooked

judge.” (One can only guess at how Judge Sills might describe one of his “fellow” judges.).

Oddly, the judges of the San Francisco Superior Court elected Judge McBride, the “wife-beater,”

to the rank of Presiding Judge, to run the whole show at the San Francisco Superior Court. 30 The

irony is that these judges will overlook or excuse Judge McBride’s indiscretions (felony charges

related to domestic battery and abuse) but they do not hesitate to brand parents as “vexatious” for

trying to regain custody (and then deny them access after stripping them of custody rights). The

tragedy is that the family law litigants have to bear the entire burden of this disparate treatment.

VII. FACTUAL ALLEGATIONS

Facts Related to Kerry Hicks, Parent H.

48. At the July 10th, 2008 hearing on visitation and a vexatious litigant motion, the family

law judge adopted not only the recommendation of Ms. Gonzales (the manager of the non-profit

28 http://www.sfweekly.com/1999-05-12/calendar/cothran/full/

29 http://www.cjp.ca.gov/res/docs/Public_Admon/McBride_DO_11-18-08.pdf; http://www.abajournal.com/news/article/san_francisco_judge_reprimanded_for_putdowns_pd_dismissals 30 http://www.sanfranciscosentinel.com/?p=14185


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in charge of overseeing supervised visits) that Ms. Hicks not have any further supervised visits

but Ms. Gonzales opinion that Ms. Hick’s alleged “inappropriate behavior” was a “red flag” for

substance abuse or mental illness, (RJN, Exhibit A, pg. 172):

THE COURT: The last seven minutes you talked and you looked down the whole time. You never looked up and made eye contact except one moment at the end. THE WITNESS: I’m trying to concentrate so fiercely. THE COURT: The problem is there’s something going on, and it may be something going on that can be treated with medication, it can be something else. I want to see you with your children. This is the most painful case I’ve ever had in here, but I don’t know what’s happening here. THE WITNESS: I can tell you if you give me time. THE COURT: No. Somebody else is going to tell me. THE WITNESS: I’ve got evidence. THE COURT: This is called the Quick Start program, and I’m ordering you to go to the Quick Start program for an assessment. …. THE COURT: They’re going to be assessing whether or not there is a problem with alcohol, with drugs, with some sort of mental health problem. I want to find out what’s going on because I don’t want to see you in such pain, but right now I can’t let you have this visitation with your kids because I’m concerned. Ms. Hicks has not seen her children since then even though a week later her “results” from the

Quick Start showed no signs of substance abuse and no mental illness. (RJN, Exhibit B). She’s

been locked out of the court by virtue of the VLS.

49. Although the family law judge presumed that Ms. Hicks was so “impaired” and such

a potential threat that she couldn’t see her children, he let her proceed “in propria persona” with

respect to the “vexatious litigant” motion brought against her. In that regard, the attorney for her

ex-spouse noted, in a fit of condescension, that Ms. Hicks did not jump through her hoops and

respond to her demands for a response to the charge of being “vexatious, (Exhibit A, pg. 164):

MS. KARCZAG: She was supposed to file a response by July 8th. This is what happened. The vexatious litigant that I bought stated to Miss Hicks I’m—my intention to grant this unless you can give me a reason why I shouldn’t and I want a response filed by July 8th. There’s no response and instead of written response she noticed more ex-partes. I think she’s like almost a poster child for vexatious litigants. There’s so many ex-partes and motions, meritless frankly your Honor. I’m exhausted from all this.

Although an attorney’s statements are not “evidence” because they are not made under oath,31

31 Evidence is "testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." (Evid. Code, § 140.) "Testimony" refers to statements made under oath.


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the family law judge apparently considered this evidence of “vexatious litigation.” Further, the

trial court did not even address the second prong of a §391.1 motion, that is, the “reasonable

likelihood of prevailing in the litigation.” Apparently, the family law judge, having terminated

Ms. Hicks’ rights as a parent, unilaterally mooted any issue of “prevailing” in a custody dispute.

Facts Related to Ron Pierce, Parent P

50. On December 21, 2011, the California Court of Appeals for the Fifth District send

Mr. Pierce a pleading entitled “Notice of Hearing To Determine Vexatious Litigant and Enter

Prefiling Order.” (RJN, Exhibit C). At that time, there was no “pending” appeal. The appellate

noted that Mr. Pierce had, in the “preceding seven-year period,” prosecuted “in propria persona”

six appeals or writs (five of which were related to his family law case) which had been “finally

determined adversely” to him under §391(b)(1)).

51. In their “opinion” (though there was no notice of appeal, no appeal record, no brief,

no oral argument, not even an opposing party), the appellate court, in explaining why it had

morphed into a trial court, stated, (Exhibit D., pg 3):

“There need not be pending litigation for a court to move to declare an individual a vexatious litigant and subject him to a prefiling order.”

The first obvious problem with this “view” of the VLS is that it contradicts that “plain language”

of section 391.132, which states “.[I]n any litigation pending in any court…”. It also contradicts

the plain language reading” doctrine announced by the Supreme Court in Shalant v. Girardi,

(2011) 51 Cal. 4th 1164. The second problem with the appellate court’s position is that it renders

the second prong of the §391.1 motion meaningless. Section 391.1 requires a showing that the

“plaintiff” is a vexatious litigant and that there is no “reasonable probability he will prevail in

the litigation against the moving defendant.” Clearly, if there is no “pending litigation,” then

neither Mr. Pierce nor anyone else can prevail. Third, Mr. Pierce is not the “plaintiff” nor is the

appellate court the “moving defendant.” Finally, section 391.7 allows a presiding judge “on its

(People v. Belton (1979) 23 Cal. 3d 516, 524 [153 Cal.Rptr. 195, 591 P.2d 485].) Thus, attorneys' statements do not constitute evidence. (Van de Kamp v. Bank of America (1988) 204 Cal. App. 3d 819, 843 [251 Cal.Rptr. 530].). Again, he was not explained or offered any proof that the TICA is valid other than his bold allegations. 32 391.1. In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant.


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own motion” to enter a “prefiling order” against a “vexatious litigant.” Clearly, the “condition

precedent” to entering a prefiling order is a finding, presumably by the trial court, that a litigant

has been found to be a “vexatious litigant.” In Mr. Pierce’s case, the appellate court presumes to

enter a “prefiling order” before Mr. Pierce was found to be “vexatious” by a trial court.

52. On February 21, 2013, Mr. Pierce filed a MC-703 form asking that the “vexatious”

litigation “opinion” be lifted on the grounds that there was no legal basis for an “impromptu

§391.1 motion. (Exhibit E). On February 25, 2013, Judge Kane “denied” the motion without

providing Mr. Pierce a hearing or without stating a reason for the denial. (Exhibit F). This raises

the “perpetual branding” concern raised by Jeffrey Wolfe over 20 years ago.

Facts related to Andrew Karres, Parent K.

53. In its November 12, 2012 statement of decision, the family law judge in the Superior

Court of Sacramento County denied Mr. Karres a 50/50 shared custody, ordered his attorney not

to mention the sexual orientation of the mother33, and designated him a “vexatious litigant.”

54. On November 14, 2012, Sharon Huddle, the attorney for Mr. Karres, was present

when the family law judge “vacated” the scheduled hearing on the “vexatious litigant” motion.

Although section 391.2 provides that a litigant is entitled to a “hearing” with the right to provide

“any” evidence, both “oral and by affidavit,” the family law judge denied any hearing. The

attorney for Mr. Karres has appealed the “vexatious litigant” ruling and has challenged the

family law judge’s “gag-order” on referring to the mother’s “sexual orientation.” Mr. Karres’

attorney, Ms. Huddle explains, in pleadings on appeal, why the sexual orientation is relevant and

how the “gag-order” infringes due process. (RJN, Exhibit II).34

Facts related to Michele Fotinos/Parent F.

55. At a probate hearing on November 9, 2012 involving her mother’s estate35, Michele

Fotinos’ attorney in her family law case substituted into the probate case after a “vexatious

litigant” motion was filed. The court-appointed probate attorney sought to have a “prefling

order” imposed against Ms. Fotinos as well as her attorney, (RJN, Exhibit J, pg. 3, lines 7-12).

At the hearing, the judge found that Ms. Fotinos was “vexatious” but did not consider the issue

of whether there was a “reasonable likelihood of prevailing” in the litigation because the case

33 *See Exhibit x in which Mr. Karres’ attorney explains why this matter is relevant to the arguments that she is making in the custody case and how it related to statutory rights. 34 Implicit in the “gag-order” is the judge’s own bias that if the husband refers to his ex-wife’s sexuality, he is “misogynistic” or discriminating on the basis of “sexual orientation.” However, Ms. Huddle, the attorney and a woman, is raising this issue. The judge just issues the “gag-order” without explaining the difficult if not absurd task of how a female attorney might be “misogynistic” or “sexually discriminating” by raising the orientation issue. 35 The Conversatorship of Ester Boyles, San Mateo County Case No. 121437.


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was essentially over at that point. It seems the trial judge count Ms. Fotinos “five more”

unsuccessful motions” in the probate case as evidence of “vexatiousness” as well as proof that

she was not likely to “prevail.” At the hearing, the judge stated that the §391.7 prefiling order

would also apply to Ms. Fotinos’ attorney and would extend to any motions the attorney filed on

behalf of Ms. Fotinos’s family law case.

56. In the November 15, 2012 notice of order, the judge did not sanction Ms. Fotinos’

attorney under Code of Civil Procedure §128.7 but imposed the “vexatious litigant” order against

the attorney, ruling that (RJN, Exhibit K, pg. 6, line 11-19):

Attorney Patricia Barry offered evidence at the hearing to the effect that she had been guiding and facilitating the in propria persona flings by Ms. Michele Fontinos. This court finds that Attorney Patricia Barry has acted as a mere conduit for unmeritorious filings and therefore that the above order prohibiting Ms. Michele Fontinos from filing any petition, application, or motion other than a discovery option, for any order in propria persona without first obtaining leave of the presiding judge shall also prohibit Patricia Barry from filing any petition, application, or motion other than a discovery motion, for any order on behalf of Ms. Michele Fontinos without first obtaining leave of the presiding judge. (See In re Shieh (1937) 17 Cal. App. 4th 1154, 1167).

Apparently, Ms. Barry’s representation of Ms. Fontinos in her family law case will require Ms.

Barry to file out MC-701 “vexatious litigant” forms and get “permission” from the presiding

judge before being allowed to file. This is inconsistent with the Supreme Court’s ruling in

Shalant v. Girardi and contradicts Weissman v. Quail Lodge, Inc. (1999 9th Cir. Cal.) 179 F3d

1194, which stated that the VLS “by its own terms” does not apply to attorneys.36

Facts Related to Adil Hiramanek/Parent AH.

57. In an “Order RE Petitioner’s Request to Renew Restraining Order, the family law

judge in the Santa Clara Superior Court extended a one year restraining order to a “permanent”

36 *See, Weissman v. Quail Lodge, Inc. (1999, 9th Cir Cal) 179 F3d 1194. The court explained that the reason that an attorney could not be declared a “vexatious litigant” was “because the vexatious litigant doctrine was never intended to control attorney conduct and because an attorney appearing on behalf of a client could not by definition be sanctioned as a "vexatious litigant," as he was acting as an attorney not a litigant.” (supra, at 1999; emphasis added). The court went on to explain: “Insofar as our research has uncovered, no court in this circuit has ever imposed a vexatious litigant order on an attorney. We do not believe that the vexatious litigant doctrine was ever intended to control attorney conduct and we do not propose to approve its application in this case as a means of controlling attorney conduct. For example, the California vexatious litigant statute limits the definition of a "vexatious litigant" to one who acts "in propria persona." Cal. Civ. Proc. Code § 391.7. Similarly, the only district court in this circuit to have adopted a vexatious litigant rule provides that the court may "proceed by reference to the Vexatious Litigants statute of the State of California, Cal. Code Civ. Proc. §§ 391 -391.7." Cent. Dist. of Calif. Local R. 27A.4. We therefore conclude that an attorney appearing on behalf of a client cannot be sanctioned as a vexatious litigant; by definition, he or she is acting as an attorney and not as a litigant.


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restraining order of 50 years because the judge found that Mr. Hiramanek violated the restraining

order when he came with 100 feet of his wife at the court house (at a mandatory settlement

conference) and, at a deposition, allegedly sat near his ex-spouse and “stared at her with ‘a

hateful stare.’” (RJN, Exhibit M, pg. pg. line 13). The family law judge stated “[F]or law

enforcement purposes, the restraining order shall be for 50 years, and shall expire at midnight

on August 24, 2062. The children shall be listed as protected persons.” (pg. 7, line 7-8). Hence,

Mr. Hiramanek’s parental rights are not just simply terminated, but any attempt to speak with his

progeny in the next 50 years becomes a criminal act. His request for need-based fees under

Family Code §2032, which would have provided him “representation” and shielded him from the

VLS, were denied. (RJN, Exhibit NN).

58. On March 22, 2010, the family law judge filed a motion entitled “Notice of Court’s

Own Motion and Motion to Subject Respondent Adhil Hiramanek to a Prefiling Order as a

Vexatious Litigant.” (RJN, Exhibit N). In this motion, the family law judge lists Mr.

Hiramanek’s various “unmeritorious” motions and notes that the two motions to disqualify him

for cause were denied.37 This motion was filed about 15 months before the state Supreme

Court’s ruling in Shalant v. Girardi that trial courts must “observe the statutory limits” of the

VLS and avoid “broad readings” of the statute. (supra, at 1179). Nevertheless, the express

language in §391.7 provides that “prefiling orders” are conditioned upon both a previous finding

of being “vexatious” and the filing of “new litigation” (in propria persona). Here, the family law

judge ignores these express “condition precedents” and purports to “move on its own motion,”

not for a “prefiling order” but for a §391.1 motion (and then a prefiling order). Of course, at the

April 22, 2010 hearing, the family law judge finds that Mr. Hiramanek has filed “unmeritorious

motions” under §391(b)(3). The judge, not surprisingly, does not consider whether there is a

“reasonable likelihood” of his prevailing in his custody dispute as required by §391.1.

Facts Related to Lisa Hunt-Nocero/Parent N.

59. While all her parental rights were terminated by the Superior Court of Riverside

County, Ms. Hunt-Nocero filed MC-701 forms (Request and Order to File New Litigation By

Vexatious Litigation) requesting a hearing on the issue of whether it is “unconstitutional for a

family court to deny any parent-child relationship.” (RNJ, Exhibit P). Her September 14, 2010

request for a hearing on the issue of the constitutionality of the termination of all her parental

37 *Note: The fact that the family law judge initiated this “vexatious litigant” motion “on its own motion” shortly after Mr. Miramanek’s motion to disqualify for cause were denied certainly speaks to retaliation. In view of the 50 year restraining order, it would seem there is a compelling inference not just for bias but for retaliation.


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rights was “denied” without explanation. The presiding judge simply exercised his discretion,

picked up a pen, and placed his x in the “Denied” box. This present case raises the companion

question of whether the VLS can be applied to deny all access to a family law court to challenge

a de facto termination order.

Facts Related to Nicole Ann Ray/Parent R.

60. Ms. Ray has been declared “vexatious” by the family law judge of the Sacramento

Superior Court but she has not been added to the official list maintained by Administrative

Office of the Courts. She has sought to get the “vexatious label” lifted as an “injunction” under

CCP §553 and to serve the “ends of justice.” As an impoverished mother, she can only afford to

visit her three daughter once a month and pay the “non-profit” firm the $25 that demand for

providing the “supervised visits” for the County of Sacramento. She splits the hour into three

segments because the “nonprofit” firm that oversees supervised visitation only allows a parent to

visit with one child at a time.

Facts Related to Archibald Cunningham/Parent C.

61. Since his parental rights were terminated on February 26, 2010 by the opposing

counsel’s fraud, the presiding judges of the San Francisco Superior Court has denied every

request (MC-701) he filed for “emergency visitation.” (RJN, Exhibit U). His attorney was forced

to file MC-701 forms, which were denied by the presiding judges. (Exhibit U). His request to

file a motion to lift the vexatious label under CCP §553 was denied by use of the MC-701 form.

(*See, Exhibit U). His requests to be relieved of the burden of self-representation have been

denied no fewer than “eight times.” (RJN, Exhibit VV). Further, the judge’s first “vexatious

litigant order” of March 5, 2009 was used as the basis to deny him “permission” by the appellate

court to deny his appeal of the second vexatious litigant order from the February 26, 2010

hearing (as well as the termination order and a DVPA order). Finally, even though the Court of

Appeals overturned the $22,167 fee sanction from the first vexatious litigant order, the Court of

Appeals refused to hear his appeal and whether principles of res judicata precluded the $32,193

fee sanction in the second appeal.

Facts Related to Richard Rifkin, Parent R.

62. On September 14, 2012, the family law judge for the San Francisco Superior Court

ruled that Mr. Rifkin was “vexatious” under section 391(b)(3) for filing “unmeritorious” motions

or pleadings. (RJN, Exhibit Y, pg. 3, line 7). The family law judge lists the many motions, some


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for change in custody/visitation and many for contempt,38 which Mr. Rifkin filed but which were

“denied.” (pg. pg 4-5). In declaring Mr. Rifkin “vexatious,” the family law judge relied on Golin

v. Allenby (2010) 190 Cal. App. 4th 616 for the proposition that a “litigation tactic” designed to

“grind down” an opponent shows an “improper motive” that amounts to “vexatious litigation.”39

(supra, 639). The judge, however, does not explain how this rationale for this civil case applied

to a protracted custody disputes involving a “move-away” request.

VIII. CLASS DEFINITION AND ALLEGATIONS

63. Pursuant to Rule 23(a) and Rule (b)(1)(A)(B) of the Federal Rules of Civil Procedure,

the Plaintiffs Pierce, Rifkin, , Fotinos, Hicks, Hunt-Nocero, Hiramanek, Cunningham and Karres

bring this action on behalf of themselves and all other persons similarly situated. Plaintiffs bring

this action on behalf of a class consisting of “parents engaged in custody disputes in the family

law courts (and on appeal with appellate courts) who have been declared ‘vexatious’ under the

California Vexatious Litigant Statute and whose access to state courts, both trial courts and

appellate courts, has been curtailed, restricted, or denied.”

64. Numerosity: The Plaintiff class is so numerous and so uncertain that joinder of all its

members would be impracticable. The Administrative Office of the Court maintains a list of

parties that have been declared “vexatious:”40

Duties The Judicial Council maintains a record of vexatious litigants subject to such prefiling orders and annually disseminates a list of such persons to the court clerks. (Code Civ. Proc., § 391.7(f).)

However, the Administrative Office of the Court lumps all vexatious litigants together, whether

they’re civil or family law litigants.41 Upon information and belief there could be hundreds of

parents in the class. Joinder of the class is impracticable because the list is not a complete list as

38 Under McColm v. Westwood Park Assn (1998) 62 Cal. App. 4th 1211, the Court of Appeals noted that the VLS was not to apply to “criminal matters” such as the criminal contempt case here where Mr. Rifkin’s ex-spouse was appointed an attorney in the criminal contempt case. 39 Golin, supra at 639: But the court's comments at the hearing suggest that it reached the conclusion that the Golins were vexatious not because of individual unmeritorious filings but because of their litigation tactics--their regular practice of revisiting issues and the volume of their supplemental and amended filings that cumulatively evidenced a "level of vexatiousness." According to the trial court, together these spoke to an improper motive to "grind down the other side" or to keep them from 'being able to move forward' in the litigation. This goes to the third, disjunctive prong of section 391, subdivision (b)(3)--engaging in tactics that are frivolous or solely intended to cause unnecessary delay. 40 http://www.courts.ca.gov/documents/Vexatious_Litigants.pdf 41 http://www.courts.ca.gov/documents/vexlit.pdf


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evinced by the fact that Plaintiff (Ms. Ray) who was declared “vexatious” but whose name does

not appear on the list. (*See, fn. 40). Joinder of all parents in the class is impracticable because

there are tens of thousands of spouses in family law dissolution proceedings, but not all of these

cases involve custody disputes. While all of these parents are “potential” class member, not all of

the parents have yet been “declared “vexatious.” Further, joinder of the class is impracticable not

only because of the size and uncertainty of the class, but because class members lack the

financial means to maintain individual actions and are geographically disbursed throughout the

sate.

65. Commonality. There are common questions of law and fact predominate over specific

issues that could be raised by individual vexatious litigant parents. One common question among

all class members is whether the Vexatious Litigant Statute as applied to parents acting “in

propria persona” in custody cases creates a “suspect class” under the Equal Protection Clause of

the 14th Amendment. Another common question of law is whether the restrictions on parents to

access to family law courts, the only forum provided by the state for “the adjustment of a

fundamental relationship,”42 is a violation of their 1st Amendment right to petition as well as

their right to due process of law. There is also the question of law whether the imposition of the

VLS against parents is an improper and “permanent” branding. Further, there is the issue of

whether the procedures of the VLS are constitutionally vague or overbroad.

IX. LEGAL CLAIMS FIRST CLAIM FOR RELIEF

Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights- The Vexatious Litigant Statutes As Applied Violates the Equal Protection Clause of the 14th Amendment

66. Plaintiffs reallege and incorporate herein by reference each and every allegation and

paragraph set forth previously.

67. Plaintiffs, parents in custody disputes in the family law courts throughout the state of

California, are subject as self-represented litigants (and even when represented by attorneys) to

prefiling orders and “security” under §391.7 of the Vexatious Litigant Statue as “an exclusive

precondition to the adjustment of a fundamental human relationship,”43 that is, their custody and

visitation rights.

68. Defendants know or should know that parental custody rights are fundament rights

which the state cannot interfere with without providing due process of law and a compelling

42 Boddie, supra, at 383.


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reasons for doing so. (*See, Santosky v. Kramer (1982) 455, 753-754: “The fundamental liberty

interest of natural parents in the care, custody, and management of their child does not

evaporate simply because they have not been model parents or have lost temporary custody of

their child to the State. Even when blood relationships are strained, parents retain a vital

interest in preventing the irretrievable destruction of their family life. If anything, persons faced

with forced dissolution of their parental rights have a more critical need for procedural

protections than do those resisting state intervention into ongoing family affairs. When the State

moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair

procedures.”).

69. Defendants know or should know that family law courts are “entirely stated-created”

matters and are the “only forum”” the state has provided family law litigants, and class members

here, which is “effectively empowered to settle” their custody disputes. (Boddie, supra, at 393,

376).

70. Defendants know or should know as Chief Justice George noted in Elkins v. Sup. Ct.,

that 80% of parents in family law proceedings are self-represented. (Elkins, supra, at 1368).

They know or should know that the Elkins Task Force stated in its Final Recommendations that

“[F]ar too many Californians are unable to afford counsel.” and that the state “needs to take

steps to provide litigants with the appropriate levels of assistance they need to proceed with their

cases.” (*See Final Recommendations, pg. 59). Further, Defendants know or should know that

the Elkins Task Force, in its initial recommendations, found that family law litigants act “in

propria persona” because “they have no choice”44 in view of their lack of resources. Finally,

Defendants know or should know that the Elkins Task Force recommended that the Judicial

Council provide statewide rules regarding award of attorney fees for family law litigants. (*See,

http://www.courts.ca.gov/documents/20100423itemj.pdf, pg 60-69.)

43 Boddie v. Connecticut, supra at 383. 44 http://www.courtinfo.ca.gov/jc/tflists/documents/draft-finalrec.pdf. “Given the complexity of family law, why do people represent themselves? All too often the answer is that they have no choice. There is no right to appointed counsel in family law matters. Given tremendous funding limitations, legal services agencies in California are able to serve relatively few persons who have family law issues. Generally, because of funding restrictions, only victims of domestic violence can be provided representation—and far too few of those victims can be served. Legal services agencies serve low-income people. But those with low income are not the only people who are finding themselves in court without lawyers. The average family law attorney in California charges more than $300 per hour and requires a retainer of approximately $5,000. Families increasingly are finding themselves with no paycheck, a diminished amount of equity in their homes, and reduced savings, leaving them unable to afford attorneys. Even people who start out with attorneys at the beginning of their cases often run out of money and become self-represented before their cases are over.”


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The Elkins Family Law Task Force recommends: 1. Attorney fees a. Statewide rules and forms. The Judicial Council should adopt statewide rules regarding the information that needs to be submitted to the court to obtain an award of attorney fees. A form setting out these requirements should be considered. Consistency in these requirements would allow attorneys and self-represented litigants seeking attorneys to provide the information needed by the court for an award of attorney fees.

Defendants know that they have created new forms as of January 1, 2013 that are designed to

help “erase” a “vexatious litigant” ruling (MC-703, 704) but they have provided no forms or

published any rules for parents to seek need-based fees as they are required to do under Gov.

Code §68511. 45

71. The Defendants know or should know that the courts may, on their “own motion”

(under §391.7) as well as the opposing attorney for the other parent may “move” the family law

court to have self-represented family law litigant parents declared “vexatious” under §391.1 of

the VLS. (These parents may have prefiling orders imposed against them as well as security

before they may be allowed to file any “new litigation” under §391.7). The Defendants know or

should know that all the “declared vexatious” litigant class members here have had their access

to family law courts restricted, curtailed, and, in some situations, have been denied all access to

the family law court for years after their custody rights have been terminated. (*See Fact

Allegations for Parent H, Parent N, Parent C, Parent AD).

Indigent/Impoverished Parents v. Affluent Parents.

72. The Defendants know or should know that the VLS, on its face and as applied to

family law litigants, creates several suspect classes. The suspect class consists of those parents

who don’t have the money to hire an attorney to fight their custody battle in the “state-created”

family law courts. This class of unrepresented or indigent unrepresented parents become targets

for the VLS because they are forced to file “in propria persona.” Once branded vexatious, this

suspect class of indigent parents is denied immediate and full access. They are denied the right to

a full-evidentiary hearing under Family Code §217 on their “orders to show cause.” They are

also denied the immediate right to call witnesses under Title Five Rule 5.113 and denied the right

45 Gov. Code section 68511: The Judicial Council may prescribe by rule the form and content of forms used in the courts of this state. When any such form has been so prescribed by the Judicial Council, no court may use a different form which has as its aim the same function as that for which the Judicial Council's prescribed form is designed. The Judicial Council shall report periodically to the Legislature any statutory changes needed to achieve uniformity in the forms used in the courts of this state.


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to call their own children under Title Five Rule 5.250 to voice an opinion about their custody

preferences. They are subject to the screening process of “prefiling orders” under §391.7,

including the requirement of obtaining “permission” from a presiding judge or posting “security”

as a condition precedent to being granted access to family law courts or appellate courts.

73. The Defendants know or should know that appellate cases proclaiming that vexatious

litigants with “colorable claim” will be allowed access46 to courts may pass constitutional muster

but, in reality, both trial courts and appellate courts routinely deny MC-701 motions or

“permission” to file appeals. (*See, RJN, Exhibits P, S, and U). The Defendants know or should

know that some class members here have been denied permission to file for “emergency

visitation” after all their parental rights have been termination. (*See, Factual Allegations Parent

N, Parent AD, Parent C). Here, the class members are denied full and often any access to family

law courts solely on the “insidious basis of wealth” while the represented and affluent spouse’s

access is free and clear. (Boddie, supra 385, “Affluence does not pass muster under the Equal

Protection Clause for determining who must remain married and who shall be allowed to

separate.”).

Parents Denied Need-Based Fees Under Family Code §2030

74. Defendants know or should that Family Code §2030 and §2032 was implemented to

address the issue of the “unlevel playing fields” that exists where one wealthier parent is

represented but the indigent parent is unable to pay for an attorney.47 The Defendants know or

should know that the result or effects of imposing the VLS on unrepresented and/or indigent

parents occasion other unfair, unequal, unconstitutional treatment, and a second suspect class.

That suspect class consists of those “vexatious litigant parents” who have been denied “need-

based attorney fees” under §2030 and §2032 and thereby are not shielded from the VLS because

the family law court has refused to relieve them of the burden self-representation. (*See, In re

Marriage of Hatch (1985) 169 Cal. App. 3d 1213 where the appellate court found it was an

abuse of discretion for the trial court to deny fees where it was shown one parent could afford an

attorney but the other couldn’t.). For instance, here class members have sought to be relieved of

the burden of self-represented by requesting need-based fees under §2030. (Factual Allegations,

46 In Wolfgram, supra 53 Cal. App, 4th 43, 60: The Court of Appeals stated that when a vexatious litigant “knocks on the courtroom door with a colorable claim, he may enter.” 47 In re Marriage of Tharp (2010) 188 Cal. App. 4th 1295, 1315: The public policy purpose behind sections 2030 and 2032 is "'leveling the playing field' and permitting the lower-earning spouse to pay counsel and experts to litigate the issues in the same manner as the spouse with higher earnings." The appellate court remanded the case, ordering that need-based fees be made available to the indigent spouse before the “conclusion of the case.” Id., at 1316. The appellate court also directed the trial court to make a “needs-based analysis.”


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Parents AD, Parent C,48).

Affluent Parents Not Subject to VLS v. One or Both Self-Represented Indigent Parents.

75. The Defendants know or should know that imposing the VLS on custody disputes

creates a third suspect class. This class consists of the family law cases not subject to the VLS

(because both parents are affluent and can hire attorneys) and the class of custody battles subject

to the VLS (because one or both parents cannot afford representation). For instance, wealthy

parents such as Sharon Stone and Phil Bronstein can hire top-notch attorneys to represent them

in their custody dispute and dissolution proceeding, which can last for years and which they can

have “sealed” from public view.49 Access to family law courts is not tampered with for the

wealthy, but not so for poor or impoverished parents. (*See Factual Allegations, Parent N, Parent

H, Parent AD, Parent P, etc.).

76. The state’s rationale of managing its dockets and unclogging its courts of frivolous or

unmeritorious claims may stand up in civil cases, but in the context of family law custody cases,

the state’s rationale is neither compelling nor narrowly drawn.50 The Defendants know or should

know that the state’s rationale for the VLS, at least with respect to matters touching on

fundamental rights,” has been rejected by the state51 and federal Supreme Courts. (Boddie, supra,

382: “We are thus left to evaluate the State's asserted interest in its fee and cost requirements as

a mechanism of resource allocation or cost recoupment. Such a justification was offered and

rejected in Griffin v. Illinois, 351 U.S. 12 (1956)”.

77. Defendants have violated the Equal Protection clause of the 14th Amendment to the

U.S. Constitution, by, among other things, creating suspect classes that deprive Plaintiffs of

equal access to the family law courts.

78. In all of this, Defendants have, under color of state law, deprived Plaintiffs and Class

Members of rights, privileges or immunities security to them by the Constitution of the United

States, in violation of 42 U.S.C. §1983.

48 *See Exhibit VV, the family law judge berated Parent C for requesting “need-based fees” for the “eighth time” and then turned around and declared the parent “vexatious” for the second time for having no money to hire an attorney to be relieved of the burden of self-representation and subject to the VLS. 49 http://www.people.com/people/article/0%2C%2C20228302%2C00.html: The case number for the family law case of Bronstein v. Stone is not “available to the public.” Apparently, wealthy and privileged people and litigate to their hearts contend and “seal their records” from the general public.: http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=IJS&PRGNAME=CaseSearchProcess22&ARGUMENTS=-A,-A,-N0,-N1,-A,-ASTONE\%2C%20SHARON%20B,-A 50 *See fn 4 above, Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1325: “[W]hen an enactment broadly and directly impinges upon the fundamental constitutional rights…


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SECOND CLAIM FOR RELIEF Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights-

Violation of 14th Amendment’s Due Process Clause and 1st Amendment Right to Petition



Due Process Clause of the 14th Amendment

80. The Plaintiffs have the right under the Due Process Clause of the 14th Amendment to

a “meaningful opportunity” to be heard in their custody cases. (Boddie, supra, 377).

81. The Defendants know that family courts are the only forum provided by the state to

parents to resolve their custody dispute and denial of “full access” to that forum raises “grave”

concerns.52 The Defendants know, as noted in the Elkins Task Force’s final recommendations

and Chief Justice George’s statements in Elkins, that parents don’t have the funds to hire lawyers

in their custody disputes. Defendants know that in “society’s hierarchy of values” that a parent’s

parental fundamental constitutional custody rights are amongst the highest. (Stanley v. Illinois

(1972) 405 U.S. 645; Santosky v. Kramer (1982) 455 U.S. 745). Defendants know or should

know that “vexatious parents” under the VLS are denied full access and, often, any access, if

they are acting “in propria persona.”

1st Amendment-Right to Appeal/Writ

82. Plaintiffs have the right under the 1st Amendment and under Article VI, Section 11 of

the state constitution to “appellate review,” though the Legislature may restrict review to a writ

petition as opposed to direct appeals. (Powers v. City of Richmond (1995) 10 Cal. 4th 85, 110:

“…the Legislature may regulate the mode of appellate review, it may do so only to the extent

that it does not thereby "substantially impair the constitutional powers of the courts, or

practically defeat their exercise.' ").

83. The Defendants know that the Legislature has replaced a litigant’s constitutional right

51 Elkins v. Sup.Ct. of Contra Costa Co., 41 Cal. 4th 1337 (2007), “In other words, court congestion and ‘the press of business’ will not justify depriving parties of fundamental rights and a full and fair opportunity to present all competent and material evidence relevant to the matter to be adjudicated.” 52 Boddie, supra at 375-376: Thus, this Court has seldom been asked to view access to the courts as an element of due process. The legitimacy of the State's monopoly over techniques of final dispute settlement, even where some are denied access to its use, stands unimpaired where recognized, effective alternatives for the adjustment of differences remain. But the successful invocation of this governmental power by plaintiffs has often created serious problems for defendants' rights. For at that point, the judicial proceeding becomes the only effective means of resolving the dispute at hand, and denial of a defendant's full access to that process raises grave problems for its legitimacy.


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to appellate review under Cal. Const. Art. I, Section 10 with procedures under the VLS, which

call for “prefiling orders” as well as an appellate judge’s “permission” to file. (*See, Exhibit C).

Similarly, the Legislature substitutes a vexatious parent’s right to appellate review by a “three

judge court” as well as the requirement for the “concurrence of two judges…for a judgment”

(Cal. Const. Art. I. Sec. 3) with VLS procedures spelled under §391.7. Likewise, the prefiling

order provisions of §391.7 replaces a litigant’s right to a “written decision” with “stated reasons”

(Cal. Const. Art. I, Sec. 14)53 and the right to oral argument54 (CRC 8.256) with a “presiding

judge’s” summary determination that provides no written and merely provides the “recitation”

that the appeal has “has merit.” (*See fn 65; Appellate judges provide no reasons and merely spit

back the “boiler plate” language of “no merit.”).

84. The Defendants know or should know that by making §391.7 of the VLS as the

“essential mode” of appellate review in cases of “vexatious parents” that the Legislature has

effectively deprived Plaintiffs of any appellate review as is their right under the 1st Amendment

and the state constitution. 55

85. As applied here, the Defendants know or should know that Plaintiffs are routinely and

regularly denied “permission” under the VLS by presiding judges to file motions in their custody

disputes. (*See Factual Allegation, Parent H, P, N, C). Defendants know or should know that the

“vexatious parents” are denied either the right to file direct appeals or writs of mandate regarding

the “orders” declaring them “vexatious litigants” and requiring them to post security. (Horton v.

City of Beverly Hills (1968) 261 Cal. App. 2d 306; 307; Orders declaring a party vexatious and

requiring security are nonappeable interlocatory orders; *Also, see, Golin v. Allenby (2010) 190

Cal. App. 616, 639: “An order determining a party to be a vexatious litigant and requiring the

posting of security under section 391.3 is not directly appealable.” On the other hand, some

courts have relied on the mandate for a “liberal construction” of “notices to appeal” under CRC

8.821(a)(2) to rule that a declared “vexatious litigant” is not appealing from the nonappealable

interlocutory order, but from the dismissal and, thus, an appeal can be taken. Roston v. Edwards

53 Cal. Const. Art. I, Sec 14: Sec. 14. The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person. Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated. 54 Cal. Rules of Court, Rule 8.256(a)(1): Each Court of Appeal and division must hold a session at least once each quarter. 55 Powers, supra at 110: “…If it could be demonstrated in a given case, or class of cases, that, for whatever reason, the Courts of Appeal or this court could not effectively exercise the constitutionally granted power of appellate review by an extraordinary writ proceeding, then such a proceeding could not constitutionally be made the exclusive mode of appellate review.”


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(1982) 127 Cal. App. 3d 842, 84656; Likewise, Judge Sills in Luckett, supra at 90, relied on the

“liberal construction” and ruled that “…we deem Luckett's appeal to be from an order refusing to

dissolve the permanent (prefiling) injunction..” which it noted was appealable under the Code of

Civil Procedure §904.1(a)(6)).

86. Despite these rulings, the Defendants know or should know that the trial courts deny

Plaintiffs “permission” to file custody motions and then the appellate courts deny attempts to

“appeal” the denial of permission from the trial court, creating a procedural loop where all

appellate review is denied.57 The Defendants know or should know, particularly after amending

the VLS on January 1, 2013 and adding §391.8 (which purports to create a procedure to “erase”

the permanent “vexatious litigant” branding), that “vexatious parents” are denied the right to

appeal the trial court’s refusal to even allow for a hearing on the issue of “erasing” or lifting their

status as “vexatious.” (*See, Factual Allegations, Parent P, C.). The Defendants know or should

know that the appellate courts then deny “permission” to appeal the request to lift the

“vexatious” label, ruling that the appeals of order permanently branding parents as “vexatious”

has “no merit.” (*See, RJN, Exhibit E).

87. The Defendants know or should know that the Legislature has deprived the Plaintiffs

of access under the VLS and made their “status” as “vexatious” an “essential precondition” if

not an absolute barrier to access and the “adjustment of the fundamental relationships” they have

with their children. They should know that this contradicts the ruling in Boddie v. Connecticut,

their 1st Amendment right to petition, and the Plaintiffs’ rights under the state constitution.

56 Roston, supra 846: Notices of appeal should be liberally construed in favor of their sufficiency. (Rule 1(a), Cal. Rules of Court.) It is apparent plaintiffs intended to appeal from the final judgments of dismissal of their respective actions and not from the nonappealable interlocutory orders. No one has been misled and defendants have not been prejudiced. Consequently, we treat these appeals as being from the appealable judgments of dismissal. (Collins v. City & Co. of S. F. (1952) 112 Cal.App.2d 719, 722-723 [247 P.2d 362].)

57 *See A130206: After all his parental rights were terminated, the trial court denied Parent C’s request for an ex parte hearing on “emergency visitation” and then the Court of Appeals summarily determined that Appellant, who had been denied any contact with his daughter for over 9 months, had “no merit.” http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=1960835&doc_no=A130206

11/24/2010 Other involuntary dismissal

BY THE COURT: Archibald Cunningham has previously been found to be a vexatious litigant and is subject to a prefiling order. On November 8, 2010, Mr. Cunningham filed an application for permission to appeal the trial court's October 18, 2010 orders denying his requests for permission to file a document entitled "Ex Parte Hearing for Emergency Visitation and Appointment of Minor's Council [sic]." The application for permission to appeal is denied. Mr. Cunningham has failed to show a reasonable possibility that his appeal has merit. (See Code Civ. Proc., ? 391.7.)


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88. By imposing the VLS on parents in custody cases at the trial and appellate level,

Plaintiff’s due process rights are violated when they are locked out of the family law courts (and

appellate courts) under the VLS solely because they cannot afford to hire an attorney to relieve

them of the burden of having to act “in propria persona.” Having money to pay for an attorney or

having the good fortune to find a “pro bono” attorney then becomes, as a consequence or a direct

effect of the VLS, another “essential precondition” to the vexatious parents’ right to challenge

custody orders and to vindicate their parental rights. (Boddie, supra at 400-401).58

89. In all of this, Defendants have, under color of state law, deprived Plaintiffs and Class

Members of rights, privileges or immunities security to them by the Constitution of the United

States, in violation of 42 U.S.C. §1983.

THIRD CLAIM FOR RELIEF Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights-

Violation of 14th Amendment’s Due Process Clause (Imposition of VLS To Custody Cases On Its Face and As

Applied Is Unconstitutionally Vague and Overbroad ).

90. Plaintiffs realleges and incorporates herein by reference each and every allegation and

paragraph previously set forth.

Undefined Terms

91. In the context of custody proceedings, the VLS is constitutionally vague on its face

and as applied by trial courts and appellate courts. For instance, the VLS provides under section

391(b)(1) that a person can be declared “vexatious” if the person has suffered five “final adverse

determinations” in a seven year period. The VLS, however, does not provide a definition of the

term “finally determined adversely to the person.” In Wolfgram, the Court of Appeals ventures

reasonable guesses at what this language might mean, supra 58:

As a matter of common experience even many meritorious suits fail, due to the vagaries of the trial process if nothing else. Many more colorable suits fail, either due to pretrial disposition or failure to persuade the trier of fact. Yet, loss of five suits in but seven years is remarkable. Most people never sue anybody. While that does not lessen any person's right to sue to correct real or perceived injustices, it does suggest that the inference to be drawn from the statute is, despite Wolfgram's contrary view, relatively narrow: Only 58 Boddie, supra, 400: We do not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual, for, as we have already noted, in the case before us, this right is the exclusive precondition to the adjustment of a fundamental human relationship. The requirement that these appellants resort to the judicial process is entirely a state-created matter. Thus, we hold only that a State may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, preempt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so.


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those citizens who decline to hire lawyers, lose five suits in seven years, then undertake a sixth suit which lacks merit, will be labeled vexatious.

As noted by Wolfgram, suits can be dismissed or “adversely determined” on procedural grounds

even though they are “meritorious.” The Wolfgram court also reads into the VLS a distinction

between “colorable claims” and “meritorious” claims. Yet, nowhere in the express language of

the VLS can these distinctions be found. Instead, the VLS leaves trial courts to their own devises

to construe this “adversely determined” phrase. In Wolfgram, the court’s view of this phrase was

predicated on the assumption that the “suits” are civil rather than family law custody motions.

The Wolfgram’s view that “most people never sue anybody” may apply in civil suits, but in

family law matters, where up to 50% of marriages end in divorce, it is simply wrong. Likewise,

the Wolfgram’s assumption that people “decline to hire lawyers” flies in the face of the realities

explained in the Elkins Task Force. Further, it may be “remarkable” to the Wolfgram court that a

party could lose “five suits” in seven years, but Class Members know that they can, in their

custody disputes, lose “five litigations” within seven weeks.59

92. The Defendants know or should know, particularly after the final recommendations of

the Elkins Task Force, that family law courts are rift with unrepresented parents who are have

“no choice” in this matter and who are subject to the VLS for being self-represented. Defendants

know or should know that the applying the VLS to unrepresented parents in custody disputes

creates immediate ambiguities on the face of the statute. For instance, §391.1 provides that a

court may require the declared “vexatious litigant” to post security and §391.4 provides that a

suit “shall” be dismissed if the security is not provide. Here, for instance, one Class Member who

was involved exclusively in custody disputed was ordered to post $5000 in security. (*See, RJN,

Exhibit X). After he failed to post security, under §391.4, the family law court was required to

“dismiss” the case.60 Although the family law court did not comply with the requirement to

dismiss the custody dispute under §391.4 for failure to post security, Defendants cannot

reasonably argue that if there was a dismissal of the custody case under the VLS that it would

have been consistent with a parent’s custody rights. Nor could the Defendants reasonably argue

that the VLS preempts a parents due process rights in the custody case if they fail to or cannot

59 Section 391.7(d) defines “litigations” as motions. Hence, a parent could lose a pretrial motion for a §730 evaluator, a pretrial motion for minor’s counsel, a motion for need-based fees under Family Code §2030, a motion to modify visitation, a motion to recuse for cause, and with one more lost motion to increase child support the parent would be sunk. 60 CCP §391.4: When security that has been ordered furnished is not furnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished.


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post security.

Plain Language Readings of VLS As Mandated By Shalant

93. In Shalant v. Girardi, (2011) 51 Cal. 4th 1164, a civil case, the state Supreme Court

rejected “broad readings”61 of the VLS in favor of “plain language reading.” (1173, fn 4). It also

directed courts to “observe the limits set by the applicable statutory scheme” and pointed out that

“it’s the function of the Legislature, not the courts to expand them.” (supra, 1176). It also stated

that the distinction in the statute between “represented” litigants and those “in propria persona”

was not absurd.” (supra, at 1176).

Raising Section 391.1 Motions in Custody Disputes

94. In custody disputes, after Shalant v. Girardi, must the “moving defendant” (parent)

petition the court under §391.1 to have the “plaintiff” (parent) show both that the “moving

defendant” is vexatious and has no reasonable likelihood of prevailing in the custody dispute?

Or does a simple showing of “vexatiousness,” without a showing of a reasonable likelihood of

prevailing, suffice in such a §391.1 motion in family court? Should §391.1 be read together with

§391.3 to resolve any ambiguity or should the legislative record be considered? Any how does

any parent “prevail” in a custody dispute that may endure for years? Does the plain language of

the VLS suggest that only the “defendant” parent, not the “plaintiff” parent, can bring a §391.1

motion in a custody dispute? In the context of custody cases, would that mean that a “defendant”

father would have the right to make a §391.1 motion but a “plaintiff” mother never would? Once

found “vexatious,” does the custody dispute then mysteriously become “new litigation” under

§391.7 for purposes of imposing “a prefiling order” on the vexatious parent? And can a

“nonparty” jump into an on going custody dispute and conduct his own §391.1 motion against a

father that has sued the nonparty in a civil suit (as happened to a Parent C)? Can the trial court

suspend the right to a hearing promised by §391.2 as occurred to Parent K here? (*See, Factual

Finding, Parent C &K). Would this violate due process of law?

Old Custody v. New Custody Case

95. If, as the Supreme Court pointed out in Shalant62 that there are two remedies under

61 In Shalant v. Girardi, (2010), 183 Cal. App. 545, the Court of Appeals cautioned against “broad interpretations” of the VLS, supra, 557:“Given the important constitutional concerns that section 391.7 implicates, we conclude that the statute should not be broadly interpreted. Rather, it should be applied strictly according to its terms.” (emphasis added). 62 Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1171 : To summarize, our vexatious litigant statutes provide courts and nonvexatious litigants with two distinct and complementary sets of remedies. In pending litigation, a defendant may have the plaintiff declared a vexatious litigant and, if the plaintiff has no reasonable probability of prevailing, ordered to furnish security. If the plaintiff fails to furnish the security, the action will be dismissed. (§§ 391.1-391.6.)


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the VLS, one for “pending litigation” (under §391.1) and one for “new litigation” (§391.7) then

how does an ongoing custody dispute morph into or transform into “new litigation” for which the

“defendant/vexatious/ parent” is required to obtain “permission” to file? Does being declared

“vexatious” change the “old” custody dispute into a “new” custody dispute? Or is this, in the

context of a custody dispute, a legal fiction allowing a court to step in and essentially muzzle one

parent, not in the hopes of resolving the custody dispute, but in simply ending the litigation in

favor of the parent who is represented? Is there any reason to believe that a “represented” parent

is a better parent than a self-represented one? (*See Factual Allegations. *Note that each Class

Member who has lost parental rights has been “self-represented.”). The Defendants know of

should recognize these facially ambiguous provisions as applied by family law courts in custody

disputes.

Represented Parents

96. After Shalant v. Girardi, the application of the VLS to parents in protracted custody

disputes begs questions of its constitutionality. For instance, is it proper for family law judges to

impose provisions of the VLS against parents who are represented? (*See Factual Allegations,

Parent F, Parent C). If a parent is represented in a family law proceeding, but declared

“vexatious” in a probate proceeding, can the trial court impose a prefiling order against the

parent in the family law courts? Can the court impose the prefiling order against the represented

parent and the attorney in the custody case as occurred her with Parent F? (Factual Allegations,

Parent F). Faced with a §391.1 motion, may a parent hire or obtain a “pro-bono attorney” and

“moot” the §391.1 motion because the party is no longer acting “in propria persona”? 63

97. Would a pro-bono attorney representing the parent and defending against a §391.1

motion be allowed to have a continuance to review that charges against the client? Or could the

trial judge rule that the pro-bono attorney was a “mere puppet” under In re Shieh and impose the

VLS against the attorney? (*See Factual Allegations. Parent F’s pro-bono attorney was found to

during the §391.1 hearing and while trying to defend her client was found to be a puppet and had

a prefiling order imposed against her.). In imposing the VLS against the attorney, would the trial

court be acting in excess of or in the clear absence of all authority because the VLS, by definition

In addition, a potential defendant may prevent the vexatious litigant plaintiff from filing any new litigation in propria persona by obtaining a prefiling order and, if any new litigation is inadvertently permitted to be filed in propria persona without the presiding judge's permission, may then obtain its dismissal. (§ 391.7.) 63 *See, Factual Allegations: Plaintiff K had obtained an attorney prior to the §391.1 hearing and the family law judge “vacated” the hearing, denying the parent the right to present any evidence, “written or oral” or “by witness or affidavit” and ruled the parent was a “vexatious litigant” in his statement of decision.


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and in view of the Shalant ruling, does not apply to attorneys? Would the judge be depriving the

attorney of the right to practice law? Would the judge be denying the client the right to have an

attorney?64

Permanent Branding of Parents As Vexatious.

98. As noted by Judge Sills in Luckett v. Panos, the VLS raises an issue of the duration

of the “vexatious litigant” label. This issue was raised 20 years ago by John E. Wolfgram in

Wolfgram v. Wells Fargo Bank and then addressed by the Court of Appeals for the Second

Appellate District was “troubled” by this “permanent” branding issue. (PBA, LLC v. KPOD, Ltd.

(2003) 112 Cal. App. 4th 965)). The PBA court stated, supra :

While there is much to recommend this reasoning, the conclusion section 391.7 is to be a permanent, irrevocable restriction is troubling. Although section 391.7 does not absolutely exclude the "pro per" litigant from the courts, we believe fundamental fairness requires the "vexatious litigant" brand be erasable in appropriate circumstances.

While the Judicial Council on January 1, 2013 added section 391.8 to the VLS along with forms

MC-702 and MC 703, this does not resolve the issue but just begs more questions. Why did it

take them 20 years to respond to the “perpetual branding” question? Does a “vexatious parent”

have the right to a full evidentiary hearing with the right to call witness under Family Code §217

when seeking to “lift” the “injunction”? Is the minimum duration of the branding “at least four

years” as Judge Sills recommended in Luckett v. Panos? Is the “branding” an injunction under

Code of Civil Procedure §533 as Judge Sills concluded, which would be appealable as an order

to refuse to dissolve an injunction under §904.1(a)(b)? On the other hand, would the refusal to

allow a §391.8 motion to erase the branding be an interlocutory nonappealable “order” as Judge

Sills pondered in Luckett? (supra, 89-90). Is Judge Sills statement, “we also provide a roadmap

as to how Luckett, or any other a person already adjudicated to be a vexatious litigant, can

succeed in having that determination lifted,” and his listing of “factors” impermissibly judicial

legislating? Is that implicitly suspect after the strict constructionist view taken in Shalant? Does

the uncertain duration of the branding of “vexatious parents,” the inability to present evidence or

have an evidentiary hearing, and the scores of unanswered questions it raises, renders the VLS

unconstitutionally vague or overbroad? (9 Witkin, Cal. Procedure (4thed. 1997) Appeal, §446, at

493; However, where the error results in denial of a fair hearing, the error is reversible per se.

Denying a party the right to testify or to offer evidence is reversible per se. (Fewel v. Fewel

(1943) 23 Cal. 2d 431,433.).

64 *See, fn 23, Weissman v. Quail Lodge, Inc. (1999 9th Cir. Cal.) 179 F3d 1194.


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Impromptu Section 391.1 Motions By the Appellate Courts “On Their Own Motions.

99. For that matter, can a Court of Appeals, on its own motion under §391.7 and while

there is no pending litigation on appeal, conduct a §391.1 motion on the basis of ‘unsuccessful”

appeals of family law decisions? (*See Factual Allegation, Parent P). Would the party called to

defend himself before the appellate court be the “plaintiff”? Would the Court of Appeals be or

become the “moving defendant” as those terms are defined by the statute? Would the appellate

court’s impromptu §391.1 motion, when there is no “pending litigation,” work to preempt the

need for a “summons and complaint,” the requirements for a “response,” and service of process

under the Code of Civil Procedure? Would the Court of Appeals then be an impromptu trial court

issuing a “vexatious litigant order” or would it remain an appellate court issuing an “appellate

opinion”? Would the vexatious litigant parent-plaintiff-appellee then be allowed to appeal this

“order/opinion”? And to whom? The Supreme Court? How would this impact the Rooker-

Feldman doctrine if the “vexatious parent” was denied access to the state courts but sought to

challenge the “constitutionality” of the VLS? These are not rhetorical questions but actual

considerations as Parent P must consider after being confronted by an impromptu §391.1 motion

by an appellate court.

Multiple Vexatious Litigant Motions With Multiple Fee Award.

100. As occurred here to a Parent C (*See, Factual Allegations, Parent C), may a family

law judge conduct multiple vexatious litigant hearings against the same father on the same

grounds and then sanction him multiple times? Would this application of the VLS be supported

by a “plain reading” of the VLS as mandated by the Supreme Court in Shalant? Would multiple

§391.1 motions with multiple sanctions against the same father on the same grounds by the same

family law judge improperly preempt principles of res judicata and collateral estoppel? Would

the parent’s appeal of the first vexatious litigant order “automatically stay” (under CCP §916) the

second vexatious litigant hearing? Would the judge’s refusal to stay the second hearing pending

the outcome of the first vexatious hearing be supported by a “plain reading” of the VLS? Did the

judge, in allowing the second hearing, improperly read the VLS as preempting the Code of Civil

Procedure? After the first vexatious litigant fee award was overturned (A124717), did that also

overturn the second vexatious litigant order? Or did the appellate court’s refusal to grant

permission to appeal the second vexatious litigant order violate the 1st or 14th Amendments? Are

other family law judges conducting multiple vexatious litigant hearings?

*Right to Appellate Review, Denial of Permission to Appeal,


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101. In Powers v. City of Richmond (1995) 10 Cal. 4th 85, the Supreme Court held that

the "appellate jurisdiction" provision of article VI, section 11 of the Constitution did not grant a

litigant the right to a “direct appeal” as opposed to a “writ of mandate.” While the Supreme

Court noted that the litigant did not have a right to appeal with a decision on the merits, oral

argument, and that the Legislature could “regulate the mode of appellate review,” the Supreme

Court noted that the Legislature could not “impair” or “practically defeat” an appellate courts’

exercise of appellate review.65

102. In view of Powers, the imposition of the VLS on “vexatious parents” begs

constitutional questions. Unlike civil litigants, “vexatious parents” seek to appeal judgments

involving their fundamental custody rights. Likewise, they seek to appeal orders involving child

support and visitation66, which often tie in with restraining orders. Do the forms used by the

appellate courts to determine if a request to appeal or file a writ “has merit” (*See, MC-700, 701)

comply with a parent’s right to “appellate review” that is guaranteed by the state and federal

constitution? Can it reasonably be argued by Defendants that these “requests for permission”

forms demanded by appellate courts provide any, let alone effective or sufficient appellate

review? If a “represented” parent is denied the right to file an “order to show cause” after the

termination of all parental rights for failing to post a bond (as has occurred here),67 can the

65 Powers, supra 110: This does not mean, however, that the "appellate jurisdiction" provision imposes no restrictions on the Legislature's authority to allocate appellate review as between direct appeals and extraordinary writ petitions. As we have seen, the plain language of the provision reveals that it is a grant of judicial authority and this form of grant has been interpreted to mean that, although the Legislature may regulate the mode of appellate review, it may do so only to the extent that it does not thereby " 'substantially impair the constitutional powers of the courts, or practically defeat their exercise.' " (In re Jessup, supra, 81 Cal. 408, 470, italics omitted; see also Haight, supra, 8 Cal. 297, 300.) If it could be demonstrated in a given case, or class of cases, that, for whatever reason, the Courts of Appeal or this court could not effectively exercise the constitutionally granted power of appellate review by an extraordinary writ proceeding, then such a proceeding could not constitutionally be made the exclusive mode of appellate review. (emphasis added). 66 *See A130206: http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=1960835&doc_no=A130206: 11/24/2010 Other involuntary

dismissal BY THE COURT: Archibald Cunningham has previously been found to be a vexatious litigant and is subject to a prefiling order. On November 8, 2010, Mr. Cunningham filed an application for permission to appeal the trial court's October 18, 2010 orders denying his requests for permission to file a document entitled "Ex Parte Hearing for Emergency Visitation and Appointment of Minor's Council [sic]." The application for permission to appeal is denied. Mr. Cunningham has failed to show a reasonable possibility that his appeal has merit. (See Code Civ. Proc., ? 391.7.)

67 *See, A130282: http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=1961615&doc_no=A130282:


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appellate court refuse to review the 30 page writ filed by the represented parent/appellant on the

grounds that the writ does not contain “sufficient documentation”? Does that offend the parent’s

right to petition?

102. In the same way, if a Class Member (such as Parent P) is declared “vexatious” by an

appellate court and wishes to appeal, does he first have to file a motion for reconsideration with

the appellate court or must he file a petition with the state Supreme Court? Does the procedural

ambiguity and uncertainty resulting from the appellate court’s §391.1 action impinge on the right

to petition? Can it reasonably be argued by Defendants that the right to appellate review is not

infringed upon because the “vexatious parents” have the right to hire a lawyer? Can it reasonably

be argued by Defendants that the VLS does not offend the right to petition at the trial court or on

the appellate level when these courts, almost categorically, deny all requests?

103. The Legislature has created a facially vague statute and has improperly delegated to

the trial and appellate judges the job of ferreting out the meaning of each and every sentence in

almost every provision. The rulings amongst the court are themselves inconsistent and often

contradictory. The branding as “vexatious” is of an indefinite duration and the procedures to

“lift” the label are uncertain. The Legislature has delegated to the trial courts the right to fill in

the gaps and uncertainties in the procedures on an ad hoc and subjective basis. (“A vague law

impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on

an ad hoc and subjective basis, with the attendant dangers or arbitrary and discriminatory

application.”; Grayned v. City of Rockford, 408 U.S. 104, 108-1093, (1972)

104. Defendant’s actions, orders and rulings deprive Plaintiff of his rights, privileges or

immunities secured to him by the Constitution of the United States in violation of 42 U.S.C.

§1983.

FOURTH CLAIM FOR RELIEF Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights-

The Vexatious Litigant Statutes As Applied Here Creates a Prior Restraint in Violation of

the 1st Amendment Right to Petition

11/23/2010 Order denying

petition filed. Petitioner, a vexatious litigant who is now represented by counsel, has filed a petition for writ of mandate challenging the trial court's requirement that petitioner post a bond to have an order to show cause placed on calendar. Without commenting on the merits of the petition - or whether petitioner is allowed to file such a petition without posting a bond - we deny the petition without prejudice because it does not contain sufficient documentation for the court to consider the merits of the claim. (See Serna v. Superior Court (1985) 40 Cal.3d 239, 246.)


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106. The Class Member’s right to petition for redress of grievances is a fundamental right

protected by the 1st Amendment and of the United States Constitution and the Constitution of the

State of California. (Art. I, §§ 2, 3.).68

107. As noted above , Judge Cardoza has urged family law judges to use the VLS as a

“tool to discourage repeated motions by parents to regain custody of their children when there

are no changed circumstances to justify a different result." to “(In re R.H., supra 700). The

requirement for a “prefiling order” and/or security before being allowed to file motions in a

custody dispute is an unconstitutional prior restrain. The VLS, in custody cases, is directed at

enjoining any “speech” (argument, contentions, etc.) related to the custody dispute. This use of

the VLS functions as a prior restrain on the right to petition by limiting, restricting, or curtailing

the presentation of relevant evidence and testimony that could be used by a parent to prove a

“change of circumstances” justifying a need to change in visitation or custody. By imposing the

VLS on custody cases, the state purports to allow family law courts to enjoin the presentation of

any relevant evidence, including evidentiary hearing (Family Code §217), live testimony (Family

Rule 5.113, 5.250), and relevant evidence under Evidence Code §353 that a parent needs to

“regain custody rights.”

108. The Defendants know or should know that the use of the VLS as a tool to muzzle or

gag parents in advance of a court hearing on a custody issue constitutes a prior restraint on their

right to petition. (Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1979); City of Long Beach v.

Bozek (1982) 31 Cal. 3rd 528; “The right of petition is of parallel importance to the right of free

speech and the other overlapping, cognate rights contained in the First Amendment and in

equivalent provisions of the California Constitution. Although it has seldom been independently

analyzed, it does contain an inherent meaning and scope distinct from the right of free speech. It

is essential to protect the ability of those who perceive themselves to be aggrieved by the

activities of governmental authorities to seek redress through all the channels of

68 The right of petition, like the other rights contained in the First Amendment and in the California constitutional Declaration of Rights, is accorded "a paramount and preferred place in our democratic system." (American Civil Liberties Union v. Board of Education (1961) 55 Cal.2d 167, 178; The Supreme Court has stated that "the rights to assemble peaceably and to petition for a redress of grievances are among the most precious of the liberties safeguarded by the Bill of Rights. These rights, moreover, are intimately connected, both in origin and in purpose, with the other First Amendment rights of free speech and free press." (Mine Workers v. Illinois Bar Assn. (1967) 389 U.S. 217, 222 [19 L.Ed.2d 426, 430, 88 S.Ct. 353]; see also Thomas v. Collins (1945) 323 U.S. 516, 530 [89 L.Ed. 430, 440, 65 S.Ct. 315]; De Jonge v. Oregon (1937) 299 U.S. 353, 364 [81 L.Ed. 278, 283, 57 S.Ct. 255].)


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government….”). 69

109. The Defendants know or should know that the VLS’ restraint on access to family

law courts in turn impinges on fundamental custody rights. Parents cannot prove that there has

been a “change of circumstance” unless they have access and the right to present evidence, such

as live testimony. By using the VLS to deny access, “vexatious litigant” parents are deprived of

an opportunity to present their custody case. The deprivation of due process of law is the

secondary effect of the denial of access. In this sense, the VLS is tantamount to a mandatory

presumption that any challenge to a final custody order is without merit. 70 The imposition of the

VLS in custody disputes is hopelessly circular both procedurally and substantively. (Vexatious

parents cannot show “changed circumstances” because the VLS denies them access to present

their case.). Here, Class Members have lost custody rights in “trials by declarations” without

every being given having a “fully litigated hearing” as noted by Chief Justice George in Elkins.

110. Defendants have violated the Class Member’s 1st Amendment right to petition under

the U.S. Constitution, by, among other things, applying the VLS as a prior restraint.

111. In all of this, Defendants have, under color of state law, deprived Plaintiffs and

Class Members of rights, privileges or immunities security to them by the Constitution of the

United States, in violation of 42 U.S.C. §1983.

FIFTH CLAIM FOR RELIEF Unwritten Rules and Procedures Implementing Prefiling Orders

Violates Due Process Clause of 14th Amendment

112. Plaintiff realleges and incorporates herein by reference each and every allegation

and paragraph previously set forth.

69 Bozek, fn 4: The legislative history of California Constitution article I, section 3, reveals an intent to make the California provision at least as broad as the First Amendment right of petition. Article I, section 10 of the California Constitution, originally enacted in 1849, stated: "The people shall have the right to freely assemble together to consult for the common good, to instruct their representatives, and to petition the Legislature for redress of grievances." (Italics added.) On November 5, 1974, the voters of this state adopted the following amended and renumbered provision: "The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good." (Italics added.) (Cal. Const., art. I, § 3.) The amendment was clearly intended to broaden the right of petition to make it extend to petitions to all branches of government, not merely to the Legislature. (See Proposed Revision of the California Constitution, Articles I, XX, XXII, 5 Cal. Const. Revision Com. Rep. (1971) p. 23.)

70 In Elkins, Chief Justice George noted that any presumption that a custody order was final depended on a there having been a “fully-litigated hearing.” A postjudgment motion for modification of a final child custody order, for example, requires the moving party to demonstrate a significant change of circumstances warranting departure from the judgment. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) A presumption exists that the judgment is correct and should not be disturbed -- a presumption that would not be well founded were the judgment to be based upon


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113. Defendants know or should know that the U.S. Supreme Court declared that Due

Process guarantees apply to family law proceedings in Boddie v. Connecticut (1970) 401 U.S.

371, 377-378). In Boddie, the U.S Supreme court explained: “[D]ue process requires, at a

minimum, that absent a countervailing state interest of overriding significance, persons forced to

settle their claims of right and duty through the judicial process must be given a meaningful

opportunity to be heard... Although '(m)any controversies have raged about the cryptic and

abstract words of the Due Process Clause,' ... 'there can be no doubt that at a minimum they

require that deprivation of life, liberty or property by adjudication be preceded by notice and

opportunity for hearing appropriate to the nature of the case.' (Boddie, supra, at 377-378).

114. Defendants know or should know that the California Supreme Court has ruled in

Elkins v. Sup. Ct. of Conta Costa Co. (41 Cal. 4th 1337 (2007)) that courts may not adopt local

rules or procedures that are inconsistent with statute, rules of the Judicial Council, case law or

constitutional law.71

115. The Defendants know or should know that the 14th Amendment provides that no

State shall “deprive any person of life, liberty, or property, without due process of law.”72

116. The Defendants know or should know that under CCP §391.7(b) a presiding judge

may deny a party the right to file if the judge finds the submitted pleadings lacks “merits” or are

being filed to “harass” or cause “delay.” They also know that Judicial Council form MC 701

provides an informal procedure which the presiding judge uses to decide if the party’s action has

“merit” and should be allowed to file. The form does not provide for a hearing, the presentation

of any evidence, or testimony, but requires the party to “attach a copy” of the “document to be

hearsay (unless admitted into evidence upon stipulation of the parties). 71 Elkins, supra, at 1351-53. The scope of a court’s inherent rulemaking authority has been discussed in various decisions (see, e.g., Rutherford, supra, 16 Cal.4th at pp. 967-968), and the outer limits of such authority are clear. A trial court is without authority to adopt local r rules or procedures that conflict with statutes or with rules of court adopted by the Judicial Council, or that are inconsistent with the Constitution or case law. (Rutherford, supra, at pp. 967-968; see also Hall v. Superior Court (2005) 133 Cal.App.4th 908, 916-918.) As provided in Government Code section 68070, subdivision (a): “Every court may make rules for its own government and the government of its officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council.” (Italics added; see also 2 Witkin, Cal. Procedure (4th ed. 1996) Courts, § 204, p. 272; id. (2006 supp.) § 204, pp. 87-88.).

72 See also, Cal. Const. Art. 1, §7.


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filed.” Further, the VLS does not indicate whether the presiding judge’s “merit” determination

should involve a hearing or the presentation of evidence. Nor does the VLS set out procedures,

name factors to consider, or provide any standards to be used by the presiding judge in rendering

the “merit” order. The form MC 701, however, does provide a section for an “ORDER” with

three boxes (Granted, Denied, or Other) and another box for “Attachment to order; Number of

pages ____.” There are no instructions on the form as to whether the presiding judge is required

to provide a written response and “attach” its response/decision to the order.

117. In making its “merit” determination, neither the VLS nor the Judicial Council MC-

701 form state what standards should be applied73, what factors should be considered, when the

merit ruling should be made or whether the Plaintiff has a right to “appeal” the order. However,

the courts presume judges obey all laws, particularly the state and federal Constitutions, which

they are sworn to uphold. (Evid. Code, §664 [presumption that official duty "regularly

performed"]; Civ. Code, § 3548 ["law has been obeyed"].) The “merit determination,” being

completely an opaque process without written reasons or explanations is beyond scrutiny and

devoid of any proof to support the determination. (This creates an improper mandatory

presumption under Hicks v. Feiock (1988) 485 U.S. 624).

118. The Due Process Clause requires states to afford civil litigants a “meaningful

opportunity to be heard” by removing obstacles to their full participation in judicial proceedings.

(*See, Boddie v. Connecticut, 401 371, 379 (1971), fees for filing divorce; M.L.B. v. S.L. J. 519

U.S. 102, 136 (1996), the costs of transcripts needed to defend termination proceeding). The

hearing required by the due process clause must be "'meaningful'" and "'appropriate to the nature

of the case.'" ( *See, Bell v. Burson, 402 U.S. 535, 541-542: “A procedural rule that may satisfy

due process in one context may not necessarily satisfy procedural due process in every case.

Thus, procedures adequate to determine a welfare claim may not suffice to try a felony charge.”

Compare Goldberg v. Kelly, 397 U.S. at 270-271, with Gideon v. Wainwright, 372 U.S. 335

(1963)”).74

73 In re R.H., 170 Cal. App. 4th 678 (2009). The standard used by a presiding judge after a prefiling order has been imposed is, “the simple showing of an arguable issue.” (Id, at 705). 74 Bell v Burson, supra, at 539: “Once licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases, the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Goldberg v. Kelly, 397 U. S. 254 (1970). This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a


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. 119. Defendants know or should know that Class Members’ requests for change to

custody or visitation orders will be decided using form MC 701 and by the unwritten procedures

and rules implementing the VLS. The unwritten rules include the absence of any meaningful

time frame for making a “merit” determination, with delays for months and months. The

unwritten rules apparently allow presiding judges to refuse a “vexatious parent’s” attorney to file

on his behalf without any explanation or citation to any authority for doing so. (*See Exhibit U).

The unwritten procedures involve allowing the presiding judge to make the merit determination

without a written decision or opinion, or one word of explanation. The unwritten procedures and

rules apparently also involve the denial of any right to appeal or review or reconsideration. While

courts have stated that the VLS is applied with distinct standards, the reality of family law courts

is different.75

120. Defendants know or should know that the appellate courts use their own forms, such

as the “Application for Permission to Appeal or to File Writ Petition” that is used by the Court of

Appeals for the First District. (RJN, Exhibit AAA). The same due process concerns associated

with the MC-701 form apply equally to the appellate forms.

121. While the “merit” determination of CCP §391.7(b) coupled with the MC-701 form

and appellate forms may be “narrowly drawn” and satisfy due process requirements in the

context of civil suits involving licensing requirements for baby strollers, it cannot be said that the

summary procedure used here by Defendants satisfies due process in the context of “merit”

decision involving fundamental parental rights.

122. In the context of a family law proceeding with an issue of the termination of a

parents visitation rights at stake, it cannot be said that the state’s interest in curbing “vexatious”

litigation and its methods for achieving that legitimate interest is narrowly drawn where parents

have been shut off from the only forum in which he can regain his visitation rights. As explained

in Boddie and Elkins, an argument for efficacy in managing the docket does not justify an

"right" or a "privilege." Sherbert v. Verner, 374 U. S. 398 (1963) (disqualification for unemployment compensation); Slochower v. Board of Education, 350 U. S. 551 (1956) (discharge from public employment); Speiser v. Randall, 357 U. S. 513 (1958) (denial of a tax exemption); Goldberg v. Kelly, supra (withdrawal of welfare benefits). See also Londoner v. Denver, 210 U. S. 373, 210 U. S. 385-386 (1908); Goldsmith v. Board of Tax Appeals, 270 U. S. 117 (1926); Opp Cotton Mills v. Administrator, 312 U. S. 126 (1941).” 75 “To the extent [section 391.7] keeps vexatious litigants from clogging courts, it is closer to ‘licensing or permit systems which are administered pursuant to narrowly drawn, reasonable and definite standards’ which represent ‘government's only practical means of managing competing uses of public facilities[.]’ ” (Wolfgram v. Wells Fargo Bank (1997) 53 Cal. App. 4th 43, 60.


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infringement of fundamental rights.76. This violates his Fourteenth Amendment Due Process

rights to a meaningful opportunity to be heard.

123. Defendants’ actions, orders and rulings, taken under color of law individually and in

consort, deprive Plaintiff of his rights, privileges or immunities secured to him by the

Constitution of the United States in violation of 42 U.S.C. §1983.

SIXTH CLAIM FOR RELIEF Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights-

The VLS Functions as an Improper Bill of Attainder



125. The VLS as applied to custody cases in family law proceedings amounts to an illegal

bill of attainder prohibited by the U.S. Constitution Article I, Section 9; Clause, which provides

"[N]o Bill of Attainder or ex post facto Law shall be passed.”77

126. As applied in custody cases, the VLS changes Class Members visitation rights in

several ways. First, visitation orders that have drastically curtailed or terminated parental rights

become “permanent” as the result of family law judges’ refusal to grant vexatious parents’

“permission” to file challenges to visitation and custody orders. (*See, Factual Allegations where

the VLS has been used to lock parents out of court after terminating all their parental rights.).

Second, the VLS restricts access and the ability of “vexatious parents” to prove, as noted above,

that there has been a “change of circumstance.” The effect of applying the VLS to custody

disputes creates a third series of problems. Those temporary orders depriving parents of custody

(which become “de facto termination orders” as a result of being beyond challenge since no

access), change parental rights under the Family Code and Title Five Rules. The de facto

termination of all parental rights for three, four, five years as has occurred to Class Member here

(*See Factual Allegations, Parent H, AD, N, C), serves to rewrite the “best interest” test of

Family Code §3011 (how is the termination of all parental rights in the “best interest” of a

76 Boddie, supra, at 401. We are thus left to evaluate the State's asserted interest in its fee and cost requirements as a mechanism of resource allocation or cost recoupment. Such a justification was offered and rejected in Griffin v. Illinois, 351 U.S. 12 (1956). *See also, Elkins v. Sup.Ct. of Contra Costa Co., 41 Cal. 4th 1337 (2007), “In other words, court congestion and ‘the press of business’ will not justify depriving parties of fundamental rights and a full and fair opportunity to present all competent and material evidence relevant to the matter to be adjudicated.”

77 *See Cal. Const. Art. I, section 9: A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.


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child?). It negates the requirement for a “detriment” finding before parental rights can be

terminated under Family Code §3041. The de facto terminations serve to negate a parent’s right

to “frequent and continual contact” under Family Code §3040, §3080. The Class Members’

custodial rights are thus altered by the VLS that adversely affect them as parents, thus depriving

them of custodial rights that other parents in California enjoy.

127. The Defendants know or should know, as pointed out by Judge Cardoza in In re

R.,H., that the VLS is specifically applied to the class of parents in custody disputes. They know

or should known that this constitutes a legislative determination that “custody disputes” are

unmeritorious motions and that they should be denied before they are even heard despite the fact

that custody disputes involve fundamental rights and parents have the right to “evidentiary

hearings” under Family Code §217 and the right to live testimony under Title Five 5.113, 5.250.

Their “blameworthy conduct” is nothing more than trying to “regain custody” as Judge Cardoza

stated. The constitutional defects arise from the statutes’ text (the prefiling order and security

requirements of §391.7) and legislatively determining “quilt” without the protections of due

process of law as provided by the Family Code and Title Five Rules. Nixon v. Adm'r of Gen.

Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 2802, 53 L.Ed.2d 867 (1977).

128. Under the prevailing case law, a law is prohibited under the bill of attainder clause

"if it (1) applies with specificity, and (2) imposes punishment." BellSouth Corp. v. FCC, 162

F.3d 678, 683 (D.C. Cir. 1998). The element of specificity may be satisfied if the statute singles

out a person or class by name or applies to "easily ascertainable members of a group." United

States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078-79, 90 L.Ed. 1252 (1946). The Supreme

Court ruled in that the second element of punishment78 was shown by a legislative act that

resulted in a father’s “deprivation of parental rights” and the “opprobrium of being braded a

criminal child abuser.” Doris R. Foretich, et al. v. United States, 351 F.3d 1198 (D.C.App. 2003).79

129. In view of Judge Cardoza and Judge Sills statements, it cannot reasonably be argued

78 The U.S. Supreme Court noted that the question of a statute imposes punishment, a court should pursue a

three-prong analysis:(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, "viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes"; and (3) whether the legislative record "evinces a congressional intent to punish." Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 852, 104 S.Ct. 3348, 3355, 82 L.Ed.2d 632 (1984) (quoting Nixon, 433 U.S. at 473, 475-76, 478, 97 S.Ct. at 2805, 2806-2807, 2808).

79 Foretich, supra: In this case, the legislative history is replete with evidence that the statutory purpose of the Elizabeth Morgan Act was to "correct an injustice" and take sides in a notorious custody dispute. Hearing at 8, J.A. 41 (statement of Rep. Molinari). The focus of the Act and the unusual committee hearing in consideration of the bill demonstrate that the legislative process in this case amounted to precisely that which the Bill of Attainder Clause


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by Defendants that the “vexatious parents” are not being vilified as having “mental disorders” or

being “criminal masterminds.” This is unmistakable evidence of “punitive intent. The public

contempt and ignominy for “vexatious litigants,” including “vexatious parents,” is personified by

the “list” maintained for public view, which is the functional equivalent of public pillorying in

our digital age. The fact that the Judicial Council has created forms, MC-703 & MC-704, which

allow vexatious parents to petition to remove themselves from the “lists” does not diminish the

public shaming.

130. Nor can the Defendants reasonable contend that the VLS as applied to parents in

custody disputes is “nonpunitive” or narrowly drawn. The state may have a legitimate interest in

curbing “vexatious” or frivolous litigation in civil cases, but in custody cases the use of the VLS

impinges the right to petition and undermines custody rights and has, in some cases, resulted in

the termination of all custodial rights. (*See, Factual Allegations).

131. Nor can the Defendants argue that the VLS is narrowly drawn in the context of

custody disputes where affluent parents can litigate their custody dispute without restrictions and

perpetually while impoverished parents who have been declared “vexatious” are often denied all

access. The state could impose “less burdensome” alternative on “vexatious parents” simply by

limiting the reach of the VLS to “civil cases” as opposed to “family law litigants” (the VLS does

not reach to “criminal matters” as pointed out in McColm, supra ) or by providing funds for

“need-based” fees as recommended by the Elkins Task Force. (*See, Nixon, 433 U.S. at 482, 97

S. Ct. at 2810).

132. Defendants have violated the state and federal constitution by applying the VLS on

“vexatious parents,” which functions as a bill of attainder.

133. In all of this, Defendants have, under color of state law, deprived Plaintiffs and

Class Members of rights, privileges or immunities security to them by the Constitution of the

United States, in violation of 42 U.S.C. §1983.

SEVENTH CLAIM FOR RELIEF Claim under 42 U.S.C. §1983, Deprivation of Federal Constitution Rights-

The VLS Functions as an Improper Ex Post Law



135. The VLS as applied to custody cases in family law proceedings amounts to an illegal

ex post facto law prohibited by the state and federal constitutions. (U.S. Const. Article 1, Section

was designed to prevent: a congressional determination of blameworthiness and infliction of punishment.”


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9, Clause 3).

136. The VLS looks to past litigation to determine “vexatious” conduct, particularly

“litigations that have been finally determined adversely” to the person (*See, §391(b)(1) & (2).

However, the VLS does not define the term “finally determined adversely”80 and has relied on

trial judges and appellate decisions on an ad hoc basis to define the meaning of various terms

such as “litigation.”

137. In McColm v. Westwood Park Assn, the Court of Appeals judicially expanded the

definition of litigation” under §391(b) to include writs, appeals, and petitions. (supra, 1219). But,

later appellate courts have retrenched, refusing to define “litigation” under the VLS as including

those petitions and writs that are “summarily denied” without ever reaching the “merits”. These

appellate courts have ruled that “summary denials” cannot be counted as “vexatious litigation”

because such summary denials do not involve “final determination,” that is, that there was no

“adverse determination” on the merits of a case. (Fink v. Shemtov (2010) 180 Cal. App. 4th

1160).81 (In Leone v. Medical Board (2000) 22 Cal. 4th 660, 669, the California Supreme Court

explained, "a summary denial of a writ petition on a pretrial issue does not establish the law of

the case.").

138. The Defendants know or should have known that the state statutes are not to be

given a retroactive operation “unless it is clearly made to appear that such was the legislative

intent.” (Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 855 (1990); Aetna Cas.

& Surety Co. v. Ind. Acc. Com. 30 Cal. 2nd, 388; ; California Civil Code section 3, declaring

“[no] part of [this Code] is retroactive, unless expressly so declared.”; Calif. Family Code, 4(e)(f)

& (g); 5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, 288, pp. 3578-3579.).

(Every statute, which takes away or impairs vested rights acquired under existing laws, or

creates a new obligation, imposes a new duty, or attaches a new disability, in respect to

transactions or considerations already past, must be deemed retrospective. Landgraf v. USI

Film Products, 511 U.S. 244, 280 (1994)).

139. The Defendants know or should know that the VLS does not contain any plain or

80 In Wolfgram, supra at 58, the Court of Appeals riffed that “[Y]et, loss of five suits in but seven years is remarkable. Most people never sue anybody. most people don’t sue anyone.” The fact that statistic show that 50% of married couples, many with children, end up in dissolution proceedings seems to be have been lost on the court. In making this observation, Plaintiff illustrate the fact that most courts construe and consider the language of the VLS in terms of “civil,” not “family law” litigations. 81 Fink, supra at 1172: Although a writ proceeding generally qualifies as a litigation within the meaning of section 391, subdivision (a) (see McColm v. Westwood Park Assn., supra, 62 Cal.App.4th at p. 1216), for the reasons we next explain, we hold the summary denial of a writ petition does not necessarily constitute a litigation that has been


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express language that the VLS is to apply (retroactively) to past writs, petitions, and appeals.

There is no express language in the VLS that provides that the definition of “litigation” under

§391(a) is to include “writs, appeals, and petitions” whether they are “adversely determined” or

not adversely determined.”82 Nor is a “vexatious litigant” defined under §391(a)(1-4) as a person

acting in propria persona while “filing writs, petitions, or appeals.” After the appellate decisions

(Fink, Leone, etc.) that “summary denials” of writs or petitions cannot count as “finally adverse

determinations” for purposes of the VLS, it’s clear that there is no Legislative intention, only

judicial legislation, that provides for a retroactive application of the VLS to appeals, writs, and

petition (whether of civil litigants or family law litigants.).

140. The Defendants know or should know that the application of the VLS to appeals,

writs and petitions will also have a chilling affect on litigants’ decision to exercise their right to

appeal. As noted by the Wolfgram court, the VLS kicks in under §391(a)(1) after a family law

litigant loses their “sixth litigation” in seven years. (Wolfgram, supra 58; “Only those citizens

who decline to hire lawyers, lose five suits in seven years, then undertake a sixth suit which lacks

merit, will be labeled vexatious.”). Since §391.7(d) defines “motions” that a family law litigant

may file as “litigation” for purposes of the VLS, a family law litigant involved in a custody

dispute could quickly be declared “vexatious” for “adverse determinations” on requests for

visitation, support issues, or even ex parte motions for orders to travel with their minor children.

141. The U.S. Supreme Court has held that the Due Process Clause and the Taking

Clause protect a party’s fundamental rights (deprivation of custody rights, right to petition) that

may not be compromised by retroactive legislation. The Supreme Court has noted that a state

may have “sufficient justifications” in giving prospective application to a statute (such as the

Vexatious Litigant Statute) but that “may not suffice to warrant its retroactive application” under

the Due Process Clause. (Landgraf v. USI Film Products, 511 U.S. 244. 265-266, (199). The

Landgraf court explained that this is so because a retroactive effect is one that “impairs rights a

party possessed when he acted.” (supra, at 280). Defendants know or should have known this.83

142. By declaring various Class Member “vexatious” on the basis of their writs, appeals,

"finally determined adversely to the person" within the meaning of section 391, subdivision (b)(1). 82 Elsner v. Uveges, 34 Cal. 4th 915, 928 (2004). CCP §391-§391.7, by changing “the future legal consequences of past transactions,” so-called secondary retroactivity, a form of retroactivity, has engaged in improper conduct unless there is clear intent shown to give the statute retroactive effect.) (emphasis added). 83 Defendants may argue that the VLS’s prefiling order is not unconstitutional because it only purports to affect “future filings. However, the determination of “vexatiousness” is based on past conduct, such as the filing of writs, appeals, or petitions. At the time of those filings, the Class Members were acting well within their rights.


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or petition of custody judgments/orders, the Defendants violate the due process clauses (of the 5th

and 14th Amendments) by retroactively creating liability for Plaintiffs’ past conduct in filing

writs and motions and other pleadings. At the time the various Class Members filed their writs,

appeals, or petitions related to custody judgment/orders, they were acting legally and within his

rights to seek appellate review under the state constitution.84

143. Defendants’ actions, orders and rulings, taken under color of law individually and in

consort, deprive Plaintiffs of their rights, privileges or immunities secured to them by the

Constitution of the United States in violation of 42 U.S.C. §1983.

X. REQUEST FOR RELIEF

WHEREFORE, Plaintiffs pray that the Court order the following relief and remedies:

1). Issue a judicial declaration that California’s Vexatious Litigant Statute does not apply

to attorneys of vexatious litigants, by definition, and under any circumstance.

2). Issue a judicial declaration that California’s Vexatious Litigant Statute, on its face,

violates a parent’s rights under the Due Process Clause of the 14th Amendment.

3). Issue a judicial declaration that California’s Vexatious Litigant Statute, as applied to

parents in custody disputes in family law courts, violates a parent’s rights under the Due Process

Clause of the 14th Amendment.

4). Issue a judicial declaration that California’s Vexatious Litigant Statute, as applied to

parents in custody disputes in California family law courts, violates the Equal Protection Clause

of the 14th Amendment.

5). Issue a judicial declaration that California’s Vexatious Litigant Statute, on its face and

as applied to parents in custody disputes in California family law courts, is void for vagueness

under the 14th Amendment.

6. Issue a judicial declaration that California’s Vexatious Litigant Statute as applied to

parents in custody disputes is an improper ex post facto law.

7). Issue a judicial declaration that California’s Vexatious Litigant Statute, on its face and

as applied to parents in custody disputes, is an improper bill of attainder.

8). Issue a judicial declaration that the “vexatious litigant” orders issued by judicial

officers under California’s Vexatious Litigant Statute were made in excess of their jurisdiction.

9). Award Plaintiffs costs and expenses, including reasonable attorney’s fees under 42

U.S.C. §1988;

84 *See, Calif. Const. Section 11 of Article VI, which states that, except when a judgment of death has been


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10). Award such further and additional relief as is just and proper.

DEMAND FOR JURY TRIAL

In accordance with Fed. R. Div. P. 38(b), and Northern District Local Rule 3-

6(a), Plaintiffs hereby demand a jury trial on all issues triable by a jury.

Respectfully submitted,

________________________ Archibald Cunningham, Esq. Attorney for Plaintiffs Dated:

pronounced, the "courts of appeal have appellate jurisdiction when superior courts have original jurisdiction ...."

federal class action lawsuit against california supreme court chief justice cantil-sakauye and...

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