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For docket see H032619
Court of Appeal, Sixth District, California.
Jeffrey R. GOLIN, Elsie Y. Golin and Nancy K. Golin, Plaintiffs and Appellants,
v.
Clifford B. ALLENBY, et al., Defendants and Respondents.
No. H032619.
December 12, 2008.
Appeal from the Judgment of the Superior Court of California, County of Santa
Clara, Hon. J. Michael Byrne, Judge, Case No. 1-07-CV-082823
Respondents' Joint Brief
Scott D. Pinsky (SBN: 120095), Law Offices of Scott D. Pinsky, One Market Street,
Suite 3600, San Francisco, CA 94105, Telephone: (415) 296-2522, Facsimile: (415)
296-2525 & Gary M. Baum (SBN: 117200), City Attorney, City of Palo Alto, 250 Hamilton Avenue, Palo Alto, CA 94303, Telephone: (650) 329- 2171, Attorneys for Defendants/Respondents City of Palo Alto, Lori Krantzer, & City of Palo Alto Police Department.
Stephanie Wald (SBN: 75169), Deputy Attorney General, California Department of Justice, 81 Parker Avenue, San Francisco, CA 94118, Telephone: (415) 703- 5516 / Facsimile: (415) 703-5480, Attorneys for Defendants/Respondents Clifford B. Allenby,
Terri Delgadillo, H. Dean Stiles, & S. Kimberly Belshe.
Ann Miller Ravel, County Counsel (SBN: 62139), Neysa A. Fligor, Dep. Co. Counsel
(SBN: 215876), 70 West Hedding, East Wing, 9th Floor, San Jose, CA 95110-1770, Telephone: (408) 299-5900 / Facsimile: (408) 292-7240, Attorneys for Defendants/Respondents County of Santa Clara, Santa Clara Board of Supervisors, Jamie
Buckmaster, Mary Greenwood, Malorie M. Street, Jacqui Duong & Randy Hey.
Eric Gale (SBN: 172719), Bradley Curley Asiano et al., 1100 Larkspur Landing Cir.,
Ste. 200, Larkspur, CA 94939, Telephone: (415) 464-8888 / Facsimile: (415) 4648887, Attorneys for Defendant/Respondent San Andreas Regional Center, Inc.
Melissa D. Bickel (SBN: 209914), Matheny Sears Linker et al., 3638 American River
Drive, Mail: P.O. Box 13711, Sacramento, CA 95853-4711, Telephone: (916) 978-3434 /
Facsimile: (916) 978-3430, Attorneys for Defendants/Respondents Roselily and Anselmo Talla, dba Talla House & Talla Home Care.
Deborah Phillips (SBN: 164689), Sheuerman, Martini and Tabari, 1033 Willow Street,
San Jose CA 95125, Telephone: (408) 288-9700 / Facsimile: (408) 288- 9900, Attor-
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neys for Defendant/Respondent Stanford Hospital and Clinics.
*i TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PARTIES
TABLE OF AUTHORITIES ... iii
I. INTRODUCTION ... 3
II. ISSUE PRESENTED ... 6
III. STATEMENT OF APPEALABILITY ... 7
IV. STATEMENT OF THE CASE: RELEVANT FACTUAL & PROCEDURAL HISTORY ... 9
A. PROBATE COURT PROCEEDINGS ... 9
B. FEDERAL COURT PROCEEDINGS ... II
C. THE INSTANT ACTION ... 12
V. APPLICABLE STANDARD OF REVIEW ... 28
A. APPELLANTS HAVE THE BURDEN ... 28
B. WAIVER ... 28
C. STANDARD OF REVIEW ... 29
1. Substantial Evidence for Findings of Fact ... 29
2. Abuse of Discretion for Vexatious Litigant Determination ... 29
VI. LEGAL DISCUSSION ... 31
A. THE TRIAL COURT'S § 391 ORDER IS SUPPORTED BY SUBSTANTIAL EVIDENCE ... 31
1. The Golins' Action Constitutes Frivolous Relitigation of the Probate and Federal Cases Under C.C.P. §391(b)(2) ... 32
*ii
2. Appellants Have Incessantly Relitigated Numerous Issues And Knowingly Employed Frivolous and Harassing Tactics In Violation of C.C.P. §391(b)(3) ... 35
3. The Court's Finding Under C.C.P. §391 Is Entirely Consistent With Appellants'
Litigation Record ... 40
B. THE TRIAL COURT PROPERLY FOUND THAT THE OSTENSIBLE PRESENCE OF PLAINTIFF'S
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COUNSEL IS NO IMPEDIMENT TO A DETERMINATION UNDER C.C.P.§391 ... 42
C. RESPONDENTS WERE CLEARLY LIKELY TO PREVAIL AT TRIAL ... 49
D. NANCY GOLIN IS NOT A PROPER PARTY TO THIS ACTION IN ANY COURT AND HER APPEAL
SHOULD BE DISMISSED ... 50
VII. CONCLUSION ... 53
CERTIFICATE OF WORD COUNT ... 54
*iii TABLE OF AUTHORITIES
CASES
Andrisani v. Hoodack (1992) 9 Cal.App.4th 279 ... 7
Blank v. Kirwan (1985) 39 Cal.3d 311 ... 28, 30
Bravo v. Ismaj (2002) 89 Cal.App.4th 211 ... 29
Camerado Ins. Agency v. Superior Court (Stolz) (1993) 12 Cal.App.4th 838 ... 48
Denham v. Superior Court (Marsh & Kidder) (1970) 2 Cal.3d 557 ... 28, 30
Elsmore v. RBB, Inc. (1994) 25 Cal.App.4th 189 ... 29
Eggert v. Pacific States Saving & Loan Co. (1942) 20 Cal.2d 199 ... 51
Ferguson v. Keays (1971) 4 Cal.3d 649 ... 8
In re Alma B. (1994) 21 Cal.App.4th 1037 ... 51
In re L.Y.L. (2002) 101 Cal.App.4th 942 ... 29
In re Shieh (1993) 17 Cal.App.4th 1154 ... 46
In re William C. (1977) 70 Cal.App.3d 570 ... 29
*ivLopez v. State of California
(1996) 49 Cal.App.4th 1292 ... 30
Maria P. v. Riles (1987) 43 Cal.3d 1281 ... 28
Matter of Regan (Rev. Dept.2005) 4 Cal. State Bar Ct. Rptr. 844 ... 51
McColm v. Westwood Park Association (1998) 62 Cal.App.4th 1211 ... 7
Morton v. Wagner (2007) 156 Cal.App.4th 963 ... 29
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Muller v. Tanner (1969) 2 Cal.App.3d 438 ... 45
People ex rel. Lockyear v. Brar (2004) 115 Cal.App.4th 1315 ... 8
People v. Stanley (1995) 10 Cal.4th 764 ... 28
Say & Say v. Castellano (1994) 22 Cal.App.4th 88 ... 8
Tokerud v. Capital Bank Sacramento (1995) 38 Cal.App.4th 775 ... 30
Zimmerman v. Drexel Burnham Lambert, Inc. (1988) 205 Cal.App.3d 153 ... 8
Walker v. Superior Court (Residential Construction Enterprises) (1991) 53 Cal.3d
257 ... 30
*v STATUTES
California Code of Civil Procedure:
§391 ... passim
§391.3 ... 4
§391.4 ... 4
§391.7 ... 7
OTHER AUTHORITIES
Rutter, California Practice Guide: Civil Appeals & Writs §8:15 ... 28
Comment, The Vexations Litigant (1966) 54 Cal.L.Rev. 1769 ... 46
*3 I. INTRODUCTION
In this action, the trial court correctly found that Appellants Jeffrey R. Golin
and Elsie Y. Golin are vexatious litigants under Code of Civil Procedure §391 and
properly dismissed Appellants' action after they failed to post the bond imposed by
the trial court. This appeal seeks to question those rulings, yet Appellants have
failed to demonstrate any abuse of discretion by the trial court or lack of evidence supporting these rulings. Respondents [FN1] brought their §391 motion in the
instant Superior Court action only after enduring seven years of protracted litigation with Appellants in several state and federal courts on the same set of issues.
Each case has arisen out of circumstances and events relating to the Golins' daughter, Nancy Golin, a developmentally disabled adult now in the care of several of
the Respondents.
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FN1. This Respondents' Brief is submitted on behalf of all moving party defendants in the Superior Court action (Respondents here): City of Palo Alto; Lori
Krantzer, City of Palo Alto Police Department; Clifford B. Allenby, Director - Calif. Dept. of Developmental Services (retired); Terri Delgadillo, Director - Calif.
Dept. of Developmental Services; H. Dean Stiles, Office of Legal Affairs - Calif.
Dept. of Developmental Services (retired); S. Kimberly Belshe, Secretary - Calif.
Dept. of Health and Human Services; County of Santa Clara; Santa Clara Board of Supervisors; Jamie Buckmaster, Santa Clara County Adult Protective Services; Mary
Greenwood, Public Defender - Santa Clara County; Malorie M. Street, Deputy Public
Defender - Santa Clara County; Jacqui Duong - Office of County Counsel, Santa Clara
County; Randy Hey - Dep. District Attorney - Santa Clara County; San Andreas Regional Center, Inc.; Roselily Talla and Anselmo Talla, dba Talla House; Talla Home
Care; and Stanford Hospital and Clinics (sued herein as Stanford Hospital, Inc.)
The court determined that the Golins' litigation tactics were sufficiently extreme
and frivolous to meet the test of vexatiousness under §391, based on the number and
nature of pleadings submitted for decision, the pattern of *4 delaying practices,
and the totality of the circumstances in the case. In so doing, the Judge based his
decision on the voluminous record in this action (over 16 boxes of pleadings before
the first motion was ever heard), and also took, into account the numerous findings
of fact respecting the Golins made in prior federal and state court actions involving these same parties and issues.
A key aspect of the case that must be appreciated for full understanding is the
self-representation engaged in by the Golins throughout these actions, even where
(as here) attorneys negligently allow their names to be affixed to pleadings. The
evidence presented on the motion-which included uncontroverted showings of Jeffrey
Golin's forgery of numerous lawyer and other signatures on briefs and proofs of
service-constitutes a clear record of willful attorney ignorance in the face of
outrageous misconduct by Appellants, who have personally and exclusively handled
drafting, service and filing of documents in the trial court. The trial court
properly determined that these parties are a loose cannon running through the court
system and that no supervision by counsel has been exercised. This appeal raises no
substantive legal issues of any note; rather, Appellants simply argue that the
court has abused its discretion in placing Appellants under a bond requirement under §391.3 and thereafter dismissing the case under §391.4 when they failed to meet
this requirement. Appellants fail to meet their burden of demonstrating a "clear
case of abuse" and "miscarriage of justice" by Judge J. Michael Byrne, [FN2] and
this Court should decline the invitation to substitute its own *5 reading of the
facts for those of the trial court. The rulings below should be affirmed.
FN2. The trial court in this instance, Hon. J. Michael Byrne, is a retired Superior Court Judge who sits in this action by appointment of the Judicial Council
due to the rare circumstance in this action wherein literally every Superior Court
judge who hears civil matters in this County has been disqualified. See section II,
post, at page 8.
*6 II. ISSUE PRESENTED
Whether the trial court properly dismissed Appellants' action after they failed to
meet the requirement to post a bond imposed by the court based upon its finding
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that Appellants Jeffrey R. Golin and Elsie Y. Golin are vexatious litigants under
Code of Civil Procedure §391.
*7 III. STATEMENT OF APPEALABILITY
There are strict limitations on a vexatious litigant's right to appeal in this
State. Code Civil of Procedure §391.7 states that a party who is the subject of a
pre-filing of "vexatious litigant order" cannot file any litigation, including an
appeal or writ proceeding, in propria persona without first obtaining leave of the
presiding judge of the court where the litigation is proposed to be filed. Any
grant of permission may be conditioned on the vexatious litigant posting a specified bond. See Code of Civil Procedure §391.7. See McColm v. Westwood Park Association (1998) 62 Cal.App.4th 1211, 1216-17 (vexatious litigant statutes fully apply
to appeals).
The decision whether to allow the appeal is made on a case by case basis, taking
into account such factors as the nature of the action below and the lower court's
ruling, whether writ petition or appeal is the appropriate procedure for seeking
appellate court review, the litigant's claims of error, and whether the litigant
has demonstrated improper reasons for bringing the original litigation or for taking it to the appellate court. Absent permission from the presiding justice, and
the posting of any required bond, an in propria persona appeal by a vexatious litigant subject to a § 391.7 pre-filing order will be dismissed. See McColm, supra, 62
Cal.App.4th 1217-18.
Where an in propria persona plaintiff/appellant has been found to be a "vexatious
litigant" pursuant to §391(b) as in this case, a court may issue a pre-filing order
precluding him or her from filing any further in propria persona litigation-- including an appeal-without first obtaining leave of court. Code of Civil Procedure
§391.7 (a). A vexatious litigant's pending appeal will be dismissed if he or she
fails to comply with court's pre-filing order. See *8 Andrisani v. Hoodack (1992) 9
Cal.App. 4th 279, 281; McColm, supra, 62 Cal.App. 4th at 1218.
Appellate courts also have an inherent authority to dismiss an appeal that is
"frivolous or taken solely for a delay," and can also impose monetary sanctions in
connection with the dismissal. Ferguson v. Keays (1971) 4 Cal. 3d 649, 658; People
ex rel Lockyear v. Brar (2004) 115 Cal.App. 4th 1315, 1318; Zimmerman v. Drexel
Burnham Lambert, Inc. (1988) 205 Cal.App.3d 153, 161; and Say & Say v. Castellano
(1994) 22 Cal.App. 4th 88.
No court has granted leave to Appellants to file the instant appeal or to be relieved of the trial court's bond order. Although Appellants have filed this proceeding through the offices of counsel Beauvais, Judge Byrne found that Elsie Golin's "retention" of Mr. Beauvais on the motions pending before the trial court was
insufficient to protect her from being determined to be vexatious under §391. The
same finding should pertain in the Court of Appeal as well, since Appellants have
already been proved to have used attorneys as mere puppets.
For these reasons, the instant appeal is not well taken and should be dismissed.
*9 IV. STATEMENT OF THE CASE: RELEVANT FACTUAL & PROCEDURAL HISTORY
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This action, as argued in this brief, is the third action in which Appellants have
raised identical legal and factual issues related to Nancy Golin's status and related matters. Respondents were parties in these earlier proceedings and have already defeated Appellants' contentions. The following summary of the procedural and
factual history outlines the prior events in the instant action alone and does not
cover the preceding state and federal court actions. These earlier cases are discussed, however, in the argument portions of the brief.
A. THE PROBATE COURT PROCEEDINGS
In 2001 Jeffrey and Elsie Golin's daughter Nancy Golin, then in her parents' care,
disappeared and was reported missing by the Golins. She was found several hours
later but the episode triggered a medical examination of Nancy to determine if she
had suffered any harm and also led to an investigation of Nancy's living circumstances by various Respondents. After careful consideration of Nancy's living arrangements and having concluded the Golins were unable to care for their daughter,
DDS petitioned the Probate Court to establish a conservatorship for Nancy, an action Mr. and Ms. Golin strenuously opposed. The proceedings in the Probate Department were held over a two-year period, during the course of which Plaintiffs leveled ad hominim attacks against essentially every person and entity even remotely
involved in Nancy's case, including the assigned Superior Court Judge hearing the
case, the Court's Probate Department and its investigators, multiple governmental
agencies and staff members, various police departments, numerous medical providers
and rehabilitative caregivers. (See Statement of *10 Decision by Probate Court at
Clerk's Transcript [hereinafter referred to as "C.T."] Vol. 17, pgs. 4638- 4640.)
After a three-week trial before Probate Judge William F. Martin, the Court held
that grounds exist for the imposition of a conservatorship over Nancy Golin by DDS.
In specific, the Court found inter alia:
- Nancy lacks capacity to care for her own physical and financial needs and
therefore a limited conservatorship is justified (C.T. Vol. 17, pg. 4641, lines 1012);
- Jeffrey and Elsie Golin are "unable to provide for the best interests of their
daughter, Nancy Golin, because of their continuous conflicts with most medical and
other professionals" (C.T. Vol. 17, pg. 4650, lines 3-5);
- "[T]he history of conflict between the Golins also renders them unfit to serve
as Nancy Golin's conservator" (C.T. Vol. 17, pg. 4649, lines 6-22); and
- Based on numerous episodes in which Nancy suffered several life-threatening
burns, food poisoning, and innumerable disappearances while under her parents'
care, "there is clear and convincing evidence that the Golins' past history of neglect and abuse renders them unable and unfit to provide for the best interests of
Nancy Golin as her conservator" (C.T. Vol. 17. pg.4652, lines 12- 14).
Based thereon, the Court granted the Petition to place Nancy under the conservatorship care of DDS and Respondent SARC.
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In addition to these substantive findings, Judge Martin bothered to note in his
Statement of Decision that the Golins' conduct during the proceedings evidenced a
clear pattern of inappropriate behavior, including witness coaching, misleading the
court, evasiveness, late appearances, interrupting *11 proceedings, and other disruptive conduct. The Court stated: "The examples are too numerous to detail here
but show a clear pattern of self-absorption and an absence of insight into how
their actions negatively impact not only their own lives and that of their daughter
but are also disruptive to the work of others, professionals, and even to court
proceedings. (C.T. Vol. 17, pg. 4649, lines 5-16[emphasis added].) The Court added:
"The Golins are quick to blame others and loathe to accept any responsibility for
their daughter's problems." (C.T. Vol. 17, pg. 4649 lines 24-25.)
B. FEDERAL COURT PROCEEDINGS
Not content with the rulings handed down in the Probate Court, the Golins commenced their own civil action, in propria personae, in the United States District
Court in 2003. This action was styled a civil rights complaint under 42 U.S.C.
§1942 and related statutes and common law theories. In that action, which consisted
of 12 separately delineated claims, the Golins sought to assert claims on behalf of
Nancy as her "next friends and natural parents," and also claimed damages on their
own behalf for fraud, emotional distress, interference with First and Fourth Amendment rights, etc. The action was asserted against almost all of the Defendants
named in the Superior Court action, including the majority of Respondents in this
appeal.
On Defendants' motion, the District Court dismissed the Golins' action by order
dated April 6, 2004. (C.T. Vol. 17, pgs. 4671-4686.) In so doing, the Court made
note of the preceding trial in the Probate Court, and held:
- Mr. and Ms. Golin lack standing to bring claims on behalf of Nancy Golin
Vol. 17, pg. 4676, lines 19-20);
(C.T.
- The issue of who should properly have permanent custody of Nancy Golin was decided by the Superior Court in the Probate *12 proceedings in 2002-03, and thus the
federal action was an improper attempt to have the U.S. District Court review the
Probate Court's ruling, which was rendered after a full presentation of legal arguments and claims by Plaintiffs (C.T. Vol. 17, pg. 4678, line 21- pg.4679, line 15);
- The Golins were not denied due process by having their rights adjudicated in
the Probate Court, which has continuing jurisdiction over Nancy Golin's interests
(C.T. Vol. 17, pg. 4680, lines 5-19); and
- The Golins failed to establish facts sufficient to constitute a claim for malicious prosecution against Defendant (C.T. Vol. 17, pg. 4683, lines 7-14).
The Golins appealed unsuccessfully from the dismissal of their federal action,
then petitioned for certiorari to the U.S. Supreme Court and again failed.
C. THE INSTANT ACTION
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Undaunted, Appellants took up the mantle yet again in the instant action. This
case involves seventeen causes of action on behalf of the same three titular Plaintiffs as were present in the federal action. The kernel of Plaintiffs' 135-page
Verified Amended Complaint ("VAC") boils down to this: Respondents illegally
searched the Golins' home, unlawfully withdrew Nancy Golin from her parents' custody, and have since maltreated their daughter in violation of numerous statutory and
common law doctrines.
Plaintiffs' initiation of the action constituted an exercise in forum shopping, in
that they elected to file in Sacramento County Superior Court rather than Santa
Clara in order to avoid the original proper court that ruled against them in the
conservatorship action (C.T. Vol. 1, pg. 3). Respondents successfully moved to have
the case transferred to Santa Clara (C.T. Vol. 3, *13 pg. 776), where Appellants
have proceeded to file serial disqualification motions against every judge assigned
to the case, including Sacramento Superior Court Judge Breen who briefly sat in the
case by designation before he granted one of two disqualification motions brought
against him by Plaintiffs in September 2007. (See C.T. Vol. 11, pgs. 2785-2794;
Vol. 11, pgs. 2985-3028; Vol. 12, pgs. 3057-3070; Vol. 14, pgs. 3784-3906; Vol. 15,
pg. 4010; Vol. 16, pgs. 4483-4486; Vol. 16, pgs. 4491-4502; Vol. 18, pgs. 51075108; and Vol. 19, pgs. 5182-5183). These challenges continued the pattern set in
the Probate Court, where earlier the Golins unsuccessfully challenged Judges Thomas
Edwards and William F. Martin. (C.T. Vol. 17, pg. 4638, line: 25 - pg. 4639, line:
17). In addition, because Appellants sued a sitting judge (Superior Court Judge and
former County Counsel Jacqui Duong), the entire Santa Clara County bench recused
itself from the proceedings. As a result of the naming of Judge Duong as well as
Appellant's repeated, unnecessary challenges of each and every Judge who was appointed to this case, Respondents faced the situation where the Judicial Council
had been repeatedly forced to appoint a judicial officer to preside over the adjudication of these frivolous claims. This absurdity ended only when Judge Byrne
properly rejected the Golins' challenge to him and considered, then ruled on, the
subject §391 motion leading finally to dismissal of the case.
Prior to filing the §391 motion, Respondents filed numerous defense motions, most
of which were originally set for hearing in June 2007. Due to the incessant delaying tactics of Appellants-which have included the referenced disqualification motions, numerous last minute in-court continuance requests, shuffling of Appellants'
counsel (resulting in more continuance requests), ex parte applications by Appellants, and other tactical ploys-Appellants succeeded in delaying a ruling on the
defense motions for *14 over five months. They then filed new motions for reconsideration of the months-old rulings on venue and Appellants' request for guardianship
status as to Nancy Golin, which new matters continued to threaten to delay yet
again the determination on the above-described defense motions. (See C.T. Vol. 1,
pgs. 128-129; Vol. 1, pgs. 130-131; Vol. 1, pgs. 133-157; Vol. 1, pgs. 190-218; Vol
1, pgs. 228-229; Vol. 2, pgs. 436-446; Vol. 3, pgs. 734-735; Vol. 3, pgs. 753-760;
Vol. 4, pgs. 864- 886; Vol. 4, pgs. 899-958; Vol. 4, pgs. 996-1008; Vol.4, 10131014; Vol. 5, pgs. 1137-1151; Vol. 8, pgs. 2005-2011; Vol. 10, pgs. 2751-2759; Vol.
10, pgs. 2760-2782; Vol. 11, pgs. 2839-2858; Vol. 11, pgs. 2887-2966; Vol. 14, pgs.
3727-3729; Vol. 15, pgs. 4146-4160; Vol. 16, pgs. 4386-4394; Vol. 16, pgs. 44384439; Vol. 16, pgs. 4527-4528; Vol. 17, pgs. 4531-4582; Vol. 17, pgs. 4740-4811;
and Vol. 17, pg. 4812).
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This pattern of gamesmanship by Appellants was never-ending until at last Respondents were forced to file the vexatious litigant motion here at issue (C.T. Vol. 17,
pgs. 4592-4714). All Respondents joined in the motion, which was heard on November
20, 2007. (C.T. Vol. 17, pgs. 4715-4718, 4720-4724, 4726- 4727, 4731 -4734; Reporter's Transcript ["R.T.] Vol. VI). The trial court plainly recognized the pattern of
abuses by Appellants and granted the motion, determining that Jeffrey and Elsie Golin are vexatious, placing them on the pre-filing list maintained by the Judicial
Council, staying the action and imposing a $500.00 bond requirement on Appellants.
The Court set an OSC re dismissal, allowing the Golins time to procure the bond.
(C.T. Vol. 19, pgs. 5286-5288; R.T. Vol. VI, pgs. 199-200). The Court's reasoning
was clear:
"It's when you look at the papers and the amount of added material that's given,
the amount of added supplements that are given, the amount of times this has come
forward, the amount of delays that exist in this case, I think it has reached the
level of vexatiousness, an attempt to grind down the other side or to keep *15 them
at or going--or without being able to move forward and allowing something to be
moved forward and has created an unmeritoriousness to the motions themselves. And
based on that ground, I will grant--I will grant the motion at this time."
(R.T. Vol. VII, at pg. 199-200.)
When Appellants failed to comply with the bond requirement, the Court dismissed
the action. (C.T. Vol. 20, pgs. 5415-5420 and 5459-5464.) Appellants argued at the
OSC hearing that Nancy Golin's purported claims should not be affected by the vexatious litigant determination as to Jeffrey and Elsie Golin, and thus should survive
the ruling on the §391 motion and Appellants' failure to post bond. Respondents
countered that Nancy was not even a proper party to the action since, as a conserved individual, she can sue only through a conservator or guardian ad litem.
(R.T. Vol. VII, at pg. 227.) The Court agreed with Respondents that Nancy Golin's
guardianship circumstances and any claims that might arise thereunder were not
properly before the Court through the Golins' VAC, furthermore observing that Mr.
and Mrs. Golins' exploitation of their daughter's purported claims constituted one
of the very bases of the finding of vexatiousness as to them:
"THE COURT: ...
"It's a question of whether this lawsuit should be the vehicle to get--to make
those determinations or whether something should go back to involve probate court
and its determination of whether the guardian ad litem should be appointed in this
situation or something should be done in relation to the underlying conservatorship. I think plenty of remedies exist for that, but there's not authority to
bring it in this case.
"And the whole purpose of use of the vexatious litigant statute would be removed if we didn't dismiss the entire case, because the Golins could retain their
role in this case, which based on another *16 Court finding they have abused, so I
believe the case should be dismissed, and I'll sign an order dismissesing [sic] the
entire case."
(R.T. Vol. VII, pg. 227 [emphasis supplied].)
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The record before the Court on the §391 motion included the voluminous VAC as well
numerous unauthorized and improperly submitted, late-filed, and baseless pleadings
of all kinds in this action. As shown below, that record shows that Appellants:
- Initially filed this action outside of County of Santa Clara (site of their
earlier legal defeats), thereby forcing Respondents to travel to Sacramento County,
where they successfully moved to transfer to Santa Clara (C.T. Vol. 1, pgs. 3-123);
- Challenged as "biased" every judicial officer assigned to this case, resulting
in numerous delays, reassignments, cancelled hearings, etc. (See pages 10 and 11 of
this brief supra);
- Have continually relitigated settled issues, as reflected in the filing of duplicative motions on the issues of guardianship and venue, despite the fact that
these questions had already been ruled upon by the Court in this action several
times (C. T. Vol. 1, pgs. 128-129; Vol. 1, pgs. 133-157; Vol. 1, pgs. 190-218; Vol.
1, pgs. 228-229; Vol. 2, pgs. 436-446; Vol. 3, pgs. 651-719; Vol. 3, pgs. 720-733;
Vol. 3, pgs. 736-743; Vol. 3, pgs. 753-760; Vol. 4, pgs. 844- 849; Vol. 4, pgs.
864-886; Vol. 4, pgs. 898, 959-966; Vol. 4, pgs. 899-958; Vol. 4, pgs. 996-1008 and
1011-1012; Vol. 4, 1016-1061; Vol.5, pgs. 1137-1151; Vol. 8, pgs.2005-2011; Vol.
10, pgs.2502-2564; Vol. 11, pgs.2839-2858; Vol. 11, pgs. 2887-2966; Vol. 11, pgs.
2973-2984; Vol. 15, pgs. 4146-4160; Vol. 16., pgs. 4386-4394; Vol. 16, pgs. 44384439; Vol. 17, pgs. 4527-4528; Vol. 17, pgs. 4531-4582; Vol. 17, pgs. 4740-4811;
Vol. 19, pgs. 5162-5179);
- Repeatedly forged their attorneys' names on pleadings filed with the court
(C.T. Vol. 18 at pgs. 5073-5075 and Vol. 19, pg. 5192);
- Repeatedly forged the names of complete strangers on proofs of service filed
with the court (C.T. Vol. 19 at pgs. 5194-5195; R.T. Vol. VI, pgs. 135-139).;
*17 - Repeatedly filed late "amended" briefs on issues already addressed by them,
thereby forcing Defendants to choose between leaving these filings unopposed, filing their own late amended reply briefs, or moving for ex parte relief (C. T. Vol.
3, pgs. 651-719; Vol. 4, pgs. 844-849; Vol. 4, pgs. 899-958; Vol. 10, pgs. 24692483; Vol. 11, pgs. 2973-2984; Vol. 15, pgs. 4029-4142; Vol. 15, pgs. 4146-4160;
Vol. 16, pgs. 4419-4437; Vol. 16, pgs. 4447-4453; Vol. 16, pgs. 4477-4482; Vol. 17,
pgs. 4583-4586; Vol. 19, pgs. 5153-5159; Vol. 19, pgs. 5162-5179);
- Repeatedly missed filing deadlines, then requested the Court's indulgence in
delaying hearings to enable Appellants to file further late papers (C. T. CITES set
forth infra); and
- Changed and/or replaced Elsie Golin's lawyers on several occasions, resulting
in delays when lawyers requested continuances or were unavailable; Mr. Golin also
served as his own counsel, in propria persona, and frequently appeared at hearings
unprepared and requested continuances (C. T. CITES set forth infra).
Among the pleadings filed by Appellants in the action which supported the trial
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court's finding of frivolousness and vexatiousness under §391(b)(3) are the following:
1. Complaint for Damages and Injunctive Relief filed in Sacramento Superior Court
(C.T. Vol. 1, pg. 3-123);
2. Application and Order for Appointment Guardian Ad Litem (C.T. Vol. l, pgs. 128129);
3. Declaration in Support of Request for Extension of Time to Serve Defendants
(C.T. Vol. 1, pgs. 130-131);
4. Ex Parte Application for Emergency Preliminary Injunction, which was denied
(C.T. Vol. 1, pgs. 133-157);
*18 5. Additional Ex Parte Application and Order for Appointment of Guardian Ad
Litem (See C.T. Vol. 1, pgs. 190-218)
6. Additional Application and Order for Appointment of Guardian Ad Litem (C.T.
Vol. 1, pgs. 228-229)
7. Verified Amended Complaint for Damages and Injunctive Relief (C.T. Vol. 1, pgs.
230-368);
8. Notice of Motion and Motion to Request Grant of Powers to Guardian Ad Litem
(C.T. Vol. 2, pgs. 436-446);
9. Plaintiffs' Opposition to Defendant's Motion for Change of Venue and Supporting
Documents (C.T. Vol. 2, pgs. 447-508);
10. Joint Amended Memorandum of Points & Authorities in Support Plaintiffs' Motion
to Reconsider Change of Venue and Motion to Retain Venue (C.T. Vol. 3, pgs. 651719);
11. Affidavit of Plaintiff of Jeffrey Golin in Support of Counter Motion to Retain
Venue (C.T. Vol. 3, pgs. 720-733);
12. Substitution of Attorney (See C.T. Vol. 3, pgs. 734-735);
13. Notice of a Motion to Reconsider; to Vacate Order Changing Venue and Countermotion to Retain Venue (C.T. Vol. 3, pgs. 736-743);
14. Declaration of John Lehman in Support of Plaintiffs' Motion to Grant Powers to
Guardian Ad Litem (C.T. Vol. 3, pgs. 753-760);
15. Amended Pleading Citing Supplemental Authorities in Support of Motion to Reconsider Change of Venue and Countermotion to Retain Venue (C.T. Vol. 4, pgs. 844849);
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*19 16. Plaintiffs' Application for Ex Parte Motion for Order Shortening Time for
Service of Notice and Hearing of Ex Parte Application for Ten Day Extension of Time
to File Writ of Mandate and Stay, Statement of Authority to Request, Declaration of
Counsel Gerard Wallace, Plaintiff Jeffrey Golin in Support of Motion, Proof of Service by Fax (C.T. Vol. 4, pgs. 864-886);
17. Plaintiff Jeffrey Golin's Countermotion for Sanctions, Joinder of Elsie Golin
and Nancy Golin (C.T. Vol. 4, pgs. 899-958);
18. Order Determining Disposition of Ex Parte Application (C.T. Vol. 4, pgs. 898,
959-966): Respondents were forced to apply ex parte for an Order Staying the Appointment of Plaintiff Elsie Golin as Nancy Golin's Guardian Ad Litem after the Golins' unnoticed ex parte resulted in Elsie Golin's appointment; the Court ruled in
Respondents' favor that Elsie's appointment as guardian ad litem should be vacated
as harmful to the ward and her interests;
19. Elaine Renoire's Letter to the Supreme Court Regarding Petition for Review
(C.T. Vol. 4, pgs. 973-976);
20. Plaintiff Jeffrey Golin's Declaration in Response to Order to Show Cause
(C.T. Vol. 4, pgs. 981-986);
21. Petitioner Elsie Golin's Points & Authorities in Support of Application for
Appointment Guardian Ad Litem with additional application (C.T. Vol. 4, pgs. 9961008 and pgs. 1011-1012);
22. Association of Counsel (C.T. Vol. 4, pgs. 1013-1014);
23. Elsie Golin's
for Order Vacating
Guardian Ad Litem;
(C.T. Vol. 4, pgs.
Opposition to San Andreas Regional Center's Ex Parte Application
the Appointment of Plaintiff Elsie Golin *20 as Nancy Golin's
Memorandum of Points & Authorities; and Its Supporting Papers
1016-1061);
24. Petitioner Elsie Golin's Memorandum of Points & Authorities in Support of Application for Appointment of Guardian Ad Litem for Nancy Golin and Noticed Motion
(C.T. Vol. 5, pgs. 1137-1151);
25. Re-Notice of Motion by Petitioner Elsie Y. Golin for Appointment of Guardian
Ad Litem for Nancy Golin (C.T. Vol. 8, pgs. 2005-2011);
26. Plaintiff Jeffrey Golin's Brief in Support of Opposition to Defendant's Request for Judicial Notice (C.T. Vol 9, pgs. 2452-2468);
27. Memorandum of Additional Points & Authorities of Plaintiff Jeffrey Golin in
Opposition to Demurrers by County of Santa Clara and San Andreas Regional Center
(C.T. Vol. 10, pgs. 2469-2483);
28. Declaration of Plaintiff Jeffrey Golin and Joinder with Elsie Golin's Memorandum of Opposition to Demurrer by County of Santa Clara and San Andreas Regional
Center (C.T. Vol. 10, pgs. 2484-2485);
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29. Plaintiffs Nancy Golin's and Elsie Golin's Opposition to County Defendant's
Motion to Strike Punitive Damages Claims (C.T. Vol. 10, pgs. 2490- 2492);
30. Plaintiffs Nancy Golin's and Elsie Golin's Opposition to County Defendant's
Demurrer to Plaintiffs' Complaint (C.T. Vol. 10, pgs. 2493-2501);
31. Plaintiff Jeffrey Golin's Joinder with Elsie Golin in Reply to SARC's Opposition to Appointment of Guardian Ad Litem Per Nancy Golin and Request for Judicial
Notice of Supreme Court Petition (C.T. Vol. 10, pgs. 2502-2564);
*21 32. Plaintiff Jeffrey Golin's Brief in Support of Opposition to Defendant's
Request for Judicial Notice (C.T. Vol. 10, pgs. 2569-2585);
33. Petitioner Elsie Golin's Objection to Evidence Submitted by Defendant San Andreas Regional Center in Support of Opposition to Motion for Appointment of Guardian Ad Litem (C.T. Vol 10, pgs. 2586-2588);
34. Petitioner Elsie Y. Golin's Reply in Support of Application for Appointment of
Guardian Ad Litem (C.T. Vol 10, pgs. 2589-2592);
35. Joinder, Memorandum and Declaration of Plaintiff Jeffrey Golin in Opposition
to Defendants' Special Motion to Strike (C.T. Vol. 10, pgs. 2597- 2618);
36. Plaintiff Elsie Golin's Opposition to Defendant San Andreas Regional Center's
Motion to Strike (C.T. Vol. 10, pgs. 2624-2628);
37. Plaintiff Elsie Golin's Opposition to Defendant San Andreas Regional Center's
Demurrer (C.T. Vol. 10, pgs. 2632-2639);
38. Plaintiff Elsie Golin's Opposition to Defendant San Andreas Regional Center's
Demurrer (C.T. Vol. 10, pgs. 2640-2647);
39. Plaintiff Elsie Golin's Opposition to Defendants' Roselily Talla and Anselmo
Talla dba Talla House's Motion for Judgment on the Pleadings (C.T. Vol. 10, pgs.
2648-2653);
40. Declaration of Laura Shapiro, Esq. In Support of Motion to Withdraw as Counsel
of Record in addition to Notice of and Motion to Be Relieved as Counsel (C.T. Vol.
10, pgs. 2751-2759);
41. Plaintiff Jeffrey Golin's Declaration in Support of Ex Parte Motion for Temporary Stay in addition to Plaintiff Jeffrey Golin's Declaration *22 in Support of Ex
Parte Motion for Temporary Stay and Ex Parte Motion for Stay and Supporting Papers
(C.T. Vol. 10, pgs. 2760-2782);
42. Challenge for Cause by Plaintiffs (C.T. Vol. 11, pgs. 2785-2794);
43. Supplemental Declaration in Support of attorney's Motion to be Relieved as
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Counsel and Amended Proof of Service of Notice of and Motion to Be Relieved as
Counsel of Record (C.T. Vol. 11, pgs. 2795-2798);
44. Plaintiffs Motion for Change of Venue (C.T. Vol. 11, pgs. 2839-2858);
45. Ex Parte Application to Reconsider and Modify Prior Appointment of Plaintiffs'
Guardian Ad Litem of Elsie Golin or John Lehman and Memorandum in Support (C.T.
Vol. 11, pgs. 2887-2966);
46. Amended Hearing Brief in Support of Application to Reconsider and Modify Previous Application of Elsie Y. Golin or John Lehman for Guardian Ad Litem of Nancy
Golin (C.T. Vol. 11, pgs. 2973-2984);
47. Plaintiffs Verified Challenge for Cause (C.T. Vol. 11, pgs. 2985-3028);
48. Dismissal of Counsel Lara Shapiro (C.T. Vol. 11, pg. 3048);
49. Plaintiff's Request for Correction Clerical Error in Hearing (C.T. Vol. 11,
pg. 3051);
50. Plaintiff's Request for Adherence to Proper Procedure (C.T. Vol. 12, pg. 30573070);
51. Plaintiff Jeffrey Golin's Brief in Opposition to Defendant Stanford Hospital's
Request for Judicial Notice (C.T. Vol. 14, pgs. 3694-3711);
*23 52. Declaration of Plaintiff Jeffrey Golin in Support of Motion of Lara
Shapiro to Withdraw as Associate Counsel to Elsie Golin and Ex Parte Application
for Court Order Dismissing Her (C.T. Vol. 14, pgs. 3712-3726);
53. Plaintiff's Request for Continuance (C.T. Vol. 14, pgs. 3727-3729);
54. Plaintiff's Challenge for Cause (C.T. Vol. 14, pgs. 3784-3906);
55. Peremptory Challenge (C.T. Vol. 15, pg. 4010);
56. Amended Memorandum of Points & Authorities of Plaintiff Jeffrey Golin in Opposition to Demurrers of County (C.T. Vol. 15, pgs. 4029-4142);
57. Amended Motion for Change of Venue along with Supporting Documents (C.T. Vol.
15, pgs. 4146-4160);
58. Letter to Judge Breen from Jeffrey Golin Received August 29, 2007 (C.T. Vol.
16, pgs. 4362-4365);
59. Motion for Reconsideration of Change of Venue (C.T. Vol. 16, pgs. 4386- 4394);
60. Memorandum of Points & Authorities of Plaintiff Jeffrey Golin in Opposition to
Demurrers of Stanford Hospital and Clinics, Inc. (C.T. Vol. 16, pgs. 4399-4418);
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61. Second Amended Memorandum of Points & Authorities of Plaintiff Jeffrey Golin
in Opposition of County Defendants (C.T. Vol. 16, pgs. 4419-4437);
62. Declaration of Plaintiff Jeffrey Golin in Support of Motion to Reconsider
Change of Venue (C.T. Vol. 16, pgs. 4438-4439);
*24 63. Supplemental Memorandum of Points & Authorities of Plaintiff Jeffrey Golin
in Opposition to Demurrers of Stanford Hospital and Clinics, Inc. (C.T. Vol. 16,
pgs. 4447-4453);
64. Declaration of Plaintiff Elsie Golin and Nancy Golin in Joinder with Jeffrey
Golin's Memoranda of Opposition to Demurrer by Stanford Hospital and Clinics, Inc.
(C.T. Vol. 16, pgs. 4473-4476);
65. Second Supplemental Memorandum of Points & Authorities of Plaintiff Jeffrey
Golin in Opposition to Motion to Strike of Stanford Hospital and Clinics, Inc.
(C.T. Vol. 16, pgs. 4477-4482);
66. Challenge for Cause (C.T. Vol. 16, pgs. 4483-4486);
67. Notice of Disqualification and Verified Statement of Jeffrey Golin in Support
with Points & Authorities (C.T. Vol. 16, pgs. 4491-4502);
68. Renotice of Motion to Reconsider Appointment for Guardian Ad Litem (C.T. Vol.
16, pgs. 4527-4528);
69. Plaintiff's Motion for Change of Venue on Grounds of Changed Circumstances and
Forum Non-Conveniens (C.T. Vol. 17, pgs. 4531-4582);
70. Supplemental Memorandum of Points & Authorities in Opposition to SARC's Special Motion to Strike (C.T. Vol. 17, pgs. 4583-4586);
71. Motion to Set Aside Void Orders of Removal of Elsie Golin as Guardian Ad Litem
(C.T. Vol. 17, pgs. 4740-4811);
72. Plaintiff's Ex Parte Application for Leave to Employ Personal Recording Device
in Courtroom (C.T. Vol. 17, pg. 4812);
73. Notice of Filing of Substitute Brief Due to Clerical Errors in Original
Vol. 18, pgs. 4825-4857);
(C.T.
*25 74. Plaintiffs' Opposition to City of Palo Alto's Motion for Vexatious Litigant Determination with Memorandum of Points & Authorities (C.T. Vol. 18, pgs.
5039-5070);
75. Declaration of Gerrard W. Wallace in Opposition to Palo Alto's Motion for Vexatious Litigant Determination (C.T. Vol. 18, pgs. 5073-5075);
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76. Declaration of Counsel David J. Beauvais in Opposition to Palo Alto's Motion
for Vexatious Litigant Determination (C.T. Vol. 18, pgs. 5078-5080);
77. Declaration of Plaintiff Jeffrey Golin in Opposition to Palo Alto's Motion for
Vexatious Litigant Determination (C.T. Vol. 18, pgs. 5083-5096);
78. Plaintiffs' Memorandum of Points & Authorities in Opposition to San Andreas
Regional Center's Motion to Strike Entire Complaint as "Sham Pleading" (C.T. Vol.
18, pgs. 5099-5104);
79. Peremptory Challenge (C.T. Vol. 18, pgs. 5107-5108);
80. Plaintiffs' Reply to Attorney General's Opposition to Renotice of Motion to
Reconsider Guardian Ad Litem Appointment for Nancy Golin with Memorandum of Points
& Authorities (C.T. Vol. 19, pgs. 5115-5146);
81. Notice of Additional Authority in Support of Opposition to Determination of
Vexatious Litigant (C.T. Vol. 19, pgs. 5153-5159)
82. Amended Joint Memorandum of Points & Authorities in Support of Elsie Golin's
Motion to Set Aside Void Orders of Removal of Guardian Ad Litem (C.T. Vol. 19, pgs.
5162-5179);
83. Declaration of Jeffrey Golin in Support of Challenge for Cause (C.T. Vol. 19,
pgs. 5182-5183);
*26 84. Appellant's Notice Designating Record on Appeal (C.T. Vol. 20, pgs. 55035507); and
85. Appellant's Notice Designating Record on Appeal - Amended (C.T. Vol. 20, pgs.
5508-5512).
From this record, the Court can adduce that Appellants filed over eighty pleadings
even before the first hearing on the merits of the VAC. Of the foregoing, several
matters were ex parte applications filed by Appellants and heard by the Court on an
expedited basis without notice to, or appearances by, Respondents. These included:
- Ex Parte Application for Emergency Preliminary Injunction (C.T. Vol. l, pgs.
133-157;
- Ex Parte Application for Appointment of Guardian Ad Litem (C.T. Vol. l, pgs.
190-218; and
- Ex Parte Application for Appointment of Guardian Ad Litem (C.T. Vol. 1, pgs.
228-229).
Appellants' failure to notice Respondents was not inadvertent. Responding to accusations of failure to give Respondents notice of these multiple hearings on the Golins' various ex parte applications, Mr. Golin argued:
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"Mr. Gale continually represents that we had a legal duty to notify them about
these ex parte applications for guardian ad litem, yet he has never once been able
to cite a single authority, and I am sure he doesn't have one--for the proposition
that a plaintiff has to notify a defendant in the lawsuit about the application of
a guardian ad litem so that they could possibly veto it. It is, quite frankly, none
of their business who we appoint as guardian ad litem. Why would they choose a
guardian ad litem who is a worse guardian--I mean, a better guardian? I mean, they
have a fundamental, inherent conflict of interest in this."
*27 (R.T. Vol. VI, at pg. 182 (emphasis added).) Even Appellant Elsie Golin's
counsel so argued at the §391 hearing:
"We don't have duty to provide them with notice of a[n ex parte] hearing on a
guardian ad litem for our side of the case."
(R.T. Vol. VI, at pg. 191 (emphasis added).)
Following dismissal in the trial court, Appellants filed the instant appeal, this
time all doing so under the banner of attorney Beauvais.
*28 V. APPLICABLE STANDARD OF REVIEW
A. APPELLANTS HAVE THE BURDEN
The most fundamental rule of appellate review is that an appealed judgment or order is presumed to be correct. The burden is on the party complaining to establish
an abuse of discretion. Blank v. Kirwan (1985) 39 Cal. 3d 311, 331. "All intendments and presumptions are indulged to support it on matters as to which the record
is silent, and error must be affirmatively shown." See Denham v. Superior Court
(Marsh & Kidder) (1970) 2 Cal. 3d 557, 564, as cited in Rutter, California Practice
Guide: Civil Appeals & Writs §8:15.
Appellants have the burden of overcoming the presumption of correctness and, for
this purpose, must provide an adequate appellate record demonstrating the alleged
error. Failure to provide an adequate record on an issue requires that the issue be
resolved against appellant. See Maria P. v. Riles (1987) 43 Cal. 3d 1281, 1295.
B. WAIVER
Appellants' burden also includes the obligation to present argument and legal authority on each point raised. When Appellants assert a point but fail to support it
with reasoned argument and citations to authority, the court may treat it as waived
and pass it without consideration. See People v. Stanley (1995) 10 Cal.4th 764,
793. As a result, any points raised by Appellants, but not supported by citations
or argument must be considered waived and dismissed accordingly. Among these are
the issues of appealability, standard of review, and appropriateness of the level
of security bond ordered by the trial court ($500,000.00), which matters are omitted from Appellants' brief.
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*29 C. STANDARD OF REVIEW
1. Substantial Evidence for Findings of Fact
As to the trial court's factual findings, the decision is upheld if it is supported by substantial evidence. See Bravo v. Ismaj (2002) 89 Cal.App.4th 211, 219. Under that standard, it is the exclusive function of the trier of fact to judge the
credibility of witnesses, resolve conflicts in the testimony, weigh the evidence
and draw factual inferences. In re William C. (1977) 70 Cal.App. 3d 570, 579. Where
the evidence conflicts or is capable of conflicting inferences, the appellate court
will not substitute its deductions for those of the fact finder. See Elsmore v.
RBB, Inc. (1994) 25 Cal.App. 4th 189, 195.
All reasonable inferences in support of the trier of fact's factual findings must
be drawn by the appellate court, which must consider the record most favorably to
the trial court's decision, and affirm the decision if supported by substantial evidence even if other evidence supports a contrary conclusion. In re L.Y.L. (2002)
101 Cal.App.4th 942, 947. What constitutes "repeatedly" and "unmeritorious" in the
context of a party determined "vexatious" under Code of Civil Procedure §391(b)(3)
(i.e., a showing that a litigant "repeatedly files unmeritorious motions, pleadings," etc.), in any given case "is left to the sound discretion of the trial
court." Morton v. Wagner (2007) 156 Cal.App.4th 963, 971.
2. Abuse of Discretion for Vexatious Litigant Determination
Questions of whether a person is a "vexatious litigant" who must obtain court permission before filing new litigation is subject to an abuse of discretion standard.
See Code. of Civil Procedure §391.7, Bravo v. Ismaj (2002) 89 Cal.App.4th 211, 219.
Morton, supra, 156 Cal.App.4th at 969. *30 Under the "abuse of discretion" standard
of review, appellate courts will disturb discretionary trial court rulings only upon a showing of a "clear case of abuse" and a "miscarriage of justice." See Blank
v. Kirwan (1985) 39 Cal. 3d 311, 331; Elsmore v. RBB, Inc. (1994) 25 Cal.App.4th
189, 195 (where evidence conflicts or is capable of conflicting inferences, appellate court will not substitute its deductions for those of fact finder); Lopez v.
State of California (1996) 49 Cal.App.4th 1292, 1295; Denham v. Superior Court
(Marsh & Kidder) (1970) 2 Cal. 3d 557, 566.
"Because the trial court is best situated to receive evidence and hold hearings on
the question of whether a litigant is vexatious, on appeal, we are required to presume the order declaring a litigant vexatious is correct and to imply findings necessary to support that designation." Morton, supra, 156 Cal.App.4th at 969; accord,
Bravo v. Ismaj, supra, 99 Cal.App. 4th 1519; Tokerud v. Capital Bank Sacramento
(1995) 38 Cal.App. 4th 775, 783. The "abuse of discretion" standard is not met
simply by arguing a different ruling would have been "better." Discretion is
"abused" only when, in its exercise, the trial court "exceeds the bounds of reason,
all of the circumstances before it being considered." Denham, supra, 2 Cal. 3d 566
(internal quotes and citation omitted); Walker v. Superior Court (Residential Construction Enterprises) (1991) 53 Cal. 3d 257, 272.
*31 VI. LEGAL DISCUSSION
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A. THE TRIAL COURT'S §391 ORDER IS SUPPORTED BY SUBSTANTIAL EVIDENCE
A plaintiff who litigates a claim in propria persona may be determined "vexatious" for purposes of Code of Civil Procedure §391(b)(3) where a court finds that,
"[i]n any litigation ... [he] repeatedly files unmeritorious motions, pleadings, or
other papers, conducts unnecessary discovery, or engages in other tactics that are
frivolous or solely intended to cause unnecessary delay." Where a party has been
shown to be a vexatious litigant and the court finds "that there is not a reasonable probability that he will prevail in the litigation against the moving defendant," the court may impose a security requirement on the individual before allowing
a pending action to proceed, may dismiss the cause if security is not furnished,
and may order the party's name added to the Judicial Council's statewide list of
vexatious litigants. Code of Civil Procedure §§391.1, 391.3, 391.4, and 391.7.
A party also can be deemed vexatious in circumstances where.
"[a]fter a litigation has been finally determined against the person, repeatedly
relitigates or attempts to relitigate, in propria persona, either (I) the validity
of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or
any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally
determined."
Code of Civil Procedure §§391(b)(2) (emphasis supplied).
The trial court found Elsie Golin and Jeffrey Golin vexatious litigants under the
test laid out in the statute, after full briefing and a lengthy hearing. *32 It
then imposed a $500,000 bond requirement upon them, and dismissed their case when
they failed to post the required security. Appellants have offered nothing in their
opening brief to suggest that the court's rulings were not entirely sound, well
within its discretion, and amply supported by substantial evidence.
1. The Golins' Action Constitutes Frivolous Relitigation of the Probate and Federal Cases Under C.C.P. §391(b)(2)
Appellants' characterization of events notwithstanding, this case constitutes the
third time the Golins have sought adjudication of their essential claims arising
out of the events through which they lost any possible de facto custody of their
daughter. In the state Probate Court proceedings, initiated in 2001, the Probate
Court was called upon to determine who should properly exercise legal responsibility for Nancy Golin. The Golins pressed the court for an order granting them legal
custody. In their argument, they attempted to prove Nancy Golins's mistreatment at
the hands of Appellants DDS and SARC; violations of law committed against them and
Nancy by the City of Palo Alto and Stanford Hospital, and their own capacity to
safely and successfully care for their daughter. They also attempted to counter the
evidence presented by DDS of their neglect and mistreatment of Nancy Golin, their
financial and personal unsuitability to serve as her conservator, their inability
to cooperate with medical and legal professionals involved in Nancy's care, etc.
See generally Probate Court order (C.T. Vol. 17, pgs. 4638-4655).
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The court was wholly unpersuaded by the Golins and rejected each and every argument and assertion they made, ruling that DDS would serve as her permanent conservator. The Court's's findings included the excoriation of the Golins set forth in
the factual summary section above, a recitation so *33 devastating that it cannot
be reasonably asserted that the issue before the Probate Court was anything near a
close call.
The Court's ruling was a final one. And while conservatorship orders are obviously
open to modification in proper circumstances, here Judge Martin imposed numerous
and severe conditions on the Appellants should they ever see fit to apply to the
Probate Court for modification of its order. Those conditions included adequate
showings of dramatic improvement in the Golins' interpersonal, penal, financial,
marital circumstances. (C.T. Vol. 17, pgs. 4652-4654). There is nothing in the record to indicate that the Golins have ever attempted to obtain modification of Judge
Martin's order or have ever sought to establish for any court the factors delineated therein.
Instead, obviously thwarted by the Probate Court, Appellants took their ball to
the federal courthouse in October 2003 and (again acting in propria persona) filed
their next action-a confusing 69-page complaint that asserted twelve claims under
42 U.S.C. §1983 and common law theories. The counts all arose out of Nancy Golin's
custody and care and included: conspiracy by the defendants to deprive the Golins
of the company of their daughter Nancy, negligent care of and physical injury to
Nancy, infliction of emotional distress, wrongful imprisonment, fraud, slander, and
various constitutional violations arising out of Nancy's being taken into custody.
Some of the claims were asserted on behalf of Nancy Golin by her parents; others
were asserted by Mr. and Mrs. Golin in their own rights.
Defendants in the action filed three motions to dismiss. The Golins filed six opposing briefs. (C.T. Vol. 17, pg. 4675) As noted in the factual section, ante, the
U.S. District Court dismissed the entire action, finding that: Mr. and Ms. Golin
lacked standing to bring claims on behalf of Nancy Golin; *34 the issue of permanent custody of Nancy Golin was already correctly decided in the Probate Court; the
Golins' due process rights had not been violated; and no factual basis exists for
the Golins' malicious prosecution claims (C.T. Vol. 17, pg. 4683, lines 7-14).
In bringing the instant action in the face of the foregoing history of the case,
Appellants plainly were treading well-worn territory. Their subject Superior Court
action sought to relitigate the claims just decided against them by Judge Alsup.
Again, they attempted to assert claims on behalf of Nancy Golin. Again they sought
to revisit the guardian appointment issue. Again they asserted violations of their
legal and constitutional rights. Again they claimed mistreatment of Nancy Golin.
Again they claimed their own emotional distress. Again they sought damages for malicious prosecution and other imagined torts.
Appellants attempt to mislead the Court by mischaracterising the prior probate and
federal court proceedings in an effort to distinguish the issues raised and decided
there from those raised in the instant Superior Court action. At the November 20,
2008 hearing, struggling to distinguish the Probate Court proceedings from the instant case, Mr. Beauvais argued:
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"For example, we allege in this complaint that the defendants abducted Nancy
from Stanford Hospital and kept her for 11 months without any judicial process
whatsoever, a clear violation of her rights under the Fourth Amendment and a clear
violation of her family's rights under the Fourteenth Amendment and in total derogation of California statutory law which requires that before a person can be kept
against their will, there must be a judicial process. That's fundamental law, fundamental constitutional bedrock statutory law.
*35 "Those allegations or circumstances were not part of [Probate Court] Judge
Martin's rulings."
(RT. Vol. 6, at pg. 153) But these issues were considered by Judge Martin, who reviewed the full history of Nancy Golin's care and custody from the 1980's to the
date of his order. (C.T. Vol. 17, pgs. 4651-4652). The Probate Court would certainly have hesitated before ordering Nancy into the custody of Respondents DDS and
SARC had they unlawfully "abducted" her as alleged by the Golins and their counsel.
Appellants' efforts to distinguish the federal action are equally suspect. The Golins brought that case for the same reasons they filed their state action in Sacramento: to obtain custody over Nancy and to win damages for perceived slights inflicted by Respondents. The suggestion that there is anything new in this action,
some fact, argument, theory or claim that some court somewhere has not already reviewed, considered and rejected, is pure wishful thinking at best, delusion at
worst, on the part of Appellants. Judge Byrne's order under §391 had a more than
adequate factual and legal basis and should be affirmed.
2. Appellants Have Incessantly Relitigated Numerous Issues And Knowingly Employed
Frivolous and Harassing Tactics In Violation of C.C.P. §391(b)(3)
Even if this Court were to accept Appellants' questionable assertion that the instant action is not entirely made up of a relitigation of every issue raised in
prior proceedings, the trial court was nevertheless justified in making a finding
of vexatiousness as to the Golins and to establish a bond requirement and dismiss
when this went unmet. Appellants contend that their relitigation of sub-issues such
as venue, guardianship, or judicial bias do not suffice as a *36 basis for a finding of vexatiousness. (AOB at pgs. 23-24.) They contend that rulings adverse to
them were without prejudice, void or otherwise voidable, hence entitling them to
apparently limitless revisitation. The Golins are incorrect in their interpretation
of the type of conduct that must be shown to warrant a finding under §391. Under
the very language of the Code quoted above, merely relitigating a particular factual or legal issue-such as venue, standing, guardianship, etc.-can be a sufficient
basis for a court's finding under §391(b)(3).
In this case, we see that Appellants relitigated the venue question-which the Sacramento Court decided adverse to them-no less than eight additional times (C.T.
Vol. 2, pgs. 447-508; C.T. Vol. 3, pgs. 651-719; C.T. Vol. 3, pgs. 720- 733; C.T.
Vol. 3, pgs. 736-743; Vol. 11, pgs. 2839-2858; Vol. 15, pgs. 4146- 4160; Vol. 16,
pgs. 4386-4394; Vol. 17, pgs. 4531-4582). Their modus operandi included oppositions, multiple motions for reconsideration, counter-motions, amended motions, and
numerous duplicative motions.
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Appellants also continue to relitigate the issue of Elsie Golin's fitness to serve
as Nancy's guardian, and related issues-which the Probate Court decided adverse to
them-no less than ten additional times (C.T. Vol. 1, pgs. 128-129; C.T. Vol. 1,
pgs. 133-157; C.T. Vol. 1, pgs. 190-218; C.T. Vol. 1, pgs. 228- 229; Vol. 4, pgs.
898, 959-966; Vol. 4, pgs. 996-1008 and 1011-1012; Vol.4, pgs. 1016-1061; Vol.5
pgs. 1137-1151; Vol. 8, pgs. 2005-2011; Vol. 10, pgs. 2502-2564; Vol. 11, pgs.
2887-2966; Vol. 11, pgs. 2973-2984; Vol. 16, pgs. 4527-4528; and Vol. 17, pgs.
4740-4811). As discussed above, their preferred approach on this question is the ex
parte hearing with no notice to Respondents. (See discussion, ante, at section
III.) As Judge Byrne *37 correctly concluded, this issue is not properly before the
civil division of the Superior Court and Nancy is not properly a party to the action, insofar as her conservator has not authorized her assertion of claims. Appellants refused to accept the Probate Court's determination that they are wholly unsuitable as guardians for Nancy for a myriad of reasons. They raised the issue
again in the federal court, which refused to revisit the Probate Court's determination and sent Appellants home (with stops at the Ninth Circuit Court of Appeal and
U.S. Supreme Court on the way). And here they are again seeking a hearing for the
appointment of a guardian in the civil division of this Court.
Nothing in Appellants' brief supports their position that the trial court lacked
substantial evidence to find their numerous filings on the question to be without
merit and frivolous. This exchange between Mr. Beauvais and the Court at the §391
hearing concerning the guardianship question shows the nature of Appellants' misconception:
"MR. BEAUVAIS: -- she absolutely has to have a guardian ad litem. I mean, they
are required by statute. The second issue is that we distinguish between THE COURT: But the proper remedy for that is to go to the probate court where
they have a conservatorship, have that court appoint a guardian ad litem in this
particular case. They have jurisdiction over that. They have --, that's the proper
remedy.
MR. BEAUVAIS: Well, yeah. I absolutely agree with that, Your Honor, and we went
there.
MR. GOLIN: That's right.
*38 MR. BEAUVAIS: But the problem is there's no judge on the Santa Clara County
Superior Court that can grant the motion because they're all recused, so what are
we supposed to do?
THE COURT: Not in the probate case [sic]."
R.T. Vol. VI, pg. 189: 27-190: 14).
Appellants also have made a cottage industry of filing baseless challenges against
judges and attorneys. In the probate proceedings, the Golins unsuccessfully challenged Superior Court Judges Thomas Edwards and William F. Martin. (C.T. Vol. 17,
pgs. 4638-4639). They challenged the judge assigned to their instant Superior Court
case no less than 5 times (C.T. Vol. 11, pgs. 2785-2794 (Judge Kevin Murphy; C.T.
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Vol. 11, pgs. 2985-3028 and Vol. 12, pgs. 3057-3070 (Judge Eugene Hyman); (C.T.
Vol. 14, pgs. 3784-3906 and Vol. 15, pg. 4010 (Judge Neil Cabrinha). Not one of
these challenges had the slightest merit, yet the Golins nevertheless succeeded in
their tactic of eliminating judge after judge until no one was left in the courthouse to hear their case and the Judicial Council was forced to intervene and locate a judicial officer to preside (at significant expense to the County). Appellants then challenged both outside judge appointed to come in for the case. (C.T.
Vol. 16, pgs. 4483- 4486 and Vol. 16, pgs. 4491-4502 (Judge Breen); C.T. Vol. 18,
pgs. 5107-5108; Vol. 19, pgs. 5182-5183 (Judge Byrne).). These too were frivolous
challenges. The Golins did not limit their paranoia to the bench. They also filedand lost-motions in the Probate Court to disqualify SARC counsel Nancy Johnson and
Public Defender Malorie Street. (C.T. Vol. 17, pg. 4639, lines 7-10).
*39 No actual showing of adversaries' evildoing has ever been successfully made by
Appellants. Their attacks upon opponents and court officials is based on paranoia
alone. As Judge Martin found:
"The Court finds as to both Ms. Johnson and Ms. Street that they have acted professionally, ethically and in the best interests of their respective clients. The
Court finds no evidence of personal animus or bias against Mr. or Mrs. Golin. Counsel's advocacy of positions contrary to those of Mr. and Mrs. Golin does not support the extraordinary allegations made by Mr. and Mrs. Golin against both Ms.
Johnson and Ms. Street. The written papers submitted to the Court during trial and
pretrial, as well as the repeated arguments of both Mr. and Mrs. Golin demonstrate
a world-view of deep distrust and suspicion of authority, especially government authority."
(C.T. Vol. 17, pg. 4639, lines 12-19) (emphasis supplied). Appellants' excuse for
bringing these repeated motions-i.e., that the "constantly changing legal landscape" of recused judges made this necessary (AOB at page 3)-obviously turns logic
on its head. It is clearly a hallmark of Appellants' posture in every case to suppose that everyone involved in every proceeding is present solely to conspire maliciously against them. They see enemies everywhere they look, and this obviously includes every courtroom and every public office. Appellants are convinced every Santa Clara County official is biased or corrupted. They therefore simply refuse to
accept that they can get a fair trial in this county and will not concede the venue
question. Their angry, baseless attacks are the result, and thus these filings are
not legitimate, reasoned petitions but rather desperate lashing out at any and all
perceived foes.
A reading of Appellants' repetitive submittals on any of the foregoing issues
shows the hollowness-hence, the frivolousness-of their arguments. Their venue motions, judicial challenges, disqualification motions, and so on *40 all play upon
the same argument: a paranoid belief that they cannot obtain a fair hearing in the
state courts of this County due to the fatal bias that taints every civil servant
employed by the polity. The absurdity of this view is plain in every document they
file, witness Appellants' challenge to the two out-of-county judges (Judges Breen
and Byrne) appointed by the Judicial Council to hear the case, despite these jurists' lack of any true connection with Santa Clara County. Clearly, the trial
court acted within its discretion to find these various pleadings on these particular issues frivolous and without merit. The Golins' efforts to hand-pick their
court and judge and to remove all opponents have been patently frivolous and en-
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tirely justify Judge Byrne's §391 order.
3. The Court's Finding Under C.C.P. §391 Is Entirely Consistent With Appellants'
Litigation Record
Simply put, a vexatiousness determination is the courts' way of labeling, tracking, and controlling a litigant who simply won't take no for an answer, even when
confronted by a final response to a specific legal question. The character trait of
unreasonable persistence in the face of authoritative rejection fits the Golins to
a T, and appears equally often in both legal and non-legal settings. Doctors who
treated or examined Nancy Golin described for the Probate Court how, despite repeated explanations of medical questions, the Golins "refused to believe me," "continue to aggressively demand that I admit [Nancy Golin] to the hospital," "continue
to interrupt me and not let me finish my sentences," "are refusing to leave and
[have] been asked to leave now by security; . . . they left angry." (C.T. Vol. 17,
pg. 4647, lines 2-6). Probate Judge Martin observed that the care facility housing
Nancy Golin repeatedly requested her removal "due to intimidation and aggravation
caused by Mr. and Mrs. Golin. (C.T. Vol. 17, pg. 4648, lines 6-10). Judge Martin
found in the Golins' attitudes toward medical and related professionals (e.g., *41
"smart aleck intern," " 'scatter-brained' social worker," so-called experts," "wet
behind the ears" (C.T. Vol 17, pg. 4648) a pattern matched by their dismissiveness
toward courts and judges ("kangaroo court," "political prisoners," "banana republic") [id., pg. 4639, lines 21-22]). Jeffrey Golin was cited for contempt in the
Probate Court, which excluded Elsie Golin from the courtroom for coaching a witness. [Id., pg. 4649, lines 7-9]). Judge Martin found the Golins to be disruptive
of court proceedings and continuously in conflict with professionals and with each
other, and found them to have misled the court [id., pg. 4649: 12-4650: 5].)
The purpose of recounting this consistent record of immature, persistent, selfabsorbed behavior is not to disparage Appellants' reputations or bias the Court
against them, but rather to demonstrate the factual record that was before the trial judge on the subject §391 motion-a proceeding where the Court was required to
make findings as to the subjective lack of reasonableness (i.e., frivolousness) of
legal positions taken by the Golins and their likelihood of prevailing on the merits. It was entirely appropriate for the Court to consider the Golins' complete
record of actions in all regards as they pertain to Nancy Golin, not least because
Appellants' success or failure on their tort claims depended largely on the
strength of their versions of events, their credibility, the objectivity and number
of opposing witnesses, etc. It is clear that the Superior Court had an ample record
on which to conclude that Appellants' various filings were motivated by a vexatious
temperament and propensity for argumentation, rather than a legitimate belief in
the correctness of the legal position posited, and that they were not likely to
prevail given the strong evidence against them.
*42 B. THE TRIAL COURT PROPERLY FOUND THAT THE OSTENSIBLE PRESENCE OF PLAINTIFF'S
COUNSEL IS NO IMPEDIMENT TO A DETERMINATION UNDER C.C.P. §391
The trial court received full briefing and evidence on the issue, raised by Appellants (AOB at 14-17), of whether Elsie Golin could be found to meet the definition
of a vexatious litigant in view of her formal representation by attorneys, with Appellants obviously arguing that counsel's presence barred such a ruling. It was and
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is undisputed that Jeffrey Golin was self-represented during the Superior Court
proceedings and at the time of the §391 motion and is not a lawyer, but Appellants
nevertheless also argue that he should be insulated against a vexatiousness determination as well because as a plaintiff in propria persona he worked closely with
Mrs. Golin's lawyers. The Superior Court correctly rejected these arguments and
found-consistent with the authorities Respondents presented-that the ostensible
presence of these attorneys was not an impediment to a finding of vexatiousness for
both Elsie Golin and Jeffrey Golin. The record here is replete with evidence to
support the conclusion that these lawyers were not truly serving as active legal
representatives for either plaintiff, but rather allowed themselves to be used by
the Golins as a false front for, and were puppet of, Appellants' own self-directed
litigation tactics.
The astonishing evidence for this conclusion was:
• Attorney White: Admittedly played no role in the case at all apart from filing
pro hac vice application for Attorney Wallace from New York; denied that he had any
obligation to do anything further, despite being counsel of record throughout the
action (C.T. Vol. 19 at pg. 5194: 12-25).
*43 • Attorney Wallace: Stated he is present in this action solely to advise
Plaintiffs on the "constitutional" custody issues (issues already fully adjudicated
in several fora), and that he does not represent the Golins on their tort and other
claims, which represent the majority of the purported causes of action in this
case; served mainly as Jeffrey Golin's sounding board and occasional mouthpiece at
hearings; appears to have allowed his signature to be forged indiscriminantly by
Mr. Golin (C.T. Vol. 18 at pgs. 5073-5075 and Vol. 19, pg. 5192).
• Attorney Beauvais: Made first and only trial court appearance on vexatious litigant motion by appearing "specially" and solely for purposes of certain motions
(R.T. Vol. VI, pg.139: 19-28 and pg. 140: 1-6); never executed substitution of attorney (C.T. Vol. 19, pg.5192; 1-7); allowed Mr. Golin to draft-and sign his name
on-both the Beauvais Declaration and supplemental brief filed by Appellants in opposition to the §391 motion (id.); effectively admitted his lack of any substantive
involvement as counsel for the Golins with weak, conclusory statements that prove
only that: he did an investigation of this case (C.T. Vol. 18 at pg. 5079: 11-15);
he is not a "rubber stamp" or "puppet" of Plaintiffs (C.T. Vol. 18 at pg. 5079: 2125); and "Mr. Golin . . . follows my advice" (C.T. Vol. 18 at pg. 5079: 21-25),
etc. These statements basically prove Respondents' point that Mr. Golin does his
own legal research and drafting and the Golins cannot be said to have a lawyer in
any real sense.
Jeffrey Golin confirmed his lawyers' admissions at the hearing on the subject motion:
*44 "[O]f course I'm doing the research, Your Honor. I'm not a rich man. I can't
afford - I can't afford -- you know, any of these attorneys that you're looking at,
but I've become proficient at doing legal research. And many of the briefs that
they're complaining about that are supposedly frivolous or time wasting are briefs
that I believe -- and I think that Mr. Beauvais would agree, Mr. Wallace would
agree that any attorney would be proud to affix his name to because of the -- of
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the authorities that I've cited and the relevance to the case."
(R.T. Vol. VI, pg. 180:5-14).
All three lawyers also have in common the fact that they left service and filing
responsibilities to Mr. Golin, who was proved to have forged the signatures of total strangers on innumerable proofs of service. (C.T. Vol. 19 at pgs. 5194-5195;
R.T. Vol. VI, pgs. 135-139). Counsel evidently did not know or did not care how or
whether documents prepared using their names were served and filed. This pattern of
disregard underscores the lawyers' total abdication of duty and the Golins' use of
counsel as a mere facade. Judge Byrne found that Mr. Golin's admitted pattern and
routine practice of forging proofs of service constituted a serious issue of abuse
of process. (R.T. Vol. VI, pg. 141:14-28).
The foregoing practices detailed by Respondents and admitted by Appellants and the
lawyers listed on their side of the scorecard are frankly shocking from the perspective of legal and professional ethics. But the history of attorney neglect and
complicity is only relevant to the question of whether under a §391 analysis these
lawyers were in fact real legal representatives for Mrs. Golin. The trial court was
relying on a solid factual record in concluding they were not and that counsel were
mere puppets of the Golins-not true advocates and professional legal representatives.
*45 Moreover, this conclusion is fully supported by the authorities on the issue,
despite Appellants' creative efforts to draw distinctions. To begin, it is uncontroverted that Mr. Golin had dismissed his original lawyers and made all subsequent
appearances in propria persona. [AOB at 8.] In addition, the evidence described
above demonstrates that Mr. Golin did not utilize Mrs. Golin's lawyers thereafter
for anything other than occasional "consulting" (AOB at 16-17). On the contrary:
they used him by having Mr. Golin research, draft, serve and file the legal briefs
that went out under their names.
Furthermore, nothing in the Appellants' assertions of fact suggests that these attorneys' actual client--Mrs. Golin-ever had anything to do with her purported counsel. It is clear that the lawyers were just there to prop up Mr. Golin and give the
appearance that the Golins were represented by counsel- not for any real representation of Elsie Golin. Rather, based on the record in this case it strongly appears
that rather than deserving protection against application of §391, Mr. Golin should
be held to account for the unauthorized and surreptitious practice of law on behalf
of his wife.
Next, the authorities on the issue fully support the trial court's holding; Appellants' attempts to distinguish these are misplaced. In Muller v. Tanner (1969) 2
Cal.App.3d 438, 440-01, the court dismissed the plaintiffs case after finding that
the action, which was a bald relitigation of a prior unsuccessful case wherein he
was determined a vexatious litigant under §391, "was shown to be sham, fictitious
and without merit in order to prevent abuse of the judicial process." The trial
court so ruled despite the fact that the plaintiff had retained a lawyer to represent him in the subsequent action. Indeed, the court's decision suggests the conclusion that counsel's presence was an element of the sham, which was designed precisely to skirt §391. The lawyer in question, in *46 other words, allowed himself
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to be used by a clever and vexatious party in efforts to do an end run around the
statute. The court dispensed with the plaintiff's presence-of-attorney argument,
stating.
"The fact that plaintiff secured an attorney to lend his name to the subsequently
filed complaint avails him naught. The provisions of the vexatious litigant statute, which the court acted to protect in this action, do not preclude a stay or
dismissal because an attorney is used in the action in which the motion is made.
(See, Code Civ. Proc, 391, subds. (a) and (b) and §391.1; and Comment, The Vexatious Litigant (1966) 54 Cal.L.Rev. 1769, 1782, fn. 58.) Therefore, the use of an
attorney in this case should not deprive the court of the power to protect itself
from abuse of the judicial process."
Muller, supra, 2 Cal.App.3d at 444 (emphasis supplied). Appellants point out that
the plaintiff in Muller had previously been determined a vexatious litigant and
therefore the decision is distinguishable from the ruling here. But nothing in the
Muller court's reasoning suggests that a preexisting vexatious litigant ruling is
necessary to a finding that counsel is no bar to application of the statute. The
essence of the reasoning in Muller is that a party whose in propria persona actions
provide a basis for an order under Code of Civil Procedure §391 may not evade the
impact of the statute by belated retention of ostensible counsel. This principle
applies directly in this
The case of In re Shieh (1993) 17 Cal.App.4th 1154 involved an attorney, LiangHouh Shieh, who had a protracted series of legal disputes with a number of law
firms. He was determined vexatious by several courts, state and federal. In the
opinion cited here, the Court of Appeal found that the restrictions of §391 should
again apply, regardless of whether a lawyer's name appeared as counsel of record
for Shieh. The court's reasoning is directly applicable to the case of the Golins:
*47 "It is apparent from syntax, grammar, style and tone that, both in the trial courts and in this court, many-if not most-of the pleadings and other documents
filed by Shieh or on his behalf have been written by the same person. This is the
case even though Shieh has filed many of the initial pleadings in propria persona
and then associated in co-counsel or substituted in a variety of replacement counsel, some of whom in turn become defendants in new litigation Shieh initiates. It
is patently obvious that every writ petition, notice of appeal, appellant's brief
and opposition to orders to show cause filed in this division has been drafted by
the same hand, even though Shieh ostensibly has appeared in propria persona and
through two separate attorneys ...
"In short, it is clear that Shieh does not engage attorneys as neutral assessors of his claims, bound by ethical considerations not to pursue unmeritorious or
frivolous matters on behalf of a prospective client. [Citation]. Rather, these attorneys who ostensibly 'represent' Shieh serve as mere puppets. Based on these
facts, we conclude a prefiling order limited to Shieh's in propria persona activities would be wholly ineffective as a means of curbing his out-of-control behavior.
"Accordingly, Liang-Hough Shieh may not file any new litigation in the courts
of this state, whether in propria persona or through an attorney, without first obtaining leave of the presiding judge of the court in which he proposes to file the
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litigation ...."
In re Shieh, supra, 17 Cal.App.4th at 1167-68 (emphasis supplied in part). The decision in Shieh is an apt reference in this action, where Mr. Golin has proudly
acknowledged his own exclusive responsibility for Appellants' various filings in
the trial court, and where Mrs. Golins' attorneys all grudgingly admit their own
lack of true involvement in her representation as described in sections above. Appellants again attempt to draw the distinction that Shieh had previously been determined a vexatious litigant and therefore the later holding against him despite
the presence of counsel is distinguishable from the *48 case here. For the same
reasons argued immediately above as to Muller, Appellants' argument must be dismissed. "It has long been recognized in this state that a court has inherent power
to dismiss an action when it is shown to be sham, fictitious or without merit in
order to prevent abuse of the judicial process." Muller, supra, 2 Cal.App.3d at
443.
Finally, and somewhat strangely, Appellants have cited Camerado Ins. Agency v. Superior Court (Stolz) (1993) 12 Cal.App.4th 838 as support on the question of a vexatious litigant's use of counsel as a front. Camerado actually supports Respondents
here. In that case the court of appeal ordered the Superior Court to vacate its order denying the defendant's motion for security under §319 where the plaintiff had
counsel in the present action. The court held that the actions of a plaintiff acting in propria persona in past litigation may be applied against that party on a
§391 motion in a later case where that plaintiff is represented by counsel. Nothing
in the opinion suggests that the plaintiff had previously had a §391 order entered
against him. In Camerado, the court-noting the applicability of the decision in
Muller, supra, to subsequent amendments of §391-stated:
"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."
Camerado Ins. Agency, supra, 12 Cal.App.4th at 844.
The record here therefore more than amply supports the findings that Jeffrey Golin
was self-represented and Mrs. Golin's lawyers were mere puppets who willingly
served as mere conduits of Mr. Golin's abusive litigation tactics. There is no
question from the lawyers' own affirmative *49 statements and omissions that Appellant was the quarterback and his lawyers provided only some occasional blocking for
Elsie Golin: Jeffrey Golin did Appellants' research; drafted their pleadings; decided what motions to file, when and against whom; decided whether, when and how to
serve and file pleadings; and even signed his lawyers' names as well as the forged
signatures of the unknown persons he named as having served the documents. If these
lawyers cannot be called puppets, query what level of negligence would be required
to meet the test:
C. RESPONDENTS WERE CLEARLY LIKELY TO PREVAIL AT TRIAL
Code of Civil Procedure §391. I requires that a motion for a finding of vexatiousness be supported by a showing that the subject of the motion is unlikely to pre-
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vail in his or her cause. Such a showing has been amply made in this case. The trial court was presented with a full accounting of Appellants' prior litigation on
the questions raised in their instant VAC. Every court that addressed itself to Appellants' assertions of fact or law rejected their arguments. This occurred numerous times, in courts both state and federal, trial and appellate. Not one court
gave even the slightest victory to Appellants on any issue, apart from the few
scandalous instances where the Golins took an ex parte application without notice
to Respondents and the unfortunate instances where a judge was persuaded to opt out
of the case through means of a challenge from Appellants.
On any other question, the Golins have not prevailed. And they were unable to
demonstrate to Judge Byrne any reason that the result would not be the same in his
court. Plainly, the trial court was not persuaded that Appellants *50 were likely
to fare better this time, and it did not hesitate to grant the subject motion and
find both Mr. And Mrs. Golin vexatious within the meaning of the statute. There is
nothing now before the Court to suggest that this ruling was arbitrary, capricious
or not fully supported by the evidence.
Appellants suggest that res judicata does not bar their relitigation of claims as
to which federal abstention applied, leading to dismissal in the district court.
The dismissal ruling, they argue, did not address the substantive merits of their
claims and was procedural or jurisdictional only in nature. Although Appellants
overlook the substantive rulings on the merits delivered by the District Court,
their larger argument is also inapt: no showing of a res judicata or collateral estoppel impediment to litigation need be shown for a court to find a plaintiff vexatious under §391. Various tests can be applied to determine a party subject to the
rule: one who relitigates settled issues may be found vexatious, but so may the
party "who engages in other tactics that are frivolous or solely intended to cause
unnecessary delay." Code of Civil Procedure §391(b)(3). The trial court clearly had
a sufficient record before it to make this finding as to Appellants on both bases.
D. NANCY GOLIN IS NOT A PROPER PARTY TO THIS ACTION IN ANY COURT AND HER APPEAL
SHOULD BE DISMISSED
The trial court made clear its conclusion that Nancy Golin was in no way a party
to this action. (R.T. Vol. VI, at pgs. 140, 156). The court dismissed the entire
action with prejudice and did not find it necessary to include Nancy Golin in the
vexatious litigant determination to do so. It terminated all claims of Jeffrey and
Elsie Golin under Code of Civil Procedure §391, et seq. and did not see any need to
address any purported claim asserted *51 by Nancy Golin, because it found she was
not properly before the Court and therefore had no pending causes of action. (R.T.
Vol. VI, pg. 200; Vol 7, pg. 214, lines 4-9, pg. 227, lines 3-16).
This result follows from the facts that Nancy is a conserved individual and that
the conservator has not authorized the filing of suit on her behalf or retained
counsel for her. Nancy therefore was not a party to the action at bar and therefore, contrary to Appellants' assertions (AOB at 32-38), she was neither before the
trial court nor subject to its jurisdiction even if the court had attempted to exercise its powers over her. The Golins' relentless efforts to have a new guardian
ad litem sympathetic to their goals appointed for Nancy in this action is obviously
their main objective so that they can improperly maneuver Nancy into the position
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
2008 WL 5678106
2008 WL 5678106 (Cal.App. 6 Dist.)
FOR EDUCATIONAL USE ONLY
Page 31
of plaintiff in litigation against the Respondents. The court wisely resisted this
ploy.
An appeal may be taken only by a "party aggrieved" by the appealed judgment or order. Dismissal of an appeal is appropriate if the appellant lacks standing to appeal. Eggert v. Pacific States Saving & Loan Co. (1942) 20 Cal.2d 199, 200-01. Unless and until the Probate Court appoints such individual to act on Nancy's behalf,
however, only her conservator can decide whether to undertake litigation on her behalf. Accordingly, she had no claims pending in the underlying action and cannot be
a party to this appeal. Because neither Elsie nor Jeffrey Golin have standing to
appeal on behalf of Nancy, the Court should so find and dismiss any proceedings
that purport to raise any interest of or claim by Nancy Golin.
Moreover, the decision to appeal is that of a client-not the attorney. An appeal
will be dismissed if the client has not actually consented thereto. Matter of Regan
(Rev. Dept.2005) 4 Cal. State Bar Ct. Rptr. 844, 853-55; In *52 re Alma B. (1994)21
Cal.App.4th 1037, 1043. In this case, neither Nancy nor her conservator have given
consent to this Appeal and as a result this Court should dismiss the appeal as to
Nancy on these grounds.
*53 VII. CONCLUSION
The trial court's rulings determining the Golins vexatious, setting a bond, and
dismissing the case for failure to meet that requirement are firmly supported by
substantial evidence. Appellants have offered this Court nothing that suggests they
were likely to prevail through this action in their quixotic quest for compensation
for perceived yet still unproved slights. The trial court had a full record of Appellants antics to consider and properly found that the Golins have made a consistent practice of filing frivolous pleadings and asserting unmeritorious allegations and claims. Appellants fail to meet their burden to show any error whatsoever. There should be no temptation for this Court to substitute a different judgment
in place of the decision by an experienced and objective trial judge in this case.
The time is overdue for both Respondents and the courts to obtain relief from the
relentless abuses of the legal system by the Golins. The judgment of the trial
court should be affirmed.
END OF DOCUMENT
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.