Pittman v. Beck Park Apartments Ltd.

and intimidating" emails to opposing counsel, one of which included "an extended diatribe about 9/11, the war in Iraq, pharmaceutical companies, and the inequities of the criminal justice system," while in another, Pittman stated, "[L]et them know that that was only one battle because the war will end in the courtroom and that is where I must die." Pittman did not oppose the vexatious litigant motion but instead dismissed Siemens from the case on April 5, 2010.

A hearing on the vexatious litigant motions was held on April 12, 2010. Pittman appeared, but TEG Staffing's and Siemens's counsel, believing the vexatious litigant motions had been taken off calendar due to their clients' dismissals, did not appear. The court stated the dismissals did not "necessarily

for hearing. The court again set a deadline for Pittman to respond to the motion.

After hearing oral argument from Pittman and Siemens's counsel the trial court denied Pittman's motion to vacate on April 23, 2014. The court found section 473, subdivision (d), did not apply to the situation before it because Pittman did not argue clerical mistakes. The court stated Pittman's motion should have been brought pursuant to section 391.8, which allows an individual to seek removal of a vexatious litigant designation. However, because Pittman had not shown changed circumstances as required by section 391.8, the trial court found it could not grant Pittman the relief requested. The court further stated Pittman's motion "appears to be an untimely attempt to make a motion for reconsideration of previous orders.... Mr. Pittman failed to bring these arguments to the Court in a timely noticed motion pursuant to CCP section 1008." The court did not address Pittman's voidness or jurisdictional arguments.

On May 2, 2014 Pittman moved for reconsideration of the trial court's denial of the motion to vacate. Pittman again argued the previously filed cases underlying the vexatious litigant finding were not final. He also argued the court erred by failing to address his voidness argument. One month later, while the motion for reconsideration was pending, Pittman moved ex parte for an order striking all Siemens's pleadings and "oral and written statements" in the case. The ex parte application was denied.

On June 19, 2014, with his motion for reconsideration still pending, Pittman filed a second notice of appeal. Pittman again sought review of the

[or order], when the judgment [or order] may be attacked, and how the party challenging the judgment [or order] proves that the judgment [or order] is void." (

orders in the dismissed action"]; Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869 , 876, 100 Cal.Rptr.3d 771 [same].) Accordingly, most orders entered after the dismissal are void and have no effect. ( Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255 , 261, 82 Cal.Rptr.3d 629 [" '[a]n order by a court lacking subject matter jurisdiction is void' "]; Paniagua v. Orange County Fire Authority (2007) 149 Cal.App.4th 83 , 89, 56 Cal.Rptr.3d 746 [" '[i]t is a well-settled proposition of law that where the plaintiff has filed a voluntary dismissal of an action ..., the court is without jurisdiction to act further, and any subsequent orders of the court are simply void' "].)

Notwithstanding this general principle, "courts have carved out a number of exceptions to this rule in order to give meaning and effect to a former party's statutory rights." ( Frank Annino & Sons Construction, Inc. v. McArthur Restaurants, Inc. (1989) 215 Cal.App.3d 353 , 356, 263 Cal.Rptr. 592 ( Frank Annino ).) When a post-dismissal or postjudgment motion involves collateral statutory rights, then the court may retain jurisdiction to determine and enforce those rights. ( Id. at p. 357, 263 Cal.Rptr. 592 ; accord, Day v. Collingwood (2006) 144 Cal.App.4th 1116 , 1125, 50 Cal.Rptr.3d 903 ( Day ).) One frequent example of post-dismissal or postjudgment retention of jurisdiction occurs when courts hear motions related to attorney fees and costs. (See, e.g., Barry v. State Bar of California (2017) 2 Cal.5th 318 , 326, 212 Cal.Rptr.3d 124 , 386 P.3d 788 ["[n]or is lack of subject matter jurisdiction a bar to awarding attorney's fees and costs"]; Maria P. v. Riles (1987) 43 Cal.3d 1281 , 1290, 240 Cal.Rptr. 872 , 743 P.2d 932 ["dismissal [for failure to prosecute] does not divest the trial court of jurisdiction to award attorney fees"]; State of California ex rel. Standard Elevator Co. v. West Bay Builders, Inc. (2011) 197 Cal.App.4th 963 , 980, 130 Cal.Rptr.3d 99 [holding trial court had jurisdiction to award statutory attorney fees in qui tam action even if court had no subject matter jurisdiction over the case]; Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211 , 218, 123 Cal.Rptr.2d 647 ["defendants were entitled to a ruling [after dismissal] on the merits of their SLAPP motion, the result of which will necessarily determine their right to attorney fees"].) Courts have likewise held jurisdiction is retained post-dismissal and postjudgment to decide motions for sanctions. (See, e.g., Day, at p. 1126, 50 Cal.Rptr.3d 903 ["[w]e conclude the trial court had jurisdiction to consider Collingwood's postjudgment motion for sanctions"];

parties and their attorneys from engaging in bad faith tactics and to compensate a party victimized by such tactics.... [T]here is no basis in logic or public policy to deny the victim the remedy of sanctions simply because, through the bad actor's own doing, the victim is no longer a party." ( Id. at p. 358, 263 Cal.Rptr. 592 .) A contrary rule, we continued, "would render section 128.5 virtually useless as a weapon against actions or tactics that are totally without merit or undertaken for the sole purpose of harassment. A party or attorney could act in the most egregious bad faith, engage in the most outrageous conduct, and do so with impunity. They could avoid sanctions by simply dismissing the action without prejudice.... Such a result is untenable given the obvious purpose of the sanction statute. It also violates any reasonable sense of justice and fair play." ( Id. at p. 359, 263 Cal.Rptr. 592 .)

In Day the court similarly held jurisdiction was retained to consider a sanctions motion filed after summary judgment was granted to defendant. The court adopted the reasoning we had articulated in Frank Annino and further emphasized the collateral and ancillary nature of a sanctions motion, stating, "[A] trial court's consideration of a postjudgment sanctions request does not undermine the finality of the merits of the judgment." ( Day , supra , 144 Cal.App.4th at p. 1125, 50 Cal.Rptr.3d 903 .) Thus, retaining jurisdiction to decide a postjudgment motion would not interfere with a party's entitlement to rely on that judgment. ( Ibid. )

The United States Supreme Court has reached the same conclusion. In Cooter & Gell v. Hartmarx Corp. (1990) 496 U.S. 384 , 110 S.Ct. 2447 , 110 L.Ed.2d 359 the Court held sanctions under rule 11 of the Federal Rules of Civil Procedure ( Rule 11 ) could be imposed when the plaintiff voluntarily dismissed the complaint after the sanctions motion had been filed.

the jurisdictional issues, the court reasoned section 391.7"affords protection to defendants named in pleadings not yet filed with the court. If individuals named as defendants in these lawsuits were required to wait until the action was pending, the prefiling order provided for in section 391.7 would be illusory." ( Bravo , at pp. 222-223, 120 Cal.Rptr.2d 879 .)

We agree with the reasoning in these cases. Like a motion for attorney fees or sanctions, a motion to declare a self-represented plaintiff a vexatious litigant deals with an ancillary issue and has no bearing on the finality of the judgment or dismissal. Retaining jurisdiction to decide a vexatious litigant motion is consistent with the purpose of the statutes, which are "designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants." ( Shalant v. Girardi (2011) 51 Cal.4th 1164 , 1169, 126 Cal.Rptr.3d 98 , 253 P.3d 266 .) A dismissal does not rectify the harm already done by the filing of a groundless action. Nor does the dismissal extinguish the court's interest in deterring and punishing the waste of judicial resources. A contrary rule would allow a litigant to strategically escape a vexatious litigant finding altogether by

fraud or mistake must show three elements: (1) a meritorious defense (2) a satisfactory excuse for not presenting a defense in the first place; and (3) diligence in seeking to set aside the [order] once discovered." ( Rodriguez v. Cho , supra, 236 Cal.App.4th at p. 750, 187 Cal.Rptr.3d 227 .)

On May 28, 2010 the trial court declared Randall Pittman a vexatious litigant and prohibited him, pursuant to Code of Civil Procedure section 391.7, from filing in propria persona any new litigation in the courts of this state without first obtaining leave of the presiding judge or justice of the court where the litigation is proposed to be filed. Over the past seven years Pittman has made several attempts to have that order stricken, reconsidered, vacated or overturned. This appeal is from the trial court's most recent denial of Pittman's motion to vacate the order declaring him a vexatious litigant. We affirm.

moot the motion, because I can take judicial notice of the court's records." The court questioned Pittman regarding the five lawsuits discussed in Siemens's motion. Pittman stated three of the cases were pending on appeal. Pittman also asked the court whether Siemens could still bring the motion given its dismissal from the case. The court stated, "They brought the motion, then you tactically dismissed them out." Pittman replied that was correct; and the court continued, "But it has been brought to my attention, and I have the power on my own to review cases [regarding] anyone who might be considered a vexatious litigant. That's the inherent power of the court." The court stated it would continue the hearing on the vexatious litigant motions pending the outcome of the appeals and granted Pittman additional time to oppose the motions.

Rather than file an opposition, Pittman appeared ex parte on April 19, 2010 seeking an order "striking the false pleadings alleged in [Siemens's vexatious litigant motion] pursuant to the Court's own motion" and denying Siemens's motion. In his memorandum of points and authorities Pittman argued he did not meet the statutory definition of a vexatious litigant because the five prior lawsuits cited by Siemens were pending on appeal, pending before the United States Department of Labor or had been re-filed after dismissal. Siemens's counsel was not served with notice of Pittman's ex parte application and did not appear. It is not apparent from the record precisely what occurred during the ex parte hearing. In his brief on appeal Pittman states the court issued an order "declaring that Appellant was not a vexatious litigant." However, the court's minute order states only that Pittman's ex parte application was granted and the hearing date for the vexatious litigant motion was vacated. The day after the hearing, pursuant to the court's order, Pittman prepared and served a notice of ruling, which stated his application for an order striking Siemens's vexatious litigant motion and for an order denying the vexatious litigant motion had been granted.

On April 22, 2010 Siemens's counsel appeared ex parte seeking an order striking or clarifying Pittman's notice of ruling. In a declaration supporting the motion Siemens's counsel stated she had not been served with Pittman's ex parte application and, upon receiving the notice of ruling, she had contacted the court clerk, who informed her the court had not ruled on Siemens's vexatious litigant motion, but had merely taken it off calendar. Siemens asserted Pittman had fabricated the notice of ruling to make it appear the court had denied the vexatious litigant motion so that Pittman could assert collateral estoppel in another proceeding where the defendants had moved to declare him a vexatious litigant. After hearing argument from Pittman and Siemens's counsel, the trial court vacated its minute order of April 19 and re-set Siemens's vexatious litigant motion

litigant had already been determined in the negative in two other proceedings. First, Pittman stated a vexatious litigant motion had been "denied ... in its entirety" in 2009 in a lawsuit he brought, and subsequently dismissed, against his former

from the attorney he claimed had told him the motion was off-calendar, nor had Pittman shown he had a meritorious defense to the motion. The court also rejected Pittman's collateral estoppel argument because the 2014 federal court order could not have estopped the earlier 2010 vexatious litigant order.

Pittman filed a notice of appeal on September 4, 2015. After the record on appeal was filed and Pittman responded to an order requiring a preliminary showing of merit pursuant to section 391.7, subdivision (b), Pittman was granted leave to proceed with his appeal.

DISCUSSION

1. Governing Law and Standard of Review

Section 473, subdivision (d), provides a trial court "may, on motion of either party after notice to the other party, set aside any void judgment or order." "[I]nclusion of the word 'may' in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment [or order]." ( Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488 , 495, 52 Cal.Rptr.3d 862 .) However, the trial court "has no statutory power under section 473, subdivision (d) to set aside a judgment [or order] that is not void...." ( Id. at pp. 495-496, 52 Cal.Rptr.3d 862 .) Thus, the reviewing court "generally faces two separate determinations when considering an appeal based on section 473, subdivision (d): whether the order or judgment is void and, if so, whether the trial court properly exercised its discretion in setting it aside." ( Nixon Peabody LLP v. Superior Court (2014) 230 Cal.App.4th 818 , 822, 179 Cal.Rptr.3d 96 .) The trial court's determination whether an order is void is reviewed de novo; its decision whether to set aside a void order is reviewed for abuse of discretion. ( Ibid. ; see also Cruz, at p. 496, 52 Cal.Rptr.3d 862 .)

In determining whether an order is void for purposes of section 473, subdivision (d), courts distinguish between orders that are void on the face of the record and orders that appear valid on the face of the record but are shown to be invalid through consideration of extrinsic evidence. "This distinction may be important in a particular case because it impacts the procedural mechanism available to attack the judgment

On the merits, Pittman is correct that a plaintiff's voluntary dismissal of an action generally deprives the court of jurisdiction in the case. (See Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781 , 784, 176 Cal.Rptr. 104 , 632 P.2d 217 ["[u]pon the proper exercise of that right [of voluntary dismissal], a trial court would thereafter lack jurisdiction to enter further

Eichenbaum v. Alon (2003) 106 Cal.App.4th 967 , 976, 131 Cal.Rptr.2d 296 [same]; West Coast Development v. Reed (1992) 2 Cal.App.4th 693 , 706, 3 Cal.Rptr.2d 790 [same]; Frank Annino, at pp. 358-359, 263 Cal.Rptr. 592 [same].)

The rationale for retaining jurisdiction to decide sanctions motions is particularly instructive for the issue before us. In Frank Annino the plaintiff voluntarily dismissed a defendant the day before the hearing on that defendant's motion for summary judgment. ( Frank Annino , supra , 215 Cal.App.3d at p. 356, 263 Cal.Rptr. 592 .) After the dismissal the defendant moved for sanctions under section 128.5 based on the plaintiff and his attorney's alleged bad faith and frivolous tactics. The trial court granted the motion. On appeal this court acknowledged the general rule that dismissal deprives the court of jurisdiction but held consideration of sanctions issues was an exception. ( Id. at pp. 357-359, 263 Cal.Rptr. 592 .) We analogized the postjudgment consideration of a sanctions motion to the postjudgment award of attorney fees, explaining the purpose of statutory sanctions is "much the same" as statutory attorney fees: "to discourage

The Court noted a voluntary dismissal does not eliminate the sanctionable conduct, stating, "[T]he harm triggering Rule 11's concerns has already occurred. Therefore, a litigant who violates Rule 11 merits sanctions even after a dismissal." ( Cooter , at p. 398, 110 S.Ct. 2447 .) The Court stated imposing sanctions after dismissal was consistent with Rule 11's purpose to deter litigant misconduct, otherwise "a litigant could purge his violation of Rule 11 merely by taking a dismissal...." ( Cooter , at p. 398, 110 S.Ct. 2447 .) The Court also emphasized that a sanctions motion has no effect on the merits of the action but is a "determination of a collateral issue.... Such a determination may be made after the principal suit has been terminated." ( Cooter , at p. 398, 110 S.Ct. 2447 ; see also Willy v. Coastal Corp. (1992) 503 U.S. 131 , 139, 112 S.Ct. 1076 , 1081, 117 L.Ed.2d 280 [holding court could impose Rule 11 sanctions despite not having subject matter jurisdiction because the "interest in having rules of procedure obeyed, by contrast, does not disappear upon a subsequent determination that the court was without subject-matter jurisdiction"].)

Similar reasoning was employed by the court in Bravo v. Ismaj , supra, 99 Cal.App.4th 211 , 120 Cal.Rptr.2d 879 , relied on by Siemens and the trial court. In Bravo the trial court granted a vexatious litigant motion filed after judgment had been entered. On appeal plaintiff argued a lawsuit must be pending at the time a party files a vexatious litigant motion. As Pittman correctly points out, the case is distinguishable because the Fourth District held the matter was still pending when the vexatious litigant order was issued due to the plaintiff's motion for a new trial. However, as an alternative basis for its ruling, the court rejected the plaintiff's contention that an action must be pending for a vexatious litigant order to issue. Without addressing

dismissing a party or an action prior to a ruling on the vexatious litigant motion and then refiling his or her claims in a later proceeding. This is precisely the tactic Pittman has engaged in here. To fulfill the statute's aim of protecting future potential litigants, the ability to declare an individual a vexatious litigant must survive even after the action has been dismissed. (See Bravo v. Ismaj , supra, 99 Cal.App.4th at pp. 222-223, 120 Cal.Rptr.2d 879 .)

3. Pittman's Motion To Vacate Based on Extrinsic Fraud Was Untimely

Pittman also contends the vexatious litigant order is void because he was fraudulently told by opposing counsel the hearing on the motion would not occur. As discussed, "[w]here, as here, a motion to vacate is made more than six months after entry of a judgment [or order], a trial court may grant a motion to set aside that judgment [or order] as void only if the judgment [or order] is void on its face." ( Ramos , supra , 223 Cal.App.4th at p. 1440, 168 Cal.Rptr.3d 114 .)

Here, Pittman's contention the order is void based on extrinsic fraud cannot be resolved by examining the court record. Rather, it requires consideration of extrinsic evidence, specifically Pittman's own factual assertions, his declaration and the letter sent to him by counsel for Unified Technical. Accordingly, Pittman's motion under section 473, subdivision (d), made five years after the entry of the order, was untimely. (See OC Interior Services , supra , 7 Cal.App.5th at p. 1327 ; Ramos, supra, 223 Cal.App.4th at p. 1440, 168 Cal.Rptr.3d 114 ; Plaza Hollister Ltd. Partnership v. County of San Benito , supra, 72 Cal.App.4th at p. 19, 84 Cal.Rptr.2d 715 .)

To the extent Pittman intended to argue the trial court should have exercised its equitable powers to grant relief, his argument fails. "[E]ven where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order ... resulted from extrinsic fraud or mistake." ( County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215 , 1228, 113 Cal.Rptr.3d 147 .) As the trial court recognized, "the party seeking equitable relief on the grounds of extrinsic