Monday, March 9, 2015
C.A. Says Vexatious Litigant Law Applies to Family Law Contempts
By KENNETH OFGANG, Staff Writer
A family law contempt proceeding is civil, rather than criminal, for purposes of the vexatious litigant statutes, the First District Court of Appeal ruled Friday.
Div. Four affirmed an order entered in early 2013, in which the judge declined to lift an earlier order barring Richard A. Rifkin from bringing any civil action in pro per without obtaining leave of the presiding judge, based on a showing of good cause, prior to filing. The prior order was entered under Code of Civil Procedure §391(b)(7).
Rifkin and Kimberly Carty have been litigating custody and visitation issues since late 2009, when their child was a little over a year old. Carty won a temporary restraining order giving her sole legal and physical custody when the parties separated, and Rifkin began representing himself soon after.
His first filings in the case accused Carty of being likely to abuse or neglect the child and also accused her of fraud, allegations rejected by the Marin Superior Court judge who heard the case. The case was subsequently transferred to San Francisco Superior Court, where the pre-filing order was granted.
The court found that Rifkin had persistently relitigated issues that had been decided adversely to him, citing 15 motions or applications brought between October 2010 and June 2012 that raised the same claims that were rejected in Marin. Five of those were contempt matters.
‘Grind Her Down’
In granting the pre-filing order, the judge said Rifkin’s litigation tactics were consistent with Carty’s testimony that he threatened to “grind her down” if she didn’t agree to his terms for child custody and the removal of the restraining order.
The judge also awarded Carty’s attorney more than $24,000 in fees as sanctions under Family Code §271. Seven months later, now represented by counsel, Rifkin moved to vacate the order on the grounds that the previous order was based on a misunderstanding of the facts and that the vexatious litigant statutes are unconstitutionally vague.
He also argued that contempt filings may not be considered as part of a vexatious litigant proceeding because contempt is quasi-criminal and only civil actions are subject to the statutes. Judge Linda Colfax rejected those arguments and left the pre-filing order in place.
Justice Maria Rivera, writing for Div. Four, agreed. Treating family law contempts as civil matters is consistent with the purposes of the vexatious litigant statutes, the justice said.
Rivera questioned whether the order denying the motion to vacate was appealable, noting that Rifkin could have appealed the original order. She distinguished holdings that a person declared a vexatious litigant and required to post security as a condition of continuing to litigate a pending action, under §391.3, cannot appeal from that order, but may appeal from a subsequent dismissal for failing to post the security.
Unlike a §391.3 order, the pre-filing order under §391.7 is an injunction, and thus appealable, Rivera said.
“In any case, we would reject Father’s challenges to the prefiling order on the merits,” the jurist wrote, because the proceedings that the court may consider, according to the statute, include “unmeritorious motions, pleading, or other papers [or] unnecessary discovery, or…other tactics that are frivolous or solely intended to cause unnecessary delay.”
That definition does not exclude contempt applications, “as distinguished from the actual hearing on the alleged contempt,” and in any event, “the contempt proceedings comprised only a few of the many attempts Father made, while acting in propria persona, to relitigate the allegations the family court had already twice determined against him,” she wrote.
In an unpublished part of the opinion, Rivera said the appeal from the §271 sanctions order was untimely.
The case is In re Marriage of Rifkin and Carty, A139484.
Rifkin was represented by attorneys Archibald Cunningham and Flor Garcia-Sepulveda. Cunningham has also been declared a vexatious litigant, and he and Rifkin are plaintiffs in a federal class action against the state judiciary, claiming the application of the vexatious litigant statutes to child custody cases violates the Due Process and Equal Protection clauses.
L. Bradley Penzotti represented Carty.
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