Thursday, May 18, 2017
C.A. Expands Prefiling Order Against Disbarred Attorney
Panel Extends Previous Order to Cover Cases Filed by Counsel
By KENNETH OFGANG, Staff Writer
A disbarred attorney who has been declared a vexatious litigant by the Los Angeles Superior Court, this district’s Court of Appeal, and the U.S. District Court for the Central District of California must obtain prefiling approval before he can sue a particular individual or her lawyer, even if he is represented by counsel, the Court of Appeal ruled yesterday.
Justice Victoria G. Chaney, writing for Div. One, said the order was necessary to protect Michele R. Clark, “her attorneys, and our courts from [Charles G.] Kinney’s abuse of the judicial process.”
The order stems from the same core dispute that led the Court of Appeal’s Div. Two to issue a prefiling order against Kinney, who had already been declared a vexatious litigant by the trial court, in 2011. Presiding Justice Roger Boren, who has since retired, said Kinney “must be stopped immediately” because he had “pursued a persistent and obsessive campaign of litigation terror against his neighbors and the City of Los Angeles.”
The “campaign” began after Kinney and Kimberly Jean Kempton bought a house in Silver Lake from Clark in 2005. They began filing lawsuits the next year, naming Clark, their new neighbors, the city, and the brokers who represented Clark as defendants, ultimately losing all six actions.
Kinney represented himself and Kempton in all of the suits.
As summarized on the State Bar website, in an explanation of Kinney’s disbarment last year:
“Though he repeatedly lost the cases and was slapped with thousands of dollars in sanctions and reprimands, Kinney and Kempton repeatedly appealed each case unsuccessfully. As a result, the neighbors were forced to spend thousands of dollars defending the suits and lived under constant fear and stress.”
Yesterday’s ruling arose out of an action brought against Kempton and Kinney, in which they cross-complained against Clark, alleging unmerchantable title. Clark’s demurrer to the cross-complaint was sustained, and the judgment was affirmed on appeal in 2008.
Also in 2008, Clark was awarded more than $9,000 in attorney fees based on the contract for sale of the property, and the fee award was also affirmed. At the time, the parties were still litigating Kinney and Kempton’s suit alleging fraud in the sale of the property, leading to the Superior Court’s 2008 declaration that Kinney was a vexatious litigant, following which he dismissed himself from the complaint but continue to represent Kempton.
That case went to the Court of Appeal as well, leading to Div. Two’s 2011 order requiring that Kinney obtain prefiling approval for any action filed by him in his own name or in Kempton’s. Boren noted that Kinney had lost 16 such cases in the Court of Appeal in four years, including 10 in three different divisions in this district, all related to what the court referred to as the Fernwood property.
The fraud case was ultimately dismissed after Kempton was declared a vexatious litigant and failed to post security. Clark obtained a fee award in that case, in 2012, and successfully defended it on appeal.
Clark’s effort to enforce the 2008 fee award was resisted by Kinney, Chaney explained yesterday, who claimed that funds levied on actually belonged to his mother’s trust and estate. When the trial court ruled against him, an appeal was brought with Kinney listed as counsel for the trust and estate.
The appeal was dismissed in 2014 on the ground that the trust and estate were not parties and did not seek intervention, and thus lacked standing to appeal The trial judge, in the meantime, awarded Clark additional fees for her efforts to enforce the fee award; the appeal of that award was filed by attorneys for Kinney, Judith Kempton—Kimberly Kempton’s executor—and Kinney’s mother’s estate.
As to Kinney, the Court of Appeal affirmed; as to the others, it dismissed for lack of standing. Similar efforts to resist other fee awards, in which Kinney and the others were represented by counsel, met with similar results, including yesterday’s dismissal, as frivolous, of a 2015 order awarding Clark more than $22,000 in additional fees and costs for successfully defending the appeal of the first fee award.
Kinney, Chaney noted, did not challenge Clark’s entitlement to attorney fees under the contract, nor the reasonableness of the amount, instead arguing that the courts lost all jurisdiction to award her fees after she declared bankruptcy in 2010. The argument is frivolous, the justice said, because the original fee award was made before she declared bankruptcy and all of her efforts to enforce it occurred after the bankruptcy judge granted her a discharge and an order permitting her to pursue collection from Kinney in state court.
Chaney further noted that Kinney has made the same jurisdictional argument before the bankruptcy judge, the Ninth Circuit, and a federal district judge, all of which have ruled that the matter must be resolved under state law and in state court.
The justice rejected Kinney’s argument that the court cannot expand a prefiling order to include suits filed by counsel. She cited the case of attorney/vexatious litigant Liang Houh-Shieh, against whom an expanded prefilng order was upheld by the Court of Appeal on the ground that his attorneys of record were “mere puppets” who were willing “to pursue unmeritorious or frivolous matters” in violation of their ethical duties.
She also cited the court’s “inherent powers to control the administration of justice and prevent abuse of the judicial process.”
“The attorneys who have filed appeals on behalf of Kinney in the Fernwood property litigation since Division Two imposed the prefiling order (Nina Ringgold and William Rubendall) have acted as puppets for Kinney, asserting the same meritless arguments Kinney previously asserted on his own behalf. They disregard prior, final state and federal court decisions that have rejected these recycled arguments….”
The court also awarded Clark $10,000 in sanctions for the frivolous appeal, payable by Kinney, saying it would give Rubendall “the benefit of the doubt on this appeal.” It also directed that a copy of the opinion be sent to the State Bar, for its consideration in the event Kinney seeks reinstatement.
Neither Ringgold nor Rubendall could be reached for comment late yesterday.
The case is Kinney v. Clark, B265267.
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