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Case of the Month (from CFLR Monthly)

August 2022

A vexatious litigant continues his "reign of terror". . .


In a dismissal, the First District held that the trial court's order denying the requests of a vexatious litigant to file new litigation is not appealable as a final order or as a post-judgment order and, additionally, the appeal is frivolous.


In re Marriage of Deal

(June 21, 2022)

California Court of Appeal 1 Civ A164185 (Div 3) 80 Cal.App.5th 71, ___ Cal.Rptr.3d ___, 2022 WL 2205515, 2022 FA 2043, per Rodriguez. Alameda County: Roper, J. (Retired Judge of the Tulare Superior Court assigned by the Chief Justice), appeal dismissed. For Appellant (Thomas): Pro Per. For Respondent (Patricia): No appearance. CFLP §C.42.2.20.


Patricia and Thomas Deal were married in 1989. Patricia filed for divorce in 2001 and the marriage was dissolved in 2002. Since the dissolution of the marriage, Thomas began to represent himself. Child custody and visitation issues were tried intermittently throughout 2004, resulting in the trial court awarding Patricia sole legal and physical custody of the children with supervised visitation for Thomas. In 2005, the trial court declared Thomas a vexatious litigant and issued a prefiling order prohibiting him from filing new motions or litigation when representing himself without first obtaining leave of the presiding judge. The trial court also ordered Thomas to pay $17,786 toward attorney fees that Patricia incurred in defending two civil actions that Thomas had filed against her "'based upon the same facts at issue in the ongoing custody dispute between the parties.'" Thomas appealed, but the First District affirmed in an unpublished opinion. In re Marriage of Deal (1/16/07) 2007 WL 98484.


Thomas makes implicit threats against judges. . .
Thomas continued to file "innumerable motions, applications, and other requests" and in 2018, the trial court reaffirmed its 2005 order finding Thomas a vexatious litigant. Thomas appealed that order and the First District affirmed. In a published opinion, the justices took Thomas to task for filing an appellate brief containing "'implicit threats against various members of the California judiciary and State Bar.'" For example, Thomas stated in his brief that he is praying for the deaths of certain judges and their family members, specifically stating that he hopes "'a tree branch…breaks the neck of the young boy in the front yard, or a drunk driver tee bones [sic] the right side door at high speed while the daughter is returning from her senior prom. Each of these would be, of course, "accidents" and can cause a great deal of grief….'" The justices warned Thomas that further "'use of the appellate process to threaten, however, implicitly, our state's lawyers and judges' would 'result in an order of sanctions.'" In re Marriage of Deal (2/24/20) 45 Cal.App.5th 613, 259 Cal.Rptr.3d 1.


Thomas tries again. . .
In 2021, Thomas filed seven requests to file new litigation as well as requests to file various motions. Due in part to Thomas's complaint that there is a conspiracy against him by judicial officers of the Alameda County Superior Court, Thomas's requests were assigned to a retired judge from Tulare County. At a hearing on these requests, Thomas asked the trial court to "'overturn the prior rulings that had been made in the [divorce] case.'" The trial court denied Thomas's requests, finding it "'abundantly clear that there are no issues remaining to be decided in this case.'" The trial court also denied Thomas's requests to file new litigation, finding them just another method for Thomas to attempt to overturn prior rulings and have the dissolution judgments "'declared void.'" Thomas petitioned the First District for writ relief and filed a notice of appeal, but the First District dismissed Thomas's appeal.

The justices first noted that an order denying a vexatious litigant's request to file new litigation is not appealable as a post-judgment order per CCP §904.1(a)(2). More specifically, they noted that to be appealable under CCP §904.1(a)(2), a post-judgment order must follow a final judgment as well as satisfy two additional requirements: (1) the issues raised by the appeal from the order must be different from those arising from an appeal from the judgment; and (2) the order must either affect the judgment or relate to it by enforcing it or staying its execution. Here, neither requirement was satisfied. First, Thomas is using his appeal to litigate the validity of the dissolution judgments. And second, the issues raised in Thomas's appeal do not affect the dissolution judgments.

Next, the justices found that the order is not appealable as an injunction per CCP §904.1(a)(6). Although a prefiling order imposed per CCP §391.7 is injunctive in nature and, thus, appealable per CCP §904.1(a)(6), Thomas appealed the order denying his request for permission to file new litigation and not the initial prefiling order. And the panel reasoned that to construe an order denying permission to file new litigation as an injunction would be contrary to the policy underlying the vexatious litigant statutory scheme.

The panel held that an additional reason to dismiss Thomas's appeal is that it is both objectively and subjectively frivolous. It is objectively frivolous since Thomas "fail[ed] to present an intelligible argument challenging the appealed order" and instead "level[ed] ad hominem attacks on Patricia" and several other judicial officers. This includes baseless accusations against specific judges that they were involved in corruption and criminal activity. Additionally, Thomas continues to dispute the validity of the dissolution judgment as well as the vexatious litigant designation even though they were affirmed on appeal as recently as 2020. The appeal is subjectively frivolous since Thomas's appeal is "wholly without merit" and has been carried out by Thomas with a "'war-like mentality' toward everyone 'involved in this case.'"

For these foregoing reasons, the First District dismissed Thomas's appeal.





In its 2007 unpublished opinion, the First District noted that in the two years preceding its decision, Thomas had filed 32 motions and/or orders to show cause. These included nine orders to show cause for contempt, including four against court-appointed expert witnesses and mental health professionals. The two civil actions that Thomas filed against Patricia included causes of action for battery, child abduction, destruction of property, improper punishment of minor children, and violation of family court orders. Both lawsuits were dismissed. Thomas's litigation activity arising from the family law proceedings has resulted in five appellate opinions-published and unpublished-that were each decided squarely against Thomas. See also 2020 FA 1926.


Library References
11 Witkin, Summary of Cal. Law (11th ed. 2022) Marriage, §9
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶¶1:500, 16:235.



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