Filed 3/6/15
                      CERTIFIED FOR PARTIAL PUBLICATION*

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                     DIVISION FOUR


In re Marriage of RICHARD A. RIFKIN
and KIMBERLY DAWN CARTY
___________________________________                 A139484

RICHARD A. RIFKIN,                                  (San Francisco City & County
        Appellant,                                  Super. Ct. No. FDI11773974)
v.
KIMBERLY DAWN CARTY,
        Respondent.


        This appeal arises from a long and contentious child custody dispute between
appellant Richard Rifkin (Father) and respondent Kimberly Carty (Mother).1 In
September 2012, the family court issued an order declaring Father a vexatious litigant
and prohibiting him from filing any new litigation in propria persona without first
obtaining leave of court (the prefiling order), and ordered him to pay some of Mother’s
attorney fees. It appears that Father filed an appeal of this order but failed to pursue it.
Father later applied to vacate the prefiling order and remove his name from the Judicial
*
 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II, C.
        1
          Mother has not filed a respondent’s brief. “However, we do not treat the failure
to file a respondent’s brief as a ‘default’ (i.e., an admission of error) but independently
examine the record and reverse only if prejudicial error is found.” (Kennedy v. Eldridge
(2011) 201 Cal.App.4th 1197, 1203; see also In re Marriage of Riddle (2005) 125
Cal.App.4th 1075, 1078, fn. 1 [in absence of respondent’s brief, appellate court examines
record, appellant’s brief, and any oral argument to see if it supports claim of error].)
Father, the appellant, still bears the affirmative burden to show error. (Smith v. Smith
(2012) 208 Cal.App.4th 1074, 1077-1078.)

                                               1
Council’s list of vexatious litigants, and the family court denied his application in April
2013. Father has appealed from this order.
       Father contends the vexatious litigant prefiling order was improper because
Mother failed to show Father had no reasonable probability of prevailing in the custody
case, that in concluding he was a vexatious litigant, the family court improperly took into
consideration applications he had made to hold Mother in contempt, and that the family
court erred in awarding attorney fees to Mother. We conclude Father’s challenges are
untimely because they should have been raised in an appeal from the September 2012
prefiling order, rather than from the later order denying his application to vacate that
order. However, because there is at least an arguable conflict in the law on the question
of whether a prefiling order is appealable, we also explain that even if the merits of
Father’s challenges to the prefiling order were properly before us, we would reject them.
                                      I.   BACKGROUND
   A. The Vexatious Litigant Ruling
       This action began in Marin County, apparently in 2009, and was transferred to San
Francisco County, Mother’s place of residence, in November 2010.
        After extensive proceedings in San Francisco, Mother filed a request for the court
to treat Father as a vexatious litigant. (Code Civ. Proc.,2 § 391 et seq.) The family court
granted the request. In doing so, it summarized and accepted Mother’s characterization
of the relevant facts.
       As the court explained in its September 14, 2012 “Case Resolution Order # 8,”
Mother’s request relied on the following facts: In December 2009, a temporary
restraining order was entered against Father in which Mother was granted temporary sole
legal and physical custody of the parties’ child, then just over one year old. Father—then
represented by counsel—responded with an ex parte request asserting that Mother was a
risk to abduct, abuse, or neglect their child; he also accused Mother of fraud. In January
2010, the Marin County Superior Court rejected the allegations that Mother posed a risk


       2
           All undesignated statutory references are to the Code of Civil Procedure.

                                               2
of abducting, abusing, and neglecting the child. In April 2010, Father became self-
represented. On June 23, 2010, Father filed a motion again asserting Mother was a risk
to abduct, abuse, and neglect the parties’ child as well as Mother’s children from a
previous marriage, and again accusing Mother of fraud. On August 5, 2010, Father
objected to a recommendation of the Marin Family Court Service regarding custody and
visitation, and once again asserted Mother was a risk to abduct, abuse, and neglect their
child and her two other children. On August 9, 2010 after an evidentiary hearing, the
Marin County Superior Court rejected Father’s allegations and entered a restraining order
against him.
       Despite having had these issues decided against him, Father thereafter made the
same allegations on 15 occasions: on October 14, 2010, in opposition to the report of
Marin’s Family Court Services; on March 10, 2011, in an ex parte application to modify
custody and visitation, which was denied; on April 13, 2011, in an ex parte application to
modify custody and visitation, which was denied; on July 7, 2011, in an order to show
cause to modify custody and visitation; on July 28, 2011, in an ex parte request to modify
custody and visitation, which was again denied; on August 1, 2011, in filings seeking to
hold Mother in contempt; on August 5, 2011, in an ex parte application to change the
location for exchanges of the child; on September 27, 2011, in an ex parte application to
modify custody and visitation; on October 27, 2011, in an ex parte application and
declaration of contempt; on November 17, 2011, in an ex parte application regarding
contempt; on January 3, 2012, in connection with additional contempt allegations; on
February 22, 2012, in connection with another contempt allegation; on April 4, 2012,
while seeking a temporary restraining order against Mother’s older son; on May 23,
2012, in an ex parte application to modify custody and visitation; and on June 11, 2012,
in yet another ex parte application to modify custody and visitation.3 The court explained




       3
        The record Father has provided does not include these filings, and Father does
not dispute the family court’s characterization of them.


                                             3
that Father had warned Mother that unless she agreed to his terms for child custody and
removal of the restraining order, he would, as the court put it, “grind her down.”4
       The family court found Father to be a vexatious litigant under section 391,
subdivision (b)(3). Because the parties had agreed to change venue to Los Angeles
County, where they would both soon be living, the court found that Father was subject to
the prefiling requirements of section 391.7, to be implemented by the Los Angeles
County Superior Court. Pursuant to Family Code, section 271, the court awarded Mother
attorney fees in the amount of $24,196.96.
   B. Application to Lift Prefiling Order
       Seven months later, Father filed an application to lift the prefiling order. At the
time, he was again represented by counsel. In his motion, he argued the family court’s
original vexatious litigant order had been based on a misunderstanding of the relevant
facts and that the vexatious litigant statutory scheme was unconstitutionally vague. He
also argued the family court had improperly relied on his contempt motions because they
were criminal matters that were not subject to the vexatious litigant statutes, and that the
court improperly imposed attorney fees.
       The family court denied the application. This appeal ensued.
                                       II. DISCUSSION
   A. Statutory Background
       “The vexatious litigant statutes (§§ 391-[391.8]) 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. [Citation.] Sections 391 to 391.6 were enacted in 1963, while section
391.7 . . . was added in 1990. (Stats. 1963, ch. 1471, § 1, pp. 3038-3039; Stats. 1990,
ch. 621, § 3, pp. 3072-3073.) [¶] ‘Vexatious litigant’ is defined in section 391,

       4
         This conclusion was based on a July 11, 2011 communication in which Father
promised “ ‘an all-out war’ ” if Mother did not agree to his terms. In the communication,
Father told Mother what his “arsenal” was: the documents he had already filed and the
possibility of further litigation on collateral issues, leading to “[t]otal annihilation of both
sides.”

                                               4
subdivision (b) as a person who has, while acting in propria persona, initiated or
prosecuted numerous meritless litigations, relitigated or attempted to relitigate matters
previously determined against him or her, repeatedly pursued unmeritorious or frivolous
tactics in litigation, or who has previously been declared a vexatious litigant in a related
action.” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169-1170 (Shalant).)
       The statutory scheme provides two sets of remedies. First, in pending litigation,
“the defendant may move for an order requiring the plaintiff to furnish security on the
ground the plaintiff is a vexatious litigant and has no reasonable probability of prevailing
against the moving defendant.” (Shalant, supra, 51 Cal.4th at p. 1170; § 391.1.) If the
court finds in the defendant’s favor on these points, it orders the plaintiff to furnish
security in an amount fixed by the court. (§ 391.3, subd. (a).) Failure to provide the
security is grounds for dismissal. (§ 391.4.)
       The Legislature added a second means to counter misuse of the system in 1990,
when it enacted section 391.7. (Shalant, supra, 51 Cal.4th at p. 1170.) “ ‘Section 391.7
“operates beyond the pending case” and authorizes a court to enter a “prefiling order”
that prohibits a vexatious litigant from filing any new litigation in propria persona
without first obtaining permission from the presiding judge. [Citation.]’ . . . [¶] Section
391.7 did not displace the remedy provided in sections 391.1 to 391.6 for defendants in
pending actions; by its terms it operates ‘[i]n addition to any other relief provided in this
title . . . .’ (§ 391.7, subd. (a).) Rather, it added a powerful new tool designed ‘to
preclude the initiation of meritless lawsuits and their attendant expenditures of time and
costs.’ [Citation.]” (Ibid.)
       For purposes of the vexatious litigant statutes in general, the term “ ‘[l]itigation’ ”
means “any civil action or proceeding, commenced, maintained or pending in any state or
federal court.” (§ 391, subd. (a).) The statute governing prefiling orders, however,
provides an additional definition of the term: for purposes of section 391.7, “ ‘litigation’
includes any petition, application, or motion other than a discovery motion, in a
proceeding under the Family Code or Probate Code, for any order.” (§ 391.7, subd. (d).)



                                                5
       Section 391.8, enacted in 2011, allows a vexatious litigant subject to a prefiling
order to apply to vacate the prefiling order and remove his or her name from the Judicial
Council’s list of vexatious litigants. (§ 391.8, subd. (a); Stats. 2011, ch. 49, § 2.) The
court may grant the application “upon a showing of a material change in the facts upon
which the order was granted and that the ends of justice would be served by vacating the
order.” (§ 391.8, subd. (c).)
   B. Propriety of Prefiling Order
       Although this appeal is from the order denying Father’s application to vacate the
prefiling order, Father’s challenges are to the propriety of the prefiling order itself. He
argues the order was improper for two reasons: (1) Mother failed to show he had no
probability of prevailing in the litigation, and (2) the civil contempt applications he
brought were criminal matters and accordingly should not have been considered in
determining whether he had repeatedly engaged in conduct that fell within the ambit of
the vexatious litigant statutes.
       “ ‘A court exercises its discretion in determining whether a person is a vexatious
litigant. [Citation.] We uphold the court’s ruling if it is supported by substantial
evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is
correct and imply findings necessary to support the judgment.’ [Citation.] Questions of
statutory interpretation, however, we review de novo. [Citation.]” (Holcomb v. U.S.
Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1498-1499.)
       During the hearing on Father’s petition to vacate the prefiling order, the family
court raised the concern that Father’s challenge to the order should have been raised in an
appeal from that order.5 In ruling against Father, the court first noted that Father did not
make a motion for reconsideration or pursue his appeal of the prefiling order. The court
went on to deny the motion to vacate because Father had failed to show a material change


       5
         Father’s counsel acknowledged at the hearing that Father had filed an appeal of
the prefiling order. It appears that the appeal was dismissed when Father failed to pay the
filing fee and case information statement. (Richard Rifkin v. Kimberly Carty, A136681.)


                                              6
of fact or that the ends of justice would be served by vacating the order, as required by
section 391.8, subdivision (c).
       It is well established that an appellate court may not review a decision or order
from which an appeal could previously have been taken. (In re Marriage of Weiss (1996)
42 Cal.App.4th 106, 119; § 906.)
       Father contends the prefiling order was not directly appealable and that he may
raise his challenges to it in an appeal from the denial of his motion to vacate the order.
He relies for this point on the rule that “[a]n order determining a party to be a vexatious
litigant and requiring the posting of security under section 391.3 is not directly
appealable. But if the plaintiff subsequently fails to furnish security, an appeal lies from
the subsequent order or judgment or dismissal that follows under section 391.4.” (Golin
v. Allenby (2010) 190 Cal.App.4th 616, 635 (Golin); see also Childs v. PaineWebber
Incorporated (1994) 29 Cal.App.4th 982, 985, fn. 1, 988, fn. 2.) The order at issue here,
however, did not require Father to post security in the pending action pursuant to section
391.3, but rather subjected him to the prefiling requirements of section 391.7, under
which he was prohibited from filing any new litigation in propria persona without first
obtaining leave of court. As explained in Luckett v. Panos (2008) 161 Cal.App.4th 77,
90, footnote omitted (Luckett), “a prefiling order against a vexatious litigant meets the
definition of an injunction.” The court in Luckett stated: “[T]here is no question that the
prefiling order contemplated by section 391.7, subdivision (a) is an injunction. It is,
literally, an order requiring [a party] to refrain from doing a particular act—filing any
new litigation without certain permission. It is punishable by contempt. And it is
sufficiently definite to be punishable by contempt.” (Luckett, supra, 161 Cal.App.4th at
p. 85; see also City of Santa Cruz v. Patel (2007) 155 Cal.App.4th 234, 242 [normal rule
is that injunctions and judgments that form the basis for contempt sanctions are




                                              7
appealable].) Under section 904.1, subdivision (a)(6), an order granting an injunction is
appealable.6
       Dictum in In re Bittaker (1997) 55 Cal.App.4th 1004, 1008, and language in
People v. Harrison (2001) 92 Cal.App.4th 780, 784-785 & fn. 6 (Harrison), suggest that
an order declaring a party a vexatious litigant and imposing a prefiling order is
nonappealable. These cases, however, were decided before the court in Luckett held that
a prefiling order constituted an injunction for purposes of section 904.1, subdivision
(a)(6). We agree with the reasoning of Luckett, and conclude that by failing to pursue his
appeal of the prefiling order, Father lost his right to challenge it.
       In any case, we would reject Father’s challenges to the prefiling order on the
merits. 7 He first argues the order was improper because Mother failed to show he had no
probability of prevailing in the custody dispute. The requirement that a court find a
litigant has no reasonable probability of prevailing in the litigation applies where the
court orders the litigant to furnish security in an action. (§§ 391, 391.3, subd. (a); Golin,
supra, 190 Cal.App.4th at p. 640.) Section 391.7, on the other hand, does not require the
court to find there is no reasonable probability the plaintiff will prevail in the litigation
before making a prefiling order. Indeed, such a finding would not be feasible, since the
prefiling order acts prospectively to prohibit a party from filing new litigation, and a
court would not be able to predict whether any future pleadings filed by a party would
have merit.



       6
          The question in Luckett was whether the appellate court had jurisdiction over the
denial of a request to lift the prefiling order. The court concluded that it had jurisdiction
under section 904.1, subdivision (a)(6). (Luckett, supra, 161 Cal.App.4th at pp. 89-90.)
But in Luckett, the appellant challenged the substance of the order denying the request to
lift the prefiling order; here, Father challenges the original prefiling order itself. (Id. at
pp. 90-92.)
       7
         Because we reach this conclusion, we need not consider Father’s contention that
his First Amendment rights would be infringed if he were not permitted to raise his
challenges to the prefiling order.


                                               8
       Father also argues the family court erred in taking into account the contempt
matters he filed because vexatious litigant statutes apply only to civil actions. (§ 391,
subd. (a); see also McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1219
[“ ‘Litigation’ for purposes of vexatious litigant requirements encompasses civil trials
and special proceedings . . .”].) He contends the orders to show cause seeking to hold
Mother in contempt were criminal matters that fell outside the scope of the vexatious
litigant statutes and therefore should not have been considered in deciding whether he
was a vexatious litigant. For this proposition, he relies on People v. Gonzalez (1996) 12
Cal.4th 804, 816, which states that because a contemner may be punished with jail time
and a fine, an order to show cause regarding an alleged act of contempt “is considered
quasi-criminal, and the defendant possesses some of the rights of a criminal defendant.”
(See § 1218, subd. (a).)
       We are unpersuaded that the family court could not properly take into account the
orders to show cause in determining whether Father was a vexatious litigant. Section
391, subdivision (b)(3), upon which the family court based its ruling, provides that a
person who does the following is a vexatious litigant: “In any litigation while acting in
propria persona, 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.” Nothing in this definition excludes motions
seeking an order to show cause for contempt—as distinguished from the actual hearing
on the alleged contempt—which appear to fall within both the letter and the spirit of the
statutory scheme. The family court found they were part of Father’s campaign to “grind
[Mother] down” and cause unnecessary delay. (See Golin, supra, 190 Cal.App.4th at
p. 639.) In any case, it appears that the contempt proceedings comprised only a few of
the many attempts Father made, while acting in propria persona, to relitigate the




                                              9
allegations the family court had already twice determined against him by August 2010.
We see neither error nor prejudice.8
   C. Attorney Fees
       The trial court awarded Mother attorney fees pursuant to Family Code, section
271, which authorizes a family court to award attorney fees based on “the extent to which
the conduct of each party or attorney furthers or frustrates the policy of the law to
promote settlement of litigation and, where possible, to reduce the cost of litigation by
encouraging cooperation between the parties and attorneys.” In making its award, the
trial court stated that Father had “engage[d] in scorched earth litigation replete with
unmeritorious motions and requests for relief,” and that “[i]If ever a case called for the
invocation of [Family Code, section 271], this is the case. [Father’s] multiple contempt
motions lacked merit, [and] were filed to delay resolution of the important issue related to
the move away . . . .” The court held Father responsible for the payment of all fees
incurred by one of Mother’s attorneys in representing her in defense of the contempt
proceedings and related issues, as well as “certain fees based on the work of” another
attorney.
       On appeal, Father argues that, “[i]n essence,” the family court by its ruling held
him in contempt of court for filing meritless affidavits of contempt. Therefore, he argues,
the court was limited to the sanctions authorized by section 1218, subdivision (a), which
provides that a person found guilty of contempt may be fined no more than $1,000 and be
imprisoned for no more than five days. He contends the court lacked authority to award
fees under section 271 of the Family Code.
       This contention is not properly before us. The order directing Father to pay
attorney fees was appealable. (Banning v. Newdow (2004) 119 Cal.App.4th 438, 444; In
re Marriage of Weiss, supra, 42 Cal.App.4th at p. 119.) It was made on September 14,

       8
        Father makes no argument that there had been a “material change in the facts
upon which the order was granted,” as required by section 391.8, subdivision (c), before a
court vacates a prefiling order. He has therefore provided no grounds for us to reverse
the order before us on appeal—the order denying his application to vacate the prefiling
order and remove his name from the Judicial Council’s vexatious litigant list.

                                             10
2012, as part of the order in which the court imposed the prefiling order, and Father did
not pursue his appeal of the order. As we have already explained, state law does not
allow us to review “ ‘any decision or order from which an appeal might previously have
been taken.’ ” (In re Marriage of Weiss, supra, 42 Cal.App.4th at p. 119.) In any case,
nothing in the record supports Father’s contention that “[i]n essence” the family court
found him in contempt.
                                   III.    DISPOSITION
       The order appealed from is affirmed.




                                            11
                                 _________________________
                                 Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




A139484


                            12
Trial Court:               San Francisco Superior Court



Trial Judge:               Hon. Linda Colfax



Counsel for Appellant:     Archibald Cunningham

                           Flora Garcia-Sepulveda



Counsel for Respondents:   Kimberly Dawn Carty

                           L. Bailey Penzotti




Rifkin v. Carty A139484




                                    13
