Filed 6/27/13 Horspool v. Updike CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



WILLIAM F. HORSPOOL,

         Plaintiff and Appellant,                                        E054139

v.                                                                       (Super.Ct.No. RIC10021157)

MARGARET UPDIKE as Co-Trustee, etc.                                      OPINION
et al.

         Defendants and Respondents.



         APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson

and Sharon J. Waters, Judges.1 Affirmed.

         William F. Horspool, in pro. per., for Plaintiff and Appellant.

         Fullerton, Lemann, Schaefer & Dominick, Thomas W. Dominick and Amar M.

Hatti for Defendants and Respondents.




         1
         Judge Jackson entered the order determining plaintiff to be a vexatious litigant
and ordering him to post security. Judge Waters entered the judgment of dismissal.


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                                    I. INTRODUCTION

       Plaintiff and appellant William F. Horspool2 appeals from the dismissal with

prejudice of his complaint for the alleged conversion of personal property following his

eviction from a home in Riverside that had belonged to his father, Raymond P. Horspool,

Sr., after William3 was found to be a vexatious litigant and failed to post a bond for

expected attorney fees to defend the action. Defendants and respondents Margaret

Updike and J. David Horspool are William’s siblings; J. David was the trustee of

Raymond’s living trust, and Updike was his court-appointed conservator.4

       William contends: (1) the trial court lacked jurisdiction because an automatic

bankruptcy stay was in effect when the trial court issued its order declaring him to be a

vexatious litigant; (2) the evidence was insufficient to support the trial court’s

determination that he was a vexatious litigant; and (3) defendant’s counsel submitted

perjured evidence and made misstatements to the trial court. We find no error.



       2 In October 2011, we observed: “The Horspool family is well known to this
court by virtue of numerous appeals and writ proceedings stemming from the inability of
various family members to cooperate and agree in conservatorship proceedings involving
the family patriarch, Raymond P. Horspool, Sr., and from various disputes over property
issues. (E.g., case Nos. E045688, E050097, E047160, E046041, E048232, E048539,
E045688.)” (Horspool v. Horspool (Oct. 6, 2011, E050166 [nonpub. opn.].) Since that
time, even more cases have come before us. (E.g., case Nos. E051016, E051550,
E053605.)

       3   Because some parties share a common surname, we will refer to them herein by
their first names for clarity and convenience, and not intending any disrespect.

       4 Raymond is now deceased. The conservatorship is closed, and any remaining
assets were distributed to his trust.

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       Defendants contend this appeal should be dismissed because William failed to

obtain permission from the presiding justice of this court before proceeding with the

appeal in propria persona after this court relieved his appellate counsel. We conclude

dismissal of the appeal is not an available remedy.

       The facts and procedural background are set forth in the discussion of the issues

for which they relate.

                                    II. DISCUSSION

       A. Trial Court Jurisdiction

       William contends the trial court lacked jurisdiction because an automatic

bankruptcy stay was in effect when the trial court issued its order declaring him to be a

vexatious litigant.

               1. Additional Background

       On November 17, 2010, defendants filed a motion to have William declared a

vexatious litigant. On November 30, William lodged an “Order On Reopening Chapter 7

Bankruptcy Case” in the bankruptcy court. On December 15, he filed a notice of stay in

the trial court based on that order. However, the copy of the order included in our record

on appeal is unsigned. Without citation to the record, William asserts that the order was

“signed and filed on December 1, 2012,[5] and entered on December 2, 2010.”

       On February 25, 2011, defendants filed a notice of entry of supplemental comfort

order in bankruptcy court. The order, dated and filed on February 23 and entered on


       5   We assume he meant 2010.

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February 24, specifically states that the automatic stay does not apply to case No.

RIC 10021157.

       On March 7, 2011, the trial court held a hearing on defendants’ motion, took the

matter under submission, and entered a minute order granting the motion. The court

issued a formal order on March 24, and notice of entry of the motion was filed on April 4.

The order declared William to be a vexatious litigant, ordered him to post a $100,000

bond, and stated he was subject to a prefiling order for future litigation.

              2. Analysis

       Under federal bankruptcy statute, the filing of a bankruptcy petition “operates as a

stay, applicable to all entities,” of “the commencement or continuation . . . of a judicial

. . . action or proceeding against the debtor that was or could have been commenced

before the commencement of the case under this title, or to recover a claim against the

debtor that arose before the commencement of the case under this title[.]” (11 U.S.C.

§ 362(a)(1).) Rule 4001 of the Federal Rules of Bankruptcy Procedure provides: “(3)

Stay of Order. An order granting a motion for relief from an automatic stay made in

accordance with Rule 4001(a)(1) is stayed until the expiration of 14 days after the entry

of the order, unless the court orders otherwise.” (Fed. Rules Bankruptcy Proc., rule

4001(a)(1).) William argues the stay under that rule continued in effect until 14 days

after the entry of the February 24, 2011, order granting relief from the stay, or until

March 11, 2011. He contends that the trial court’s order was therefore void because it

was taken in violation of the stay. (Franklin Sav. Ass’n v. Office of Thrift Supervision

(10th Cir. 1994) 31 F.3d 1020, 1022.)

                                              4
       As noted above, however, the bankruptcy stay under 11 U.S.C. section 362 stays

actions “against the debtor” seeking to recover items that have become property of the

bankruptcy estate. (11 U.S.C. § 362(a)(1).) “The policy behind the automatic stay is to

preserve the status quo, protecting “the estate from being depleted by creditors’ lawsuits

and seizures of property in order to provide the debtor breathing room to reorganize.’

[Citation.] Neither the language of § 362 nor the policy behind the automatic stay

requires the stay of actions brought by the debtor. [Citation.] Nor does the stay ‘prohibit

a defendant in an action brought by a plaintiff/debtor from defending itself in that action.’

[Citation.]” (See, e.g., Copeland v. Kandi (In re Copeland) (Bankr. W.D. Wash. 2010)

441 B.R. 352, 360-361 [2010 Bankr. LEXIS 4130].)

       In the current action, William was plaintiff. By its terms, therefore, the statute did

not apply to his action, and no automatic stay took effect. We conclude the trial court

had jurisdiction to rule on defendants’ motion.

       B. Sufficiency of Evidence

       William next contends the evidence was insufficient to support the trial court’s

order declaring him to be a vexatious litigant.

              1. Standard of Review

       The trial court exercises discretion in determining whether a person is a vexatious

litigant, and we uphold the trial court’s determination if substantial evidence supports it.

(Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219 (Bravo). We presume the trial court’s

order is correct, and we imply findings necessary to support it. (Ibid.)



                                              5
              2. Analysis

       The trial court found that William was a vexatious litigant under both Probate

Code section 1970 and Code of Civil Procedure section 391, subdivision (b)(1). Probate

Code section 1970 provides: “Notwithstanding Section 391 of the Code of Civil

Procedure, if a person other than the conservatee files a petition for termination of the

conservatorship, or instruction to the conservator, that is unmeritorious or intended to

harass or annoy the conservator, and the person has previously filed pleadings in the

conservatorship proceedings that were unmeritorious or intended to harass or annoy the

conservator, the petition shall be grounds for the court to determine that the person is a

vexatious litigant . . . .” Code of Civil Procedure section 391 defines as a “vexatious

litigant” a person who “(3) 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.” (Code Civ. Proc., § 391, subd. (b)(3).)

       “Any determination that a litigant is vexatious must comport with the intent and

spirit of the vexatious litigant statute. The purpose of which is to address the problem

created by the persistent and obsessive litigant who constantly has pending a number of

groundless actions and whose conduct causes serious financial results to the unfortunate

objects of his or her attacks and places an unreasonable burden on the courts. [Citations.]

Therefore, to find that a litigant is vexatious, the trial court must conclude that the

litigant[’]s actions are unreasonably impacting the objects of appellant’s actions and the



                                               6
courts as contemplated by the statute.” (Morton v. Wagner (2007) 156 Cal.App.4th 963,

970-971 (Morton).)

       Citing Morton, William argues that Code of Civil Procedure section 391,

subdivision (b)(3) requires a showing that a person filed “dozens” of meritless motions.

However, “[w]hat constitutes ‘repeatedly’ and ‘unmeritorious’ under subdivision (b)(3),

in any given case, is left to the sound discretion of the trial court.” (Morton, supra, 156

Cal.App.4th at p. 971.) In Morton, the court determined that the filing of three motions

in three years relating to two separate judgments was insufficient to meet the standard of

repeated filings. (Id. at p. 972.) The court noted, “While there is no bright-line rule as to

what constitutes ‘repeatedly,’ most cases affirming the vexatious litigant designation

involve situations where litigants have filed dozens of motions either during the pendency

of an action or relating to the same judgment.” (Ibid.) The Morton court cited only one

case to support that statement, specifically, Bravo, supra, 99 Cal.App.4th at p. 225, in

which the litigant filed about 20 motions during the same action, some of which were

identical to motions previously denied.

       To support their motion to have William declared a vexatious litigant, defendants

requested the trial court to take judicial notice of some 34 pleadings, motions, and court

orders. Many of those matters were matters initiated by defendants, and in many other

matters, William was represented by counsel. As noted above, the definition of a

“vexatious litigant” in Code of Civil Procedure section 391, subdivision (b)(3) is a person

who, “while acting in propria persona,” files repeated unmeritorious motions, pleadings,

or other papers or who conducts unnecessary discovery or engages in tactics that are

                                              7
frivolous or “solely intended to cause unnecessary delay.” In assessing the sufficiency of

the evidence to support the trial court’s ruling, we will therefore consider only those

matters initiated by William acting in propria persona. (See Holcomb v. U.S. Bank Nat.

Assn. (2005) 129 Cal.App.4th 1494, 1506.) Those matters include:

          (1) objections to the appointment of a conservator;

          (2) motion for a new trial;

          (3) petition for an order suspending the conservator’s powers;

          (4) ex parte hearing re: appointment of temporary conservator;

          (5) oral motion to stay;

          (6) untimely Code of Civil Procedure section 170.6 challenge;

          (7) dismissal of case No. E046041 in this court from an nonappealable order;

          (8) denial of petition for writ in case No. E048232;

          (9) dismissal based on abandonment of appeal in case No. E048252;

       While those nine matters are fewer than the 20 found sufficient in Bravo, they are

far more than the three motions over three years found insufficient in Morton to support a

vexatious litigant finding. Moreover, we disagree with any implication in Morton that

“dozens” of unmeritorious actions are required under Code of Civil Procedure section

391, subdivision (b)(3) before a litigant may be found vexatious. (See Morton, supra,

156 Cal.App.4th at p. 972.) Rather, as the Morton court further stated, there is no bright-

line test to guide that determination, and we look to the underlying purposes of the

statute. (Ibid.) Here, the trial court could reasonably conclude that William’s actions

unreasonably burdened other parties and courts. We therefore conclude the trial court did

                                             8
not abuse its discretion in finding that William was a vexatious litigant within the

meaning of Code of Civil Procedure section 391, subdivision (b)(3).

       C. Misrepresentations to the Court

       William contends defendant’s counsel submitted perjured evidence and made

misstatements to the trial court. It is unnecessary for us to examine whether or not any

factual basis for that contention exists, because William has failed to show how such

false evidence or misrepresentations would justify reversal of the trial court’s orders.

       D. Failure to Obtain Approval of Presiding Justice

       William was represented by counsel when the notice of appeal was filed. This

court later granted counsel’s request to be relieved, and William has since then

represented himself. Defendants argue that he was required to obtain prior approval of

the presiding justice before proceeding in propria persona, and because he failed to do so,

we should dismiss the appeal.

       In Shalant v. Girardi (2011) 51 Cal.4th 1164, 1176, the Supreme Court held that

when a vexatious litigant’s counsel has withdrawn, and the vexatious litigant continues

the action in propria persona, the opposing party may move for an order requiring the

posting of security, and if security is ordered but not furnished, the action should be

dismissed. Defendants did not move for the posting of security; therefore, dismissal is

not an available remedy. (Ibid.)




                                              9
                                   III. DISPOSITION

      The judgment is affirmed. Costs on appeal shall be awarded to defendants and

respondents.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                           HOLLENHORST
                                                                    Acting P. J.
We concur:

      MCKINSTER
                              J.

      RICHLI
                              J.




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