Filed 9/23/15 Ciokewicz v. Friend CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



JAMES CIOKEWICZ,                                                                             C074437

                   Plaintiff, Cross-defendant and                                    (Super. Ct. No.
Appellant,                                                                     34201200117171CUFRGDS)

         v.

LESLIE FRIEND et al.,

                   Defendants, Cross-complainants and
Respondents.




         Following a bench trial, plaintiff and cross-defendant James Ciokewicz was
adjudicated a vexatious litigant pursuant to section 391 of the Code of Civil Procedure
and ordered to pay $30,000 in damages to his stepchildren, defendants and cross-
complainants Leslie Friend and Christina Edwards (Defendants), for abuse of process.
For the first time on appeal, Ciokewicz argues the judgment against him was obtained by
fraud and should therefore be set aside. We conclude that Ciokewicz has waived any


                                                             1
argument that the judgment was obtained by fraud. In any event, Ciokewicz does not
contend that the judgment was procured by extrinsic fraud sufficient to justify setting
aside the judgment, and we perceive no evidence of any such fraud in the record.
Accordingly, we will affirm the judgment.
                                    BACKGROUND
       Ciokewicz was married to Christina Allen for more than 20 years. Defendants are
Allen’s adult children.
       During their marriage, Ciokewicz and Allen moved from the Sacramento area to
Utah, where they built a home. Allen filed a petition for divorce in Utah in March 2008.
The record does not disclose the ultimate disposition of the Utah divorce proceeding;
however, Allen appears to have retained possession of the marital home in Utah.
       Following the commencement of divorce proceedings in Utah, Ciokewicz left the
state and returned to the Sacramento area. Acting in propia persona, Ciokewicz then filed
a series of actions against Allen, Defendants, and others in the Sacramento and El Dorado
County Superior Courts. These actions are briefly described below.
The Prior Actions1
       1. Case No. 08FL03566 (Ciokewicz v. Allen)
       On May 16, 2008, Ciokewicz filed a petition for dissolution of marriage from
Allen in Sacramento County Superior Court.2 Although Allen lives in Utah, Ciokewicz
also filed a request for a temporary restraining order (TRO) against her under the



1 The record is notably deficient in relevant documents from the actions described
herein. We take judicial notice of our own records in one of Ciokewicz’s prior appeals
(case No. C064273). We also take judicial notice of the register of actions for case Nos.
34-2009-00045305, 34-2010-00072589, and 34-2012-00117171. (Evid. Code, § 452,
subd. (d).)
2 For each of the actions described herein, Ciokewicz represented himself unless
otherwise indicated.

                                             2
Domestic Violence Protection Act. (Fam. Code, § 6200 et seq.) The TRO was granted,
but subsequently dissolved when Ciokewicz failed to appear for the second day of a two-
day hearing on a permanent restraining order.
       On July 10, 2008, the trial court dismissed the petition without leave to amend on
the grounds that (1) Ciokewicz (now represented by his counsel herein, Gordon G.
Bones) failed to meet the statutory residence requirements to file for dissolution (Fam.
Code, § 2320); and (2) the Utah court was first to acquire jurisdiction over the parties,
and was therefore entitled to priority (see Mungia v. Superior Court (1964)
225 Cal.App.2d 280, 283).
       Undeterred, Ciokewicz sought another TRO against Allen, which was denied.
Ultimately, Allen was forced to seek relief from the trial court, which found that
Ciokewicz, and his counsel, Bones, “continue[d] to act as though [the] matter [had] not
been dismissed.” The trial court awarded Allen $1,000 for attorneys’ fees incurred as a
result of Ciokewicz’s intransigence. On March 10, 2009, the trial court denied
Ciokewicz’s motion to set aside an order dismissing the TROs against Allen, noting that
there was no evidence that she posed a threat to him.
       2. Case No. 34-2009-00045305 (Ciokewicz v. Loya, et al.)
       On June 1, 2009, Ciokewicz filed a civil complaint against Allen and three other
individual defendants in Sacramento County Superior Court seeking damages for
defamation, fraud, interference with contract, intentional infliction of emotional distress,
elder abuse, and negligence. The complaint also asserts a conversion cause of action
against Allen based, in part, on the allegation that she borrowed money against the Utah
home she previously shared with Ciokewicz and kept the loan proceeds for herself.
       The Sacramento County Superior Court’s register of actions, of which we take
judicial notice, indicates that Allen and two of her co-defendants successfully moved to
quash service of summons, and Ciokewicz, through Bones, filed requests for dismissal



                                              3
with prejudice as to all three. The case was stayed when the remaining defendant filed a
petition for bankruptcy.
        3. Case No. PFL20090456 (Ciokewicz v. Allen)
        On June 26, 2009, Ciokewicz filed an application for a TRO against Allen in El
Dorado County Superior Court. He filed additional applications for TROs against Allen
in El Dorado County Superior Court on July 1, 2009, and September 15, 2009. He filed
an application to reissue a TRO against Allen in El Dorado County Superior Court on
October 2, 2009.
        The TRO appears to have been dissolved and the case dismissed. Ciokewicz,
through Bones, filed a notice of appeal from the judgment of dismissal. The appeal was
dismissed for failure to timely procure the record. (Cal. Rules of Court, rule 8.140.)3
        4. Case No. 34-2010-00072589 (Ciokewicz v. Friend, et al.)
        On March 10, 2010, Ciokewicz filed a civil complaint against Defendants and
Does 1-5 in Sacramento County Superior Court. The complaint alleges that Allen
borrowed $130,000 against the Utah home she previously shared with Ciokewicz,
channeled the money to Defendants, and left Ciokewicz on the hook for half of the debt.
The complaint asserts causes of action for fraud, elder abuse, conversion, negligence,
intentional infliction of emotional distress, and interference with contract, and seeks
damages in the amount of $915,000.
        Defendants answered the complaint and the parties proceeded to discovery.
During his deposition (at which he was represented by Bones), Ciokewicz was asked
whether he had any written evidence of money being transferred from Allen to
Defendants after the date of separation. Ciokewicz responded that he did not.
Defendants were also deposed in September 2011. Both testified that they had not




3   Further rule references are to the California Rules of Court.

                                               4
received any money from their mother. Immediately following the depositions,
Ciokewicz, through Bones, filed a request for dismissal without prejudice, which was
granted.
       5. Case No. 11CP00988 (Ciokewicz v. Anson)
       On December 7, 2011, Ciokewicz filed an application for a TRO against
Defendants’ attorney, Robert B. Anson, in Sacramento County Superior Court. The
application sought an order prohibiting Anson from representing Allen or Defendants.
The application was denied.
The Present Action
       On January 17, 2012, Ciokewicz filed another complaint against Defendants and
Does 1-5 in Sacramento County Superior Court. As before, the complaint alleges that
Allen borrowed $130,000 against the Utah home, channeled the money to Defendants,
and left Ciokewicz liable for half the debt. Indeed, the complaint is virtually identical to
the complaint in case No. 34-2010-00072589, which Ciokewicz had dismissed some four
months earlier.
       Defendants answered the complaint and filed a cross-complaint on February 10,
2012. We have not been provided with a copy of the cross-complaint; however, the
judgment (discussed below) indicates that the cross-complaint seeks declaratory relief, a
declaration that Ciokewicz is a vexatious litigant, and damages.
       The parties appeared for trial on April 30, 2013. During the one-day bench trial,
Ciokewicz, acting in propia persona, adduced evidence that defendant Friend owns a
home in Galt with his wife, a muffler repair business, and a racecar. Ciokewicz testified
that, in his opinion, Friend would not have been able to afford these things unless he
received money from his mother. However, Ciokewicz acknowledged on cross-
examination that he did not have any written evidence that either of the defendants
received money from their mother. Defendants both testified that they never received
any money from their mother.

                                              5
       During the trial, defense counsel walked Ciokewicz through the litigation
described above, and offered a 4-page print out of a case index search for “CIOKEWICZ,
James,” from the Sacramento County Superior Court’s website. The case index identifies
38 search results for “CIOKEWICZ, JAMES,” “CIOKEWICZ, JAMES N,” or
“CIOKEWICZ, JAMES NICOLAS” from 1971 through 2012, and one search result for
“CIOKEWICZ, JAMES N. JR.” from 2004. A number of the search results for
“CIOKEWICZ, JAMES,” “CIOKEWICZ, JAMES N,” or “CIOKEWICZ, JAMES
NICOLAS” appear to be duplicates. Excluding duplicates, the index identifies 23 unique
search results for “CIOKEWICZ, JAMES,” “CIOKEWICZ, JAMES N,” or
“CIOKEWICZ, JAMES NICOLAS.”
       When confronted with the case index, Ciokewicz testified as follows:

       “[Q:] Have you filed over 30 lawsuits in the last 20 years in this county?

       “[A:] Let’s see. Thirty lawsuits in the last 20 years?

       “[Q:] There seems to be a list.

       “[A:] I can’t recall that many, but I’m looking here. When you’ve got to
       go to court, that’s what the courts are for, justice.”
A short time later, Ciokewicz testified:

       “[Q:] Earlier I showed you a list of over 30 cases with your name on them.
       [¶] . . . [¶] Do you recall filing those lawsuits? Were you a plaintiff in all
       those lawsuits?

       “[A:] For these last 40 years or what?

       “[Q:] Well, it goes back to about 2004 or further back.

       “[A:] It goes back to 1972. Let’s see. Here is one 19 – this is your whole
       life here.

       “[Q:] So is it your testimony that you filed all those lawsuits?

       “[A:] It may have been an attorney filed some [of] these on my behalf.”

                                             6
       Later still, defense counsel offered the index into evidence, stating, “I would also
offer Exhibit K, which is the index search system which is the record of Sacramento
County cases that have been filed via the court website, along with Mr. Ciokewicz’s
testimony that he was the plaintiff in most of these cases, I believe.” Ciokewicz
responded, “I what?” Defense counsel then asked, “You were the plaintiff in most of
these cases?” Ciokewicz responded, “Yes. That’s why I went. These people put false
statements against me, made me look bad, and that’s why I wanted them to go to court
for, to hold up to it. I don’t know of any other way to get there.” Ciokewicz did not deny
filing any of the actions on the index or suggest that they might have been filed by
anyone else. Neither Ciokewicz nor anyone else appears to have noticed that some of the
entries on the index appear to be duplicates.
       During closing argument, defense counsel characterized Ciokewicz as “the
quintessential vexatious litigant,” stating: “The Court heard testimony, and he admitted
30 lawsuits, 40 lawsuits maybe in 20 years. He’s got them going all the time. The guy is
a professional litigant.”
       Following the close of evidence and argument, the trial court ruled from the
bench, finding that Ciokewicz failed to prove any of his claims by a preponderance of the
evidence. Turning to Defendants’ cross-complaint, the trial court adjudicated Ciokewicz
a vexatious litigant and awarded damages for abuse of process in the total amount of
$30,000. The trial court imposed a pre-filing order pursuant to Code of Civil Procedure
section 391.7, subdivision (a), barring Ciokewicz from filing any new litigation without
leave of the presiding judge.
       Ciokewicz did not file a motion to set aside the judgment in the trial court. (Code
Civ. Proc., § 473.) Ciokewicz filed a timely notice of appeal.




                                                7
                                      DISCUSSION
                                              I.
                                        The Appeal
       On appeal, Ciokewicz contends the judgment against him on Defendants’ cross-
complaint was obtained by fraud because Defendants and/or their counsel falsely
represented that “James N. Ciokewicz, Sr.” was responsible for all of the cases on the
index, when in fact, Ciokewicz claims, “a substantial majority” of cases originated with
his son, “James N. Ciokewicz, Jr.” (Italics added.) According to Ciokewicz, “[t]he trial
court erred in finding that [he] was a vexatious litigant as given the fact that [Defendants]
intentional [sic] misrepresented the truth that [Ciokewicz’s] son James Ciokewicz, Jr.,
whom [Defendants] knew, was the subject of a substantial portion of the lawsuits
referenced by [Defendants] during the trial.” Although Ciokewicz uses somewhat
different terminology in characterizing his claims, we understand him to argue that
Defendants and/or their counsel obtained the judgment by fraud by offering perjured
testimony or concealing material evidence.4 None of these contentions can be considered
on appeal, no matter how they are characterized, because they are based on arguments
and evidence that were never presented to the trial court.



4 Ciokewicz characterizes his claims against Defendants as claims involving “intentional
misrepresentations of material fact.” We note that Ciokewicz did not assert any such
cause of action in the trial court. We also note that a cause of action based on alleged
misrepresentations made during the trial would be barred by the litigation privilege.
(Civ. Code, § 47, subd. (b); Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057 [an in-court
communication made to achieve a litigation objective is absolutely privileged].)

Ciokewicz also characterizes defense counsel’s purported misconduct as “contempt.”
There is nothing in the record to suggest that contempt proceedings were ever initiated
against defense counsel. Furthermore, as we shall discuss, there is nothing in the record
to suggest that defense counsel engaged in any misconduct, let alone misconduct
amounting to contempt of court. Ciokewicz’s reliance on cases involving attorneys
found to have been in contempt of court is therefore misplaced.

                                              8
       “It has long been the general rule and understanding that ‘an appeal reviews the
correctness of a judgment as of the time of its rendition, upon a record of matters which
were before the trial court for its consideration.’ ” (In re Zeth S. (2003) 31 Cal.4th 396,
405.) None of Ciokewicz’s factual arguments concerning the composition of the index
were raised in the trial court.5 Although we have the ability to receive additional
evidence in exceptional circumstances, no such circumstances are present here. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) We therefore
decline to consider Ciokewicz’s new factual arguments.
       Furthermore, Ciokewicz has waived any fraud-based challenge to the judgment.
“It is well established that issues or theories not properly raised or presented in the trial
court may not be asserted on appeal, and will not be considered by an appellate tribunal.
A party who fails to raise an issue in the trial court has therefore waived the right to do so
on appeal. [Citations.]” (In re Marriage of Eben-King and King (2000) 80 Cal.App.4th
92, 117.) Having failed to seek relief in the trial court, Ciokewicz has waived any fraud-
based challenge to the judgment on appeal. (B & P Development Corp. v. City of
Saratoga (1986) 185 Cal.App.3d 949, 959 [party may not raise new issues not presented
in the trial court]; Bardis v. Oates (2004) 119 Cal.App.4th 1, 13, fn.6 [defendant-
appellant cannot assert a new theory of defense for the first time on appeal].)



5  We also observe that Ciokewicz’s brief fails to comply with rule 8.204(a)(1)(C), which
requires that each brief must “[s]upport any reference to a matter in the record by a
citation to the volume and page number of the record where the matter appears.” (Rule
8.204(a)(1)(C).) Although Ciokewicz accuses Defendants of making “intentional
misrepresentations” to the trial court, he does not provide us with a single citation to any
alleged misrepresentation in the record. We generally disregard factual assertions for
which proper support is not provided. (Regents of University of California v. Sheily
(2004) 122 Cal.App.4th 824, 826, fn. 1 [“It is not the task of the reviewing court to search
the record for evidence that supports the party’s statement; it is for the party to cite the
court to those references. Upon the party’s failure to do so, the appellate court need not
consider or may disregard the matter”].)

                                               9
       Even if Ciokewicz’s fraud claims were properly before us, we would reject them.
In ruling upon motions to set aside the judgment on the ground of fraud, courts
distinguish extrinsic fraud from intrinsic fraud. “ ‘Fraud is extrinsic where the defrauded
party was deprived of the opportunity to present his or her claim or defense to the court,
that is, where he or she was kept in ignorance or in some other manner, other than from
his own conduct, fraudulently prevented from fully participating in the proceeding.’
[Citation.]” (Home Ins. Co. v. Zuirch Ins. Co. (2002) 96 Cal.App.4th 17, 26-27.) On the
other hand, “ ‘fraud is intrinsic if a party has been given notice of the action and has not
been prevented from participating therein, that is, if he or she had the opportunity to
present his or her case and to protect himself or herself from any mistake or fraud of his
or her adversary, but unreasonably neglected to do so.’ ” (Id. at p. 27.) “Generally, the
introduction of perjured testimony or false documents, or the concealment or suppression
of material evidence is deemed intrinsic fraud.” (Ibid.)
       There is nothing in the record to suggest that Ciokewicz was deprived of an
opportunity to present any of his claims or defenses to the trial court. To the contrary, the
record confirms that Ciokewicz participated fully in the proceedings. He made an
opening statement, called witnesses, cross-examined witnesses, and made a closing
argument. He was directly questioned about the case index and had ample opportunity to
present evidence that his son was responsible for some, or even a “substantial majority,”
of the cases. If, as Ciokewicz now claims, a substantial majority of the cases originated
with his son, then he could have—and should have—so testified. Nothing Defendants or
their counsel did prevented Ciokewicz from setting the record straight; and his suggestion
that they had an obligation to go beyond his testimony (which made no mention of a
James N. Ciokewicz, Jr.) and inform the trial court of the existence of a son who might
have been responsible for some of the cases borders on the absurd. Accordingly,
Ciokewicz’s fraud claim is, at best, a claim of intrinsic fraud that “goes to an issue
involving the merits of the prior proceeding which [Ciokewicz] should have guarded

                                             10
against at that time.” (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1069.)
As such, the purported fraud would not have provided a basis for setting aside the
judgment, even assuming that it had been properly raised in the trial court. (Id. at pp.
1069-1070 [Intrinsic fraud is not a valid ground for setting aside a judgment].)
       Furthermore, though not necessary to our decision, we note that the record belies
Ciokewicz’s allegations. We have carefully reviewed the record and find nothing to
suggest that Defendants made any representations concerning the case index, let alone
any intentional misrepresentations. Although defense counsel characterized the index as
“a list of over 30 cases with your name on them,” he did so in the context of his cross-
examination of Ciokewicz. As noted, there was nothing stopping Ciokewicz from
testifying that some or a majority of the cases originated with his son. Indeed, Ciokewicz
was in as good a position as anyone to know which cases he was responsible for.
Likewise, there was nothing stopping Ciokewicz from directing the trial court’s attention
to the fact that some of the cases on the index appear to be duplicates. Although
Ciokewicz takes defense counsel to task for failing to account for duplicates, Ciokewicz
himself did not raise the issue until his reply brief. On this record, we perceive no
evidence that Defendants or defense counsel engaged in any wrongdoing, let alone the
type of wrongdoing that would justify Ciokewicz’s allegations of fraud and professional
misconduct.
       Finally, we reject Ciokewicz’s contention, made for the first time in his reply
brief, that the trial court abused its discretion in adjudicating him a vexatious litigant.6
“It is axiomatic that arguments made for the first time in a reply brief will not be




6  We also reject Ciokewicz’s claim—made for the first time in his reply brief—that the
trial court violated his rights under the U.S. Constitution and Americans with Disabilities
Act (42 U.S.C. § 12101 et seq) by denying his request to appear by telephone in one of
his previous cases against Allen.

                                              11
entertained because of the unfairness to the other party.” (People v. Tully (2012)
54 Cal.4th 952, 1075.) Ciokewicz does not offer any explanation for his failure to
present the argument earlier. Accordingly, we decline to consider it.
       We therefore conclude that Ciokewicz’s appeal lacks merit. We next consider
whether the appeal is also frivolous such that sanctions are warranted.
                                             II.
                                   The Motion for Sanctions
       By written motion, Defendants ask that we impose sanctions on Ciokewicz and his
attorney, Bones, for filing a frivolous appeal. (Code Civ. Proc., § 907; rule 8.276; In re
Marriage of Flaherty (1982) 31 Cal.3d 637, 650 (Flaherty).) Although Ciokewicz’s
claims lack merit, we decline to find that they are so egregious as to warrant the
imposition of sanctions. (Flaherty, supra, at p. 650 (“An appeal that is simply without
merit is not by definition frivolous and should not incur sanctions”].) Accordingly,
Defendants’ motion is denied.
                                       DISPOSITION
       The judgment is affirmed. Respondents Leslie Friend and Christina Edwards shall
recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)



                                                   RENNER                       , J.



We concur:



RAYE                        , P. J.



BUTZ                        , J.

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