Filed 5/25/17
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT


RICHARD L. THOMPSON,                                 H042104
                                                    (Santa Cruz County
        Plaintiff, Cross-defendant and               Super. Ct. No. CV-179290)
        Respondent,

        v.

BRIANA C. IOANE,

        Defendant, Cross-complainant and
        Appellant.

RICHARD L. THOMPSON,                                 H043112
                                                    (Santa Cruz County
        Plaintiff and Respondent,                    Super. Ct. No. CV-179290)

        v.

MICHAEL S. IOANE, Sr., et al.,

        Defendants and Appellants.

RICHARD L. THOMPSON,                                 H043350
                                                    (Santa Cruz County
        Plaintiff and Respondent,                    Super. Ct. No. CV-179290)

        v.

MICHAEL S. IOANE, Sr., et al.,

        Defendants and Appellants.


        In this opinion, we resolve three related appeals arising out of an action to quiet
title to real property located on Blue Gum Avenue in Capitola (the Blue Gum property).
James J. Thompson (Thompson)1 brought this action against, among others, Michael S.
Ioane, Sr., Shelly J. Ioane, and their adult children Briana C. Ioane, Ashley M. Ioane, and
Michael S. Ioane, Jr. (collectively, the Ioanes).2 Briana filed a cross-complaint against
Thompson, asserting a number of claims, including one for quiet title to the Blue Gum
property.
        The trial court sustained Thompson’s demurrer to Briana’s cross-complaint and,
later, granted summary judgment in Thompson’s favor and against the Ioanes on causes
of action for quiet title and declaratory relief. On Thompson’s motion, the trial court
found Michael and Shelly to be vexatious litigants and imposed a pre-filing order against
them.
        Michael, Shelly, and Briana (collectively, appellants) appealed and are proceeding
in propria persona. In appeal Thompson v. Ioane (H042104), Briana appeals the order
sustaining Thompson’s demurrer to her cross-complaint. All three appellants appeal the
grant of summary judgment in appeal Thompson v. Ioane et al. (H043112). Michael and
Shelly appeal the pre-filing order in appeal Thompson v. Ioane et al. (H043350).
        We reverse and remand with directions.




        1
         Thompson died on July 24, 2016. On motion, this court substituted his son and
successor in interest, Richard L. Thompson, as respondent. (Code Civ. Proc., § 377.31.)
For simplicity and consistency, we refer to the plaintiff and respondent throughout the
opinion as “Thompson.”
       2
         We refer to the Ioanes by their first names for purposes of clarity. We refer to
Michael S. Ioane, Sr. as “Michael” and to Michael S. Ioane, Jr. as “Michael, Jr.”


                                             2
I.     BACKGROUND3
       A.     Factual Background4
       The Blue Gum property was sold at a foreclosure sale in August 1998.5



       3
          Appellants’ requests for judicial notice filed in appeal numbers H043112 and
H042104 on November 10, 2016 are denied because the documents are not relevant to
our resolution of the appeals. (Jordache Enterprises, Inc. v. Brobeck, Phleger &
Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of materials
not “necessary, helpful, or relevant”].)
        4
          We base our factual summary on the parties’ separate statements of undisputed
material facts, evidence admitted in conjunction with the motion for summary judgment,
and admissions in the parties’ appellate briefs. (Mangini v. Aerojet-General Corp. (1991)
230 Cal.App.3d 1125, 1152, superseded by statute on other grounds as stated in Rufini v.
CitiMortgate, Inc. (2014) 227 Cal. App. 4th 299 [“ ‘ “[W]hile briefs and arguments are
outside the record, they are reliable indications of a party’s position on the facts as well
as the law, and a reviewing court may make use of statements therein as admissions
against the party” ’ ”].)
        With respect to the parties’ separate statements, the Code of Civil Procedure
requires summary judgment opposition papers to “include a separate statement that
responds to each of the material facts contended by the moving party to be undisputed,
indicating if the opposing party agrees or disagrees that those facts are undisputed,” and
to include “a reference to the supporting evidence” where a fact is disputed. (Code Civ.
Proc. § 437c, subd. (b)(3).) That separate statement in opposition must “unequivocally
state whether [each] fact is ‘disputed’ or ‘undisputed.’ ” (Cal. Rules of Court, rule
3.1350, subd. (f)(2).) Briana and Michael filed separate statements in opposition to
Thompson’s motion for summary judgment. Each of those separate statements failed to
comply with the foregoing rules. Rather than unequivocally stating whether each
material fact in Thompson’s separate statement is disputed or undisputed, Michael
objected to every fact on relevance grounds. We construe his separate statement as
admitting all of the material facts set forth in Thompson’s separate statement.
(See Carolyn v. Orange Park Community Assn. (2009) 177 Cal.App.4th 1090, 1094
[where party opposing summary judgment failed to meet his obligation of unequivocally
stating whether certain facts were disputed or undisputed, deeming those facts to be
undisputed].) Briana also objected to certain facts instead of disputing them. We deem
those facts to which she purported to object but did not dispute to be undisputed by her.
Shelly filed no separate statement and did not join in Briana or Michael’s separate
statement. Accordingly, we shall consider her to have admitted all of the facts in
Thompson’s separate statement.


                                             3
Thereafter, Bank United filed an unlawful detainer action against Michael in Santa Cruz
Superior Court case No. MS981411. In June 1999, the court entered judgment ordering
that Bank United take possession of the Blue Gum property from Michael and that a
writ of possession be issued.6
       Shelly filed for bankruptcy. She and Michael filed an adversary proceeding
against Bank United and others in her bankruptcy case. In their first amended complaint,
they alleged that they were the owners of the Blue Gum property, that the foreclosure sale
was invalid, and that the writ of possession issued in the state unlawful detainer action
was invalid. They sought possession of the Blue Gum property, among other relief. On
July 10, 2000, the bankruptcy court granted summary judgment in favor of Bank United.
       In approximately the same timeframe, Michael and Shelly filed a separate civil
suit against Bank United and others in federal district court (case No. 99-21119 SW).
They alleged they had “a paramount interest” in the Blue Gum property, that Bank
United lacked any claim to the Blue Gum property, and that the writ of possession issued
in the state unlawful detainer action was invalid. As in the adversary proceeding, they
sought possession of the Blue Gum property. In an order filed on August 25, 2000, the
federal court dismissed the action with prejudice, “easily conclud[ing] that the present
litigation is just one more in a string of frivolous lawsuits filed by the Plaintiffs . . . .”
The court dismissed the majority of the causes of action pursuant to the Rooker-Feldman


       5
         Appellants dispute the validity of this sale, but not the fact of its occurrence.
Appellants likewise dispute the validity, but not the existence, of each judgment
discussed below.
       6
         Thompson requested judicial notice of the judgment in connection with his
summary judgment motion. While he has not identified where in the record the trial court
granted that request, it is apparent the court did so as its written order granting summary
judgment references the judgment and the request. The same is true of all of the court
records (i.e., complaints, judicial opinions, and judgments) discussed in the factual
summary.


                                                4
doctrine7, reasoning that those claims effectively sought federal court review of the state
court’s ruling in the unlawful detainer action. On September 26, 2000, the court imposed
the sanction of pre-filing review on Michael and Shelly.
       The Blue Gum property was deeded to Thompson and his wife in 2001.
       The Ioanes filed a quiet title action against, among others, the Thompsons in Santa
Cruz Superior Court case No. CV138163. On July 24, 2002, the superior court granted a
motion for judgment on the pleadings filed by Thompson and his wife. The court later
entered judgment in favor of the Thompsons. That judgment called for the Thompsons to
recover their costs, but did not purport to quiet title in the Thompsons’ favor. This court
affirmed that judgment on December 19, 2003. (Olson v. Murray (Dec. 19, 2003,
H024770) [nonpub. opn.] (Olson).)
       The Ioanes have recorded a number of documents regarding the Blue Gum
property with the Santa Cruz County Recorder since the issuance of this court’s opinion
in Olson in 2003. For example, a grant deed was recorded on February 15, 2005
purporting to transfer title to the Blue Gum property from Michael to Lesieli Tavake on
behalf of his then-minor children Ashley, Briana, and Michael, Jr.
       B.     Procedural History
       Thompson filed a verified first amended complaint on June 13, 2014 against the
Ioanes and others.8 He sought a judgment quieting title in his favor, cancellation of
various written instruments, and declaratory relief.
       On January 15, 2015, the court sustained a demurrer filed by Shelly, Michael, and
Michael, Jr. to the cancellation of instruments cause of action with leave to amend, which
       7
         “[U]nder what has come to be known as the Rooker-Feldman doctrine, lower
federal courts are precluded from exercising appellate jurisdiction over final state-court
judgments.” (Lance v. Dennis (2006) 546 U.S. 459, 463 (per curiam) [citing Rooker v.
Fidelity Trust Co. (1923) 263 U.S. 413, and District of Columbia Court of Appeals v.
Feldman (1983) 460 U.S. 462.)
       8
         All of the defendants other than the Ioanes defaulted.


                                             5
Thompson did not. Instead, he dismissed the cancellation of instruments cause of action
against Ashley and Briana.
          Briana filed a cross-complaint asserting claims for quiet title, conversion,
malicious prosecution, cancellation of written instrument, and declaratory relief on
November 5, 2014. She sought cancellation of nine instruments, including the 2001 grant
deed to the Thompsons. Thompson demurred, arguing that the quiet title, conversion,
cancellation of written instrument, and declaratory relief claims were barred by
res judicata (claim preclusion). He further argued that the conversion, malicious
prosecution, and declaratory relief claims failed to state sufficient facts to state a cause of
action.
          On February 26, 2015, the court sustained Thompson’s demurrer to each of
Briana’s causes of action without leave to amend. It ruled that the quiet title claim was
barred by claim preclusion, the conversion claim failed to state sufficient facts to state a
cause of action and was barred by claim preclusion, the malicious prosecution claim
failed to state sufficient facts to state a cause of action, the cancellation of written
instrument claim was barred by claim preclusion, and the declaratory relief claim failed
to state sufficient facts to state a cause of action and was barred by claim preclusion.
Brianna filed a notice of appeal on March 17, 2015.
          On March 18, 2015 Thompson filed a motion for summary judgment on the
grounds that claim preclusion or issue preclusion barred appellants’ defenses. The trial
court granted that motion in an order filed on October 21, 2015. Michael, Shelly, and
Briana filed notices of appeal on December 21, 2015.
          In January 2016, pursuant to a motion made by Thompson, the trial court entered a
vexatious litigant prefiling order against Michael and Shelly. They appealed from that
order on March 14, 2016.
          The court entered judgment on March 25, 2016. It quieted title to the Blue Gum
property in Thompson as of May 30, 2001. The judgment enjoined appellants “to make

                                                6
no further claim to said Blue Gum Property adverse to plaintiff, by legal action or
otherwise, on the basis of any fact or facts that were proved, or which might have been
proved, in the action.” The court also ordered cancellation of sixteen recorded
documents. Finally, the court declared that Thompson “is the sole owner of the fee
simple title of the Blue Gum Property; and that [appellants] have no legal or equitable
right, title, estate, lien, or interest in the Blue Gum Property adverse to plaintiff.”
II.    DISCUSSION
       A.     Appealability
       As a threshold matter, we note that each of appellants’ three appeals was filed
prematurely from a non-appealable order before judgment had been entered. While
Thompson does not raise an appealability challenge, “[t]he existence of an appealable
judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the
issue on its own initiative whenever a doubt exists as to whether the trial court has
entered a final judgment or other order or judgment made appealable by Code of Civil
Procedure section 904.1. [Citations.]” (Jennings v. Marralle (1994) 8 Cal.4th 121,
126-127.)
       Briana appealed from the order sustaining Thompson’s demurrer to her cross-
complaint. But “[a]n order sustaining a demurrer without leave to amend is not
appealable, and an appeal is proper only after entry of a dismissal on such an order.”
(Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.) Appellants all
appealed from the order granting summary judgment to Thompson, which also was not
appealable. (Code Civ. Proc., § 437c, subd. (m)(1);9 see Saben, Earlix & Associates v.
Fillet (2005) 134 Cal.App.4th 1024, 1030.) And Michael and Shelly appealed from the
prefiling order, which was nonappealable. (In re Bittaker (1997) 55 Cal.App.4th 1004,

       9
        All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.


                                               7
1008.) Appellants should have sought review of each nonappealable order on a single
appeal from the final judgment entered against them in March 2016.
       The Rules of Court allow us to “treat a notice of appeal filed after the superior
court has announced its intended ruling, but before it has rendered judgment, as filed
immediately after entry of judgment.” (Cal. Rules of Court, rule 8.104, subd. (d)(2).)
“[S]ince an appealable judgment was later entered, the notice[s] of appeal [are] merely
premature. [Citation.] [Therefore], ‘we will liberally construe the appeal[s] to have been
taken from the judgment of dismissal.’ [Citation.]” (Doan v. State Farm General Ins.
Co. (2011) 195 Cal.App.4th 1082, 1090, fn. 4.)
       B.     Order Sustaining Demurrer (H042104)
              1.     Legal Principles
                     a.      Standard of Review
       We review an order sustaining a demurrer de novo, exercising our independent
judgment as to whether a cause of action has been stated as a matter of law. (Moore v.
Regents of University of California (1990) 51 Cal.3d 120, 125.) Because a demurrer tests
only the legal sufficiency of the pleading, the facts alleged in the pleading are deemed to
be true. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034
(Berg & Berg Enterprises).) We do not review the validity of the trial court’s reasoning,
and therefore will affirm its ruling if it was correct on any theory. (Ibid.) Nor are we
“limited to plaintiff[’]s theory of recovery in testing the sufficiency of [its] complaint
against a demurrer, but instead must determine if the factual allegations of the complaint
are adequate to state a cause of action under any legal theory.” (Barquis v. Merchants
Collection Assn. (1972) 7 Cal.3d 94, 103.)
       “Where a demurrer is sustained without leave to amend, [we] must determine
whether there is a reasonable probability that the complaint could have been amended to
cure the defect; if so, [we] will conclude that the trial court abused its discretion by
denying the plaintiff leave to amend. [Citation.] The plaintiff bears the burden of

                                               8
establishing that it could have amended the complaint to cure the defect.” (Berg & Berg
Enterprises, supra, 178 Cal.App.4th at p. 1035.)
                       b.     Claim Preclusion10
       “Claim preclusion ‘prevents relitigation of the same cause of action in a second
suit between the same parties or parties in privity with them.’ [Citation.] Claim
preclusion arises if a second suit involves (1) the same cause of action (2) between the
same parties (3) after a final judgment on the merits in the first suit. [Citations.] If claim
preclusion is established, it operates to bar relitigation of the claim altogether.” (DKN
Holdings, supra, 61 Cal.4th at p. 824.) Claim preclusion also “bars claims that could
have been raised in the first proceeding . . . .” (Daniels v. Select Portfolio Servicing, Inc.
(2016) 246 Cal.App.4th 1150, 1164; Torrey Pines Bank v. Superior Court (1989) 216
Cal.App.3d 813, 821 [“Res judicata bars ‘not only the reopening of the original
controversy, but also subsequent litigation of all issues which were or could have been
raised in the original suit.’ ”]
       The court may sustain a demurrer on claim preclusion grounds “[i]f all of the facts
necessary to show that the action is barred are within the complaint or subject to judicial
notice . . . .” (Carroll v. Puritan Leasing Co. (1978) 77 Cal.App.3d 481, 485.)

               2.      Conversion and Malicious Prosecution Causes of Action
       On appeal, Briana argues the court erred in sustaining the demurrer on claim
preclusion grounds. As noted above, the court sustained the demurrer as to certain claims


       10
          As discussed further below, the parties debate whether certain of Briana’s
claims are barred by “res judicata.” Our high court explained in DKN Holdings LLC v.
Faerber (2015) 61 Cal.4th 813, 823-824 (DKN Holdings) that the term “res judicata” is
imprecise, as it has been used “as an umbrella term encompassing both claim preclusion
and issue preclusion” and as a synonym for claim preclusion. “To avoid future
confusion” between the two types of preclusion, which “have different requirements,” the
court endorsed the use of the terms “ ‘claim preclusion’ ” and “ ‘issue preclusion.’ ” (Id.
at p. 824.) Accordingly, we shall use those terms.


                                              9
on the ground that the cross-complaint failed to state sufficient facts to state a cause of
action. Briana does not address that ground. Only the quiet title and cancellation of
written instrument claims were disposed of solely on claim preclusion grounds.
(Thompson demurred to the claim for declaratory relief on the ground that it was wholly
derivative of the other causes of action, and thus failed if they failed.) Therefore, we
affirm the order sustaining the demurrer as to the conversion and malicious prosecution
causes of action.

               3.     Quiet Title Cause of Action
       Briana acknowledges that she and the other Ioanes filed an action to quiet title to
the Blue Gum property against the Thompsons in case No. CV138163 more than a
decade ago. At Thompson’s request, the trial court took judicial notice of court records
related to that quiet title action, including (1) the trial court order granting the
Thompsons’ motion for judgment on the pleadings, (2) the trial court judgment in favor
of the Thompsons, and (3) the Olson decision issued by this court affirming the trial court
judgment.
       In view of the foregoing, Thompson contends that claim preclusion bars Briana’s
cross-claim seeking to quiet title to the Blue Gum property. She disagrees, attacking the
validity of the 1998 foreclosure sale, the supposed basis for the judgment on the
pleadings in the Thompsons’ favor in case No. CV13816311, and this court’s decision
affirming that judgment, which she says got the facts wrong. Briana did not raise any of
these arguments below in opposition to Thompson’s demurrer; as such, she forfeited
them. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592 (Perez) [“arguments
raised for the first time on appeal are generally deemed forfeited”].) Moreover, as
discussed below, they fail on the merits.

       11
       Without citation to the record, Briana asserts that the judgment hinged on the
Thompsons being in privity with Bank United, which she says they were not.


                                               10
        All of the elements of claim preclusion were met, such that the trial court did not
err in sustaining Thompson’s demurrer to Briana’s cross-claim to quiet title to the Blue
Gum property. First, case No. CV138163 and Briana’s cross-complaint involved
identical causes of action—to quiet title to the Blue Gum property. Second, the actions
involved the same parties—Briana and Thompson. Third, there was a final judgment on
the merits in case No. CV138163. Briana’s arguments regarding the validity of the
1998 foreclosure sale and the merits of the Thompsons’ motion for judgment on the
pleadings in case No. CV138163 could have been raised in the prior action. Briana notes
that she “did not argue a lack of privity between Bank United and the Thompsons” on
appeal from the judgment in case No. CV138163. But, for purposes of claim preclusion,
that matters not. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897 [claim
preclusion requires that “all claims based on the same cause of action must be decided in
a single suit; if not brought initially, they may not be raised at a later date”].)
        Briana’s challenge to this court’s decision affirming the judgment in Thompson’s
favor in case No. CV138163 is unavailing. For purposes of claim preclusion, “an
erroneous judgment is as conclusive as a correct one.” (McKinney v. County of Santa
Clara (1980) 110 Cal.App.3d 787, 795.) Therefore, even if this court got the facts
wrong, as Briana claims, the doctrine of claim preclusion applies. (Hawkins v. SunTrust
Bank (2016) 246 Cal.App.4th 1387, 1393 [claim preclusion bars “ ‘ “relitigation of a
factual dispute even in those instances where the factual dispute was erroneously
decided . . . .” ’ ”].)
        To the extent Briana contends the final judgment in case No. CV138163 is void,
that contention fails. “ ‘A judgment is void if the court rendering it lacked subject matter
jurisdiction or jurisdiction over the parties. Subject matter jurisdiction “relates to the
inherent authority of the court involved to deal with the case or matter before it.”
[Citation.] Lack of jurisdiction in this “fundamental or strict sense means an entire
absence of power to hear or determine the case, an absence of authority over the subject

                                               11
matter or the parties.” [Citation.]’ ” (Pajaro Valley Water Management Agency v.
McGrath (2005) 128 Cal.App.4th 1093, 1100.) Briana does not suggest, let alone
demonstrate, that the court rendering the earlier judgment acted without jurisdiction in
the fundamental sense. Accordingly, the rule that “a void judgment will not operate as a
bar to relitigation of the issues purportedly adjudicated” has no application. (Ibid.)
       Briana’s quiet title action fails for the independent reason that judicially noticeable
facts show that her interest in the Blue Gum property depends on a void judgment, such
that she cannot state a claim for quiet title. To prevail on a quiet title claim, a plaintiff
must establish title to the property in dispute. (§ 761.020; Hoeller v. Lloyd (1959) 173
Cal.App.2d 777, 778 (Hoeller).) Briana’s cross-complaint traces her title to a
January 2003 judgment in Santa Cruz Superior Court case No. CV139431 quieting title to
the Blue Gum property in Michael. In ruling on Thompson’s demurrer, the trial court
took judicial notice of a March 2004 order in that case setting aside the January 2003
judgment as “void ab[ ]initio as to title to” the Blue Gum property. Thus, judicially
noticeable facts demonstrate that Briana cannot establish title to the Blue Gum property,
as she must to state a claim for quiet title.
       On appeal, Briana argues the March 2004 order is void because the judge who
entered it acted in excess of his jurisdiction; she also questions the reasoning set forth in
the order. She did not raise those arguments below, and thus they are forfeited. (Perez,
supra, 169 Cal.App.4th at pp. 591-592.) They also fail on the merits. Where a court
“acts in excess of its jurisdiction, its act or judgment is merely voidable. [Citations.]
That is, its act or judgment is valid until it is set aside, and a party may be precluded from
setting it aside by ‘principles of estoppel, disfavor of collateral attack or res judicata.’
[Citation.] Errors which are merely in excess of jurisdiction should be challenged
directly, for example by motion to vacate the judgment, or on appeal, and are generally
not subject to collateral attack once the judgment is final unless ‘unusual circumstances
were present which prevented an earlier and more appropriate attack.’ ” (People v.

                                                12
American Contractors Indem. Co. (2004) 33 Cal.4th 653, 661.) Briana does not assert
any such unusual circumstances. Accordingly, the March 2004 order is not void or
subject to attack here.

              4.     Cancellation of Written Instruments Cause of Action
       “Under Civil Code section 3412, ‘[a] written instrument, in respect to which there
is a reasonable apprehension that if left outstanding it may cause serious injury to a
person against whom it is void or voidable, may, upon his application, be so adjudged,
and ordered to be delivered up or canceled.’ To prevail on a claim to cancel an
instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for
example, fraud; and (2) there is a reasonable apprehension of serious injury including
pecuniary loss or the prejudicial alteration of one’s position. [Citation.]” (U.S. Bank
National Assn. v. Naifeh (2016) 1 Cal.App.5th 767, 778.)
       Briana sought cancellation of various recorded documents including the grant deed
to Thompson and other documents in his chain of title, alleging those instruments were
void and “may cause serious injury to [her] by throwing a cloud on [her] title if allowed
to remain uncancelled.” As noted above, she purports to trace her title to a void judgment
quieting title to the Blue Gum property in Michael. Absent any interest in the property,
Briana cannot allege a reasonable apprehension that any of the instruments at issue could
cause her serious injury, and thus cannot state a claim for cancellation of written
instruments. Again, her challenges to the March 2004 order fail.

              5.     Declaratory Judgment Cause of Action
       Briana sought a declaration that she is the sole owner of the Blue Gum property
and that Thompson has no adverse interest in the property. The court did not err in
sustaining Thompson’s demurrer to Briana’s claim for declaratory relief for the same
reason it properly sustained the demurrer to her quiet title and cancellation of written




                                             13
instruments claim—judicially noticeable facts show Briana’s interest in the Blue Gum
property depends on a void judgment.

                6.     Leave to Amend
         “If the court sustained the demurrer without leave to amend, as here, we must
decide whether there is a reasonable possibility the plaintiff could cure the defect with an
amendment. [Citation.] If we find that an amendment could cure the defect, we conclude
that the trial court abused its discretion and we reverse; if not, no abuse of discretion has
occurred. [Citation.] The plaintiff has the burden of proving that an amendment would
cure the defect. [Citation.]” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074,
1081.)
         Briana argues she should have been granted leave to amend to investigate the
orders and judgments Thompson argued precluded her claims. She contends she and the
other appellants determined that the underlying judgments were void between the time
the demurrer was sustained and the summary judgment motion was briefed. But, as
discussed above, Briana does not point to any grounds for voiding the judgment in
case No. CV138163 or the March 2004 order. Therefore, we find no abuse of discretion.
         C.     Summary Judgment Order (H043112)
                1.     Standard of Review
         A party is entitled to summary judgment only if there is no triable issue of material
fact and the party is entitled to judgment as a matter of law. (§ 437c, subd. (c).)
A plaintiff moving for summary judgment “bears the burden of persuasion that ‘each
element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is
no defense’ thereto.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
“Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show
that a triable issue of one or more material facts exists as to the cause of action or a
defense thereto. The defendant . . . shall not rely upon the allegations or denials of its



                                              14
pleadings to show that a triable issue of material fact exists but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists as to the cause of action
or a defense thereto.” (§ 437c, subd. (p)(1).)
       “On appeal from the granting of a motion for summary judgment, we examine the
record de novo, liberally construing the evidence in support of the party opposing
summary judgment and resolving doubts concerning the evidence in favor of that party.”
(Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) “We consider ‘all of
the evidence the parties offered in connection with the motion (except that which the
court properly excluded) . . . .’ ” (Id. at p. 452, fn. 3.) We may affirm on any ground that
the parties had an adequate opportunity to address in the trial court, regardless of the trial
court’s rationale. (Securitas Security Services USA, Inc. v. Superior Court (2011) 197
Cal.App.4th 115, 120.)

              2.      Thompson Did Not Establish His Right to Summary Judgment on
                      His Quiet Title Cause of Action
       To prevail on a quiet title claim, a plaintiff must establish title to the property in
dispute. (§ 761.020; Hoeller, supra, 173 Cal.App.2d at p. 778.) “The plaintiff may
recover only upon the strength of his or her own title . . . and not upon the weakness of
the defendant’s title. Where the plaintiff relies on a paper title alone he must trace his
title (1) to the government; or (2) to grantor in possession at the time of the conveyance
to the plaintiff; or (3) to a source common to the chains of title of plaintiff and
defendant.” (Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 706.)
       As a plaintiff moving for summary judgment on a quiet title claim, Thompson
bore the burden to make out a prima facie case of ownership. (Miller v. Boswell (1958)
162 Cal.App.2d 508, 511.) Thompson contends two undisputed facts establish his title:
(1) Bank United obtained title by foreclosure and trustee’s sale and (2) he and his wife
purchased the property from Bank United. While Michael and Shelly did not properly




                                              15
dispute those facts, Briana did.12 In any event, summary judgment is improper “[w]here
the evidence submitted by [the] moving [party] does not support judgment in his
favor . . . .” (Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (2009)
174 Cal.App.4th 339, 354.) As such, courts have held that the opposing party’s failure to
file a proper separate statement as required by section 437c, subdivision (b), is grounds
for summary judgment only where the moving party has met its initial burden of proof.
(Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086; Kojababian v.
Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416.) In view of the foregoing,
we have no difficulty concluding that, regardless of any deficiencies in appellants’
separate statements, summary judgment in Thompson’s favor was proper only if he
submitted evidence supporting judgment in his favor. He did not.
       The only “evidence” Thompson produced in support of his claim that he
purchased the Blue Gum property from Bank United was this court’s decision in Olson,
of which the court below took judicial notice. In the background section of that opinion,
this court stated that the Thompsons “purchased the Blue Gum property from Bank
United . . . .” The trial court was not entitled to judicially notice the truth of that factual
statement. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1566 (Sosinsky) [“judicial


       12
          Thompson says the trial court excluded the evidence Briana offered to dispute
those facts, such that they should be deemed undisputed by her. Our review of the record
refutes that claim. Briana disputed the facts based on a First American Title Company
Title Guaranty Report and a Release of Obligation. Respondent says those documents
were excluded, citing to his “OBJECTIONS TO EXHIBITS IN SUPPORT OF
OPPOSITION TO SUMMARY JUDGMENT” and an order stating “Plaintiff’s
objections to Defendants’ exhibits in support of opposition is sustained on the grounds
identified in plaintiff’s papers: No. 3 (exhibit 13).” Thompson’s objections included
“Objection No. 1” to the Guaranty Report, “Objection No. 2” to the Release of
Obligation, and “Objection No. 3 (Exhibit 13)” to a Trustee’s Deed recorded on
September 16, 1997 as Document No. 1997-0042217. We read the court’s order as
excluding only the September 16, 1997 Trustee’s Deed, and not the Guaranty Report or
Release of Obligation.


                                               16
notice of the truth of ‘facts’ stated in an appellate opinion’s statement of facts is not
appropriate”].) We note that “[w]hether a factual finding is true is a different question
than whether the truth of that factual finding may or may not be subsequently litigated a
second time. The doctrines of res judicata and collateral estoppel will, when they apply,
serve to bar relitigation of a factual dispute even in those instances where the factual
dispute was erroneously decided in favor of a party who did not testify truthfully.” (Id. at
p. 1569.) But Thompson does not argue that preclusion principles bar the relitigation of
the issue of what entity sold him the Blue Gum property.
         Thompson’s own filings in this court and the court below reveal a triable issue of
fact as to his chain of title. In the operative complaint, Thompson alleged that the basis
of his title to the Blue Gum property is a grant deed from grantor First Trust National
Association. His separate statement asserted he purchased the property from Bank
United. On appeal, Thompson claims he purchased the property from Bank United and
“[a] deed conveying title . . . was delivered by First Trust National Association . . . .” He
also contends that First Trust National Association “merged or changed its name to Bank
United,” but he does not support that contention with citation to the record. Nor does he
point us to any record evidence explaining the relationship between Bank United and
First Trust National Association. Accordingly, there is a triable issue of fact as to
whether Thompson purchased the Blue Gum property from Bank United or First Trust
National Association. That fact is material to Thompson’s ability to properly trace his
title.
         Thompson does not appear to take the position that the prior quiet title action
(case No. CV138163) established his title and is preclusive on that issue.13 That is, he
does not attempt to use issue preclusion offensively. (Abelson v. National Union Fire

         13
          Instead, he relies on the preclusion doctrines to bar any defense by the Ioanes to
his quiet title claim.


                                              17
Ins. Co. (1994) 28 Cal.App.4th 776, 787 [“the offensive use of collateral estoppel . . .
occurs when a plaintiff seeks to prevent a defendant from relitigating an issue determined
adversely to defendant in another action against plaintiff or another party”].) Such an
argument would fail. Issue preclusion “prevents relitigation of previously decided
issues”—those that were “actually litigated and necessarily decided in the first suit.”
(DKN Holdings, supra, 61 Cal.4th at p. 824.) Thompson has not shown that his title to
the Blue Gum property was litigated and decided in case No. CV138163. The record
establishes that, in that case, the Thompsons were granted judgment on the pleadings on
the Ioanes’ quiet title action and judgment was entered in their favor. That judgment
called for the Ioanes to “recover nothing against” the Thompsons and for the Thompsons
to recover their costs; it did not purport to quiet title in the Thompsons. Thus, the record
demonstrates only that the Ioanes failed to establish title to the Blue Gum property, not
that Thompson did so. Thompson contends he was “entitled to an affirmative decree
quieting title in his name” merely because he prevailed against the Ioanes’ quiet title
claim. But that cannot be right, as both Thompson and another defendant, Washington
Mutual (Bank United’s successor), prevailed against the Ioanes’ quiet title claim. It
cannot be that they both were entitled to quiet title decrees.
       For the foregoing reasons, we conclude Thompson failed to establish his own title
to the Blue Gum property. Therefore, he did not meet his prima facie burden on the
motion for summary judgment on the quiet title claim.

              3.     Thompson Did Not Establish His Right to Summary Judgment on
                     His Declaratory Judgment Cause of Action
       Thompson sought a declaration that he was the sole owner of the Blue Gum
property and that appellants have no interest in it. Because there exists a triable issue of
material fact as to his chain of title, he was not entitled to summary judgment on his
declaratory judgment claim.




                                             18
       D.     Vexatious Litigant Determination and Pre-Filing Order (H043305)
       Michael and Shelly appeal a prefiling order issued pursuant to the vexatious
litigant statute (§ 391, et seq.), which prohibits them from filing new litigation in propria
persona in the California courts without first obtaining leave of court.
       The vexatious litigant statute (§ 391, et seq.) was enacted “ ‘to curb misuse of the
court system’ ” by “ ‘persistent and obsessive’ litigants.” (Bravo v. Ismaj (2002) 99
Cal.App.4th 211, 220-221.) Section 391, subdivision (b) defines a “vexatious litigant” as
“a person who does any of the following: [¶] (1) In the immediately preceding seven-
year period has commenced, prosecuted, or maintained in propria persona at least five
litigations other than in a small claims court that have been (i) finally determined
adversely to the person or (ii) unjustifiably permitted to remain pending at least two years
without having been brought to trial or hearing. [¶] (2) After a litigation has been finally
determined against the person, repeatedly relitigates or attempts to relitigate, in propria
persona, either (i) the validity of the determination against the same defendant or
defendants as to whom the litigation was finally determined or (ii) the cause of action,
claim, controversy, or any of the issues of fact or law, determined or concluded by the
final determination against the same defendant or defendants as to whom the litigation
was finally determined. [¶] (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. [¶] (4) Has previously been declared to be a vexatious litigant by any
state or federal court of record in any action or proceeding based upon the same or
substantially similar facts, transaction, or occurrence.” (§ 391, subd. (b).) Section 391.7,
subdivision (a) authorizes courts to enter prefiling orders prohibiting vexatious litigants
“from filing any new litigation in the courts of this state in propria persona without first
obtaining leave of the presiding justice or presiding judge of the court where the litigation
is proposed to be filed.”

                                             19
       The superior court found Shelly and Michael to be vexatious litigants under
section 391, subdivision (b)(4), reasoning that they had previously been declared to be
vexatious litigants by a federal court in a proceeding based upon the same or substantially
similar facts, transaction, or occurrence “as the instant litigation.” Specifically, the court
relied on the September 26, 2000 order in Case No. 99-21119 SW imposing the sanction
of pre-filing review on Shelly and Michael. They challenge the prefiling order on a
number of grounds, including that section 391, subdivision (b)(4) should be construed as
applying only to plaintiffs.
       “We review questions of statutory construction de novo. [Citation.] ‘Our primary
task in interpreting a statute is to determine the Legislature’s intent, giving effect to the
law’s purpose. [Citation.] We consider first the words of a statute, as the most reliable
indicator of legislative intent. [Citation.]’ [Citation.] We construe the statute’s words in
context, and harmonize statutory provisions to avoid absurd results. [Citation.] If we
find the statutory language ambiguous or subject to more than one interpretation, we may
look to extrinsic aids, including legislative history or purpose to inform our views.
[Citation.]” (John v. Superior Court (2016) 63 Cal.4th 91, 95-96 (John).) “Ordinarily, if
the statutory language is clear and unambiguous, there is no need for judicial
construction. [Citation.] Nonetheless, a court may determine whether the literal meaning
of a statute comports with its purpose. [Citation.] We need not follow the plain meaning
of a statute when to do so would ‘frustrate[ ] the manifest purposes of the legislation as a
whole or [lead] to absurd results.’ ” (California School Employees Assn. v. Governing
Board (1994) 8 Cal.4th 333, 340.)
       As noted above, section 391, subdivision (b)(4) defines a “vexatious litigant” as “a
person who . . . [h]as previously been declared to be a vexatious litigant by any state or
federal court of record in any action or proceeding based upon the same or substantially
similar facts, transaction, or occurrence.” Section 391, subdivision (b)(4) does not
indicate what must be “the same or substantially similar” to the basis for the prior suit,

                                              20
and thus requires judicial construction. Courts—including the court below—have
construed section 391, subdivision (b)(4) to apply where the prior proceeding was based
the same or substantially similar facts, transaction, or occurrence as the current action.
(Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1581, disapproved on
other grounds by Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th
780, 785, fn. 7.) The parties appear to agree with that construction, as do we. At issue is
whether the person to be declared vexatious must be the plaintiff in the current action, as
Michael and Shelly contend.
       Section 391 defines “vexatious litigant” as “a person,” not a plaintiff, whose
litigation history contains particular behaviors (e.g., repeated attempts to relitigate
(subd. (b)(2))). Thus, by its plain language, section 391, subdivision (b)(4) allows any
party to an action to be declared a vexatious litigant. Under such a reading, anyone
previously declared to be a vexatious litigant in another jurisdiction could be declared a
vexatious litigant in California courts merely by being sued here. Such a result would be
absurd and inconsistent with the statutory purpose of “curb[ing] 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.” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169.) The passive act of
being sued constitutes neither a misuse of the court system, nor a waste of the time and
resources of the court system and other litigants.
       The foregoing is not to say that a defendant never can be declared a vexatious
litigant. Section 391, subdivision (b)(3) applies to any litigant—plaintiff or defendant—
who, “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.” (See John, supra, 63 Cal.4th at
p. 99 [appellate courts have the authority to declare a defendant appellant or writ
petitioner to be a vexatious litigant in the first instance during the course of an appeal

                                              21
from litigation the defendant or writ petitioner did not file under § 391, subd. (b)(3)].)
Applying section 391, subdivision (b)(3) to both plaintiffs and defendants advances the
purpose of the statute—curbing abuse of the judicial system. Likewise, applying
section 391, subdivision (b)(2) to any litigant, whether plaintiff or defendant, who
repeatedly litigates prior determinations is consistent with the statutory purpose. But, the
same cannot be said of an equally broad construction of section 391, subdivision (b)(4),
which could ensnare litigants who have ceased their vexatious ways. Accordingly, we
shall reverse the prefiling order, construing section 391, subdivision (b)(4) as applying
only to the plaintiff in the current action.
III.   DISPOSITION
       The judgment is reversed. On remand, the court is directed to (1) vacate its order
granting summary judgment and to enter a new order denying summary judgment and
(2) vacate its order declaring Michael and Shelly vexatious litigants and imposing a
prefiling requirement on them. The order sustaining Thompson’s demurrer to Briana’s
cross-complaint is affirmed. The parties are to bear their own costs on appeal.




                                               22
                                        _________________________________
                                        ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
PREMO, J.




Thompson v. Ioane; Thompson v. Ioane et al.; Thompson v. Ioane et al.
H042104; H043112; H043350
Trial Court:                                       Santa Clara County Superior Court
                                                   Superior Court No.: CV-179290


Trial Judge:                                       Honorable Paul M. Marigonda


Counsel for Plaintiff, Cross-defendant and         Law Office of James W. Duffy
Respondent:                                        James William Duffy
RICHARD L. THOMPSON
                                                   Trombadore Gonden Law Group
                                                   David M. Gonden
                                                   James J. Corbelli

Counsel for Defendant, Cross-complainant and       In propria persona
Appellant:
BRIANA C. IOANE

Counsel for Plaintiff and Respondent:              Law Office of James W. Duffy
RICHARD L. THOMPSON                                James William Duffy

                                                   Trombadore Gonden Law Group
                                                   David M. Gonden
                                                   James J. Corbelli


Counsel for Plaintiffs, Defendants and Appellants: In propria persona
MICHAEL S. IOANE, Sr., et al.

Counsel for Plaintiff and Respondent:              Law Office of James W. Duffy
RICHARD L. THOMPSON                                James William Duffy

                                                   Trombadore Gonden Law Group
                                                   David M. Gonden
                                                   James J. Corbelli

Counsel for Defendants and Appellants:             In propria persona
MICHAEL S. IOANE, Sr., et al.
