Filed 3/20/13 Sanai v. Saltz CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


CYRUS M. SANAI,                                                      B232770

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC235671)
         v.

HARVEY A. SALTZ et al.,

         Defendants and Respondents.



         APPEAL from an order of the Superior Court of Los Angeles County, Kevin C.
Brazile, Judge. Reversed with directions.
         Cyrus Sanai, in pro. per., for Plaintiff and Appellant.
         Jacobson Russell Saltz & Fingermann, Michael J. Saltz, Colby A. Petersen and
Blair Schlecter, for Defendants and Respondents.
                                                                        1
       Cyrus M. Sanai originally sued The U.D. Registry, Inc. (UDR) and its owner,
Harvey A. Saltz, in September 2000 for several torts and for violation of statutes
regulating consumer credit reporting agencies based on UDR’s negative credit reports
following a dispute between Mr. Sanai and his landlord over the amount of rent due for a
Newport Beach apartment Mr. Sanai had leased. Notwithstanding more than 12 years of
                                                                                 2
extremely contentious litigation, the case remains unresolved in the trial court. In the
most recent episode of this ongoing saga, on April 28, 2011 the trial court declared
Mr. Sanai a vexatious litigant and prohibited him, pursuant to Code of Civil Procedure
section 391.7, from filing in propria persona any new litigation in the courts of this state




1
       UDR was acquired by First Advantage Corporation in April 2004. On April 21,
2005 we granted Mr. Sanai’s unopposed motions to substitute First Advantage
Corporation for UDR in the appeal then pending before us. First Advantage Corporation
thereafter actively participated in the litigation and was expressly identified as UDR’s
successor in interest. (See, e.g., Sanai v. Saltz (2009) 170 Cal.App.4th 746, 751 (Sanai
2009).) First Advantage Corporation was itself subsequently acquired, although the
parties disagree whether by Corelogic, Inc. or its subsidiary Corelogic US, Inc.—a
dispute we refused to resolve. The Irvine Company, which has an ownership interest in
the entity that had leased the apartment to Mr. Sanai, is also named as a defendant in the
current, operative pleading. For consistency and clarity we refer to the defendants
collectively as the Saltz parties.
2
        Although Mr. Sanai has suffered repeated defeats in the trial court, he has been
more successful before this court. (See Sanai v. Saltz (June 28, 2005, B174924,
B170618) [nonpub. opn.] (Sanai 2005) [reversing denial of Mr. Sanai’s motion to set
aside as void the judgment entered during appeal of the order denying special motion to
strike and remanding with directions to conduct further proceedings based on the state of
the pleadings on January 16, 2001]; Sanai 2009, supra, 170 Cal.App.4th 746 [reversing
in part judgment entered after trial court granted motions for judgment on the pleadings
filed by Mr. Saltz and UDR]; see also Sanai v. Saltz (Mar. 21, 2002, B147392) [nonpub.
opn.] (Sanai 2002) [affirming trial court’s denial of special motion to strike filed by
Mr. Saltz and UDR]; Sanai v. Saltz (Sept. 16, 2010, B219963) (Sanai 2010) [nonpub.
opn.] [affirming trial court’s denial of special motion to strike Mr. Sanai’s first amended
supplemental verified complaint].)
                                              2
without first obtaining leave of the presiding judge or justice of the court where the
                                  3
litigation is proposed to be filed. We reverse that order.
                  FACTUAL AND PROCEDURAL BACKGROUND
       This case was last before us following the trial court’s September 28, 2009 denial
of the Saltz parties’ special motion to strike the first four causes of action of Mr. Sanai’s
first amended supplemental verified complaint. (See Sanai 2010, supra (Sept. 16, 2010,
            4
B219963).) The Saltz parties filed their notice of appeal on October 27, 2009. We
affirmed that order in a nonpublished opinion filed on September 16, 2010. (Ibid.)
       On February 18, 2010, while their appeal was pending in this court, the Saltz
parties moved in the trial court to declare Mr. Sanai a vexatious litigant pursuant to Code
                                                              5
of Civil Procedure sections 391, subdivision (b), and 391.1. The Saltz parties also
sought and obtained over Mr. Sanai’s objection permission for the motion to be heard on
shortened time and for leave to extend the page limit for the memorandum in support of
the motion. On March 10, 2010 we granted Mr. Sanai’s petition for writ of supersedeas,
ruling the vexatious litigant motion was subject to an automatic stay of proceedings under
section 916, subdivision (a), triggered by the filing of the Saltz parties’ appeal, as
described in Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180 [appeal from
denial of special motion to strike under § 425.16 effects an automatic stay of the trial
court proceedings].)

3
       The court did not grant Mr. Saltz and UDR’s additional request that Mr. Sanai be
required to furnish security as a condition to proceeding with this litigation. (See Code
Civ. Proc., §§ 391.1-391.3.)
4
        Prior to filing their special motion to strike, the Saltz parties had demurred to the
fifth cause of action of the first amended supplemental verified complaint, which sought
to vacate as void or voidable an award of statutory damages/sanctions of $500 awarded to
the Saltz parties pursuant to Code of Civil Procedure section 724.050, subdivision (e),
earlier in the proceedings and an award of attorney fees of $50,501.25 pursuant to Code
of Civil Procedure section 724.080. Shortly after denying the special motion to strike,
the trial court sustained the demurrer without leave to amend.
5
       Statutory references are to the Code of Civil Procedure unless otherwise indicated.
                                              3
       Our remittitur in Sanai 2010 issued on November 16, 2010. On December 16,
2010 the Saltz parties renewed their motion to declare Mr. Sanai a vexatious litigant with
a 63-page supporting memorandum, several declarations and multiple volumes of
exhibits. The Saltz parties contended Mr. Sanai must be found to be a vexatious litigant
as a matter of law pursuant to section 391, subdivision (b)(4), because the Ninth Circuit
had already found him to be a vexatious litigant for his meritless attacks on federal
judges. Although not expressly referring to section 391, subdivision (b)(3), which
defines a vexatious litigant to include a self-represented litigant who “repeatedly files
unmeritorious motions, pleadings, or other papers . . . or engages in other tactics that are
frivolous or solely intended to cause unnecessary delay,” the moving papers also
appeared to assert Mr. Sanai was properly found to be a vexatious litigant on this
alternate ground. More than 40 pages of the 63-page supporting memorandum were
devoted to the Saltz parties’ argument Mr. Sanai could not succeed on the merits of his
four remaining causes of action, a prerequisite to an order requiring security pursuant to
section 391.1.
       On January 18, 2011 the court rejected Mr. Sanai’s contention it lacked
jurisdiction to decide the vexatious litigant motion because the Saltz parties, in filing their
second motion, had failed to comply with section 1008’s procedural requirements for
reconsideration of their first, unsuccessful motion. The court ruled the dismissal of the
initial motion, based on our order granting Mr. Sanai’s petition for writ of supersedeas,
was procedural only and did not preclude a determination on the merits of the new
motion. On February 9, 2011 Mr. Sanai filed his opposition papers; and on February 16,
2011 the Saltz parties filed a lengthy reply in support of the motion in which they referred
specifically to section 391, subdivision (b)(3), as a basis for a vexatious litigant finding
and also argued for the first time that Mr. Sanai had filed in propria persona more than
five unsuccessful proceedings or civil actions in the past seven years within the meaning
of section 391, subdivision (b)(1). Mr. Sanai objected to the Saltz parties’ attempt to
raise new grounds for a vexatious litigant finding in their reply papers.

                                              4
       After a hearing on February 18, 2011 the court ruled the Saltz parties had failed in
their moving papers to satisfy their burden by presenting sufficient evidence to enable the
court to find Mr. Sanai a vexatious litigant under section 391, subdivision (b)(3) or (4)—
specifically rejecting their argument that Mr. Sanai’s conduct in repeatedly filing motions
to tax costs or his frequent recusal motions and objections to the various trial judges who
had presided over the case constituted tactics that were frivolous or solely intended to
cause unnecessary delay. However, the court observed the arguments raised for the first
time in the reply papers might persuade it to declare Mr. Sanai a vexatious litigant.
Although those arguments were largely based on exhibits submitted with the moving
papers, the court explained it would be improper to consider them without giving Mr.
Sanai an opportunity to respond. Accordingly, it allowed Mr. Sanai to submit a further
opposition and set a new hearing on the motion.
       The court heard further argument on April 22, 2011 and took the matter under
submission. On April 28, 2011 the court filed its order, granting the motion in part. The
court declared Mr. Sanai to be a vexatious litigant pursuant to section 391,
subdivision (b)(1) and (3), and issued a prefiling order pursuant to section 391.7. The
court again rejected the contention the order of the Judicial Council of the Ninth Circuit
imposing sanctions, including a prefiling review order, on Mr. Sanai for filing frivolous
misconduct complaints against federal judges was a proper basis for a vexatious litigant
finding under section 391, subdivision (b)(4), because the Saltz parties had failed to
establish that the federal proceeding was “based upon the same or substantially similar
facts, transaction, or occurrence” as the case at bar. Similarly, the court found neither
Mr. Sanai’s conduct with respect to motions to tax costs, which are essentially defensive
in nature, nor his repeated challenges to the bench officers presiding in the case, with
respect to which Mr. Sanai has had some success, constituted “a pattern that rises to the
level of a frivolous litigation tactic” within the meaning of section 391, subdivision
(b)(3). However, the court found Mr. Sanai was a vexatious litigant under subdivision
(b)(3) based on other conduct in the case, specifically his filing of improper memoranda

                                              5
of costs, attempting to acquire a fraudulent abstract of judgment, refusing to execute a
satisfaction of judgment because he had been overpaid and failure to serve proofs of
service or notations of mailing.
       In addition, notwithstanding its conclusion with respect to section 391, subdivision
(b)(4), the court found Mr. Sanai was a vexatious litigant under section 391, subdivision
(b)(1), based on his unsuccessful filing of judicial misconduct complaints concerning
19 federal district court and appellate judges within the past seven years. (See In re
Complaint of Judicial Misconduct (Jud. Council of the 9th Cir. 2010) 623 F.3d 1101.)
The court, however, declined to make a finding under subdivision (b)(1) based on other
cases identified by the Saltz parties without providing the dates for final determination or
on unsuccessful writ petitions filed by Mr. Sanai in this proceeding, explaining as to the
latter point, “Defendants provide no authority in their motion or reply briefs that each
denied appeal or writ may be considered a separate proceeding or litigation that has been
finally determined against Plaintiff.” (Emphasis in original.)
       The court continued the motion to the extent it sought an order requiring Mr. Sanai
to furnish security under section 391.3, apparently to permit an evidentiary hearing
pursuant to section 391.2. It does not appear from the appellate record that such a
hearing has ever been held, that the trial court has determined there is no reasonable
probability Mr. Sanai will prevail in the litigation against the Saltz parties or that
Mr. Sanai has been ordered to furnish security.
                                       DISCUSSION
       1. Governing Law
              a. California’s vexatious litigant statutes
       “The vexatious litigant statutes (§§ 391-391.7) 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.” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169.) The statutes
provide two complementary sets of remedies: “In pending litigation, a defendant may

                                               6
have the plaintiff declared a vexatious litigant and, if the plaintiff has no reasonable
probability of prevailing, ordered to furnish security. If the plaintiff fails to furnish the
security, the action will be dismissed. [Citation.] In addition, a potential defendant may
prevent the vexatious litigant plaintiff from filing any new litigation in propria persona by
obtaining a prefiling order and, if any new litigation is inadvertently permitted to be filed
in propria persona without the presiding judge’s [or presiding justice’s] permission, may
then obtain its dismissal.” (Id. at p. 1171; see Bravo v. Ismaj (2002) 99 Cal.App.4th 211,
221 [§ 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”].)
       Section 391, subdivision (b), identifies four situations in which a litigant may be
deemed vexatious, two of which are at issue in this case: Under subdivision (b)(1) a
person is a vexatious litigant if “[i]n the immediately preceding seven-year period [he or
she] has commenced, prosecuted, or maintained in propria persona at least five litigations
other than in small claims court that have been . . . finally determined adversely to the
person.” “Litigation” for purposes of the vexatious litigant statues is broadly defined to
mean “any civil action or proceeding, commenced, maintained or pending in any state or
federal court” (§ 391, subd. (a)), which has consistently been held to include appeals and
certain writ proceedings. (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1170; McColm
v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1215 (McColm).)
       Under section 391, subdivision (b)(3), a person is a vexatious litigant if he or she,
while acting in propria persona, “repeatedly files unmeritorious motions, pleadings, or
other papers, conducts unnecessary discovery, or engages in other tactics that are
                                                            6
frivolous or solely intended to cause unnecessary delay.” “Not all failed motions can

6
       Under section 391, subdivision (b)(4), a person is a vexatious litigant if he or she
has previously been declared to be a vexatious litigant by any state or federal court “in
any action or proceeding based upon the same or substantially similar facts, transaction,
or occurrence.” The Saltz parties argued in the trial court that Mr. Sanai fell within this
fourth definition of a vexatious litigant based on the pre-filing review order issued by the
                                              7
support a vexatious litigant designation. The repeated motions must be so devoid of
merit and be so frivolous that they can be described as a ‘“flagrant abuse of the system,”’
have ‘no reasonable probability of success,’ lack ‘reasonable or probable cause or
excuse’ and are clearly meant to ‘“abuse the processes of the courts and to harass the
adverse party . . . .”’” (Morton v. Wagner (2007) 156 Cal.App.4th 963, 972; see Golin v.
Allenby (2010) 190 Cal.App.4th 616, 639, fn. 29 [“[t]he vexatious litigant statutes do not
define ‘frivolous’ but we note that under section 128.5, subdivision (b)(2), this term is
defined as ‘(A) totally and completely without merit or (B) for the sole purpose of
harassing an opposing party’”].)
       Although an interlocutory order by the trial court designating a person to be a
vexatious litigant and entering a prefiling order under section 391.7 is not expressly made
appealable by section 904.1 or any other statute, such an order is immediately reviewable
under either section 904.1, subdivision (a)(6), as an injunction (see Luckett v. Panos
(2008) 161 Cal.App.4th 77, 90) or the collateral order doctrine because it is a final
decision on a matter incidental to the pending action and directs the party identified as a
vexatious litigant to perform an act, that is, to obtain an order from the presiding justice
or judge before filing any future litigation. (See Lester v. Lennane (2000) 84 Cal.App.4th
536, 561; Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297-298.)
              b. Standard of review
       The trial court’s determination a person is a vexatious litigant is generally
reviewed for abuse of discretion. (Fink v. Shemtov, supra,180 Cal.App.4th at p. 1169;
Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1498-1499.) The
findings upon which that determination is based will be upheld if supported by
substantial evidence. (Fink, at p. 1169.) However, when “‘the issue on appeal turns on a


Judicial Council of the Ninth Circuit on September 30, 2010 in light of Mr. Sanai’s
multiple frivolous misconduct complaints against federal judges. (In re Complaint of
Judicial Misconduct, supra, 623 F.3d 1101.) The Saltz parties do not contend on appeal
the trial court erred in ruling that this order did not arise from the same or substantially
similar facts, transaction or occurrence as the case at bar.
                                              8
failure of proof [in the trial court], the question for a reviewing court becomes whether
the evidence compels a finding in favor of the [moving party] as a matter of law.
[Citations.] Specifically, the question becomes whether the [moving party’s] evidence
was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to
leave no room for a judicial determination that it was insufficient to support a finding.”’”
(Sonic Mfg. Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466;
see generally Valero v. Board of Retirement of Tulare County Employees’ Retirement
Assn. (2012) 205 Cal.App.4th 960, 965.)
       The meaning of statutory language presents a question of law we review de novo
(In re Tobacco II Cases (2009) 46 Cal.4th 298, 311; People ex rel. Lockyer v. Shamrock
Foods Co. (2000) 24 Cal.4th 415, 432.) As several appellate courts have observed,
portions of the vexatious litigant statutes have been “broadly interpreted.” (See, e.g.,
Forrest v. Dept. of Corporations (2007) 150 Cal.App.4th 183, 195, disapproved in
Shalant v. Girardi, supra, 51 Cal.4th at p. 1172 & fn. 3; McColm, supra, 62 Cal.App.4th
1211; In re Shieh (1993) 17 Cal.App.4th 1154, 1167.) Yet other decisions have upheld
the vexatious litigant statutes against constitutional challenges on the ground they are
narrowly drawn and thus do not impermissibly invade the right of access to the courts.
(See, e.g., Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 55-57, 60; Luckett v.
Panos, supra, 161 Cal.App.4th at p. 81; In re R.H. (2009) 170 Cal.App.4th 678, 702;
Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 541.) As the Supreme Court
cautioned in its most recent decision involving these provisions, courts must observe the
limits set by the applicable statutory scheme even if a broader rule would better serve the
purposes of the vexatious litigant statutes. (Shalant, at p. 1176.)
       2. Any Purported Procedural Irregularities in the Trial Court Proceedings Were,
          at Most, Harmless Error
       Mr. Sanai contends the trial court committed a variety of procedural errors that
require reversal of the determination he is a vexatious litigant. In particular, he insists the
court lacked jurisdiction to consider the Saltz parties’ December 16, 2010 motion because
they failed to satisfy the requirements for reconsideration of their earlier February 18,
                                               9
2010 motion, which had been dismissed after this court held proceeding with that motion
would violate the automatic stay triggered by the Saltz parties’ appeal of their
unsuccessful special motion to strike. He also argues the court improperly considered
arguments raised for the first time in the Saltz parties’ reply brief or advanced by the
court itself after his opposition to the motion had been filed.
       We have serious doubt whether the Saltz parties’ second vexatious litigant motion
was subject to the requirements of section 1008; but even if it was, the lifting of the stay
of trial court proceedings following our decision of the Saltz parties’ appeal constituted
new or different circumstances within the meaning of that provision, justifying a
subsequent application by the Saltz parties for the same order they had previously
requested. (See § 1008, subd. (b).) More fundamentally, unlike an order requiring the
plaintiff to furnish security, which may be made only upon motion of the defendant (see
§ 391.1), the section 391.7 prefiling order at issue in this appeal may be entered by the
court on its own motion. (§ 391.7, subd. (a); see In re R.H., supra, 170 Cal.App.4th at
p. 690.) Thus, any procedural deficiencies in the Saltz parties’ papers did not limit the
court’s ability to notify Mr. Sanai of its intention to consider whether such an order was
appropriate. It did precisely that, following receipt of the parties’ papers and an initial
hearing, and allowed Mr. Sanai additional time to respond to all issues concerning his
status vel non as a vexatious litigant under section 391, subdivision (b), including those
                                                                   7
raised for the first time in the Saltz parties’ reply memorandum. Because the court could
properly consider the issue on its own motion and, in fact, provided Mr. Sanai with notice
and an adequate opportunity to address the matter, any procedural irregularities were
necessarily harmless. (Cal. Const., art. VI, § 13 [“[n]o judgment shall be set aside, or
new trial granted, in any cause . . . for any error as to any matter of procedure, unless
after an examination of the entire cause, including the evidence, the court shall be of the
7
        Contrary to Mr. Sanai’s assertion in this court, although permitting him an
opportunity to respond to new arguments in the Saltz parties’ reply papers, the trial court
did not limit his additional opposition papers to those points, expressly directing him to
brief “the issue of Plaintiff’s status as a vexatious litigant within the meaning of 391(b).”
                                              10
opinion that the error complained of has resulted in a miscarriage of justice”]; Code Civ.
Proc., § 475 [“[n]o judgment, decision, or decree shall be reversed or affected by reason
of any error, ruling, instruction, or defect, unless it shall appear from the record that such
error, ruling, instruction, or defect was prejudicial . . . and that a different result would
have been probable if such error, ruling, instruction, or defect had not occurred or
existed”].)
       We similarly reject Mr. Sanai’s contention he was prejudiced by the denial of an
evidentiary hearing at which he could present live testimony and cross-examine
witnesses. To be sure, section 391.2, which governs the procedures for a motion for an
order requiring security, contemplates the presentation of “evidence, written or oral, by
witnesses or affidavit, as may be material to the ground of the motion.” As discussed,
the trial court continued the hearing on the Saltz parties’ motion for security, presumably
to conduct an evidentiary hearing on the question whether there is a reasonable
probability Mr. Sanai will prevail in the litigation. The ruling on that aspect of the Saltz
parties’ motion (if there was one) is not before us. However, by its express terms
section 391.2 does not apply to a section 391.7 motion for a prefiling order. Moreover,
we do not construe section 391.2, as Mr. Sanai does, to give a party the right to present
oral testimony, but rather as permitting the court to hear witnesses in its discretion when
“material to the ground of the motion.” (See generally Cal. Rules of Court, rule
3.1306(a) [evidence received at a law and motion hearing must be by declaration or
request for judicial notice unless the court, for good cause shown, orders testimony or
cross-examination]; Schlessinger v. Rosenfeld, Meyer & Susman (1995) 40 Cal.App.4th
1096, 1105 [“a ‘hearing’ does not necessarily include ‘an opportunity to present live
testimony or be subject to cross examination’”].)
       Here, the parties had a full opportunity to present evidence by way of declaration
and exhibits, and Mr. Sanai has not identified any live testimony that would have been
germane to the determination of his status as a vexatious litigant. In short, he has failed
to demonstrate any purported error was prejudicial, that is, that it is reasonably probable a

                                               11
result more favorable to him would have been reached in the absence of the claimed
error. (See Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.)
       3. The Trial Court Erred in Determining Mr. Sanai Is a Vexatious Litigant
              a. The findings under section 391, subdivision (b)(1)
       The Saltz parties asserted in the trial court and maintain on appeal that Mr. Sanai
unsuccessfully prosecuted in propria persona at least five litigations during the seven
years preceding the hearing on their motion within the meaning of section 391,
subdivision (b)(1). Their position is based on cases discussed in a decision from the
United States District Court for the Western District of Washington (Sanai v. Sanai,
July 1, 2005, No. C02-2165Z), writ petitions filed in this court during the pendency of the
instant litigation and a judicial misconduct proceeding before the Judicial Council of the
Ninth Circuit. Although the trial court declined to base a vexatious litigant finding on the
first two categories of actions or proceedings, it concluded Mr. Sanai fell within the
definition of a vexatious litigant under section 391, subdivision (b)(1), because of his
unsuccessful pursuit of federal judicial misconduct complaints. This was error.
                     i. The federal judicial misconduct proceeding
                                                     8
       Mr. Sanai filed three misconduct complaints against six United States District
Court judges and 13 judges of the United States Court of Appeals for the Ninth Circuit,
who had been assigned to his civil cases or appeals or who participated in rulings with
regard to his prior misconduct complaints. Pursuant to the procedures prescribed by the
federal Rules for Judicial Conduct and Judicial Disability Proceedings (Judicial Conduct
Rules), the complaints were assigned separate docket numbers (a total of 20) for each
             9
judge named. In an order filed on November 25, 2009, Circuit Judge Reinhart dismissed


8
       The appellate record is not clear whether Mr. Sanai filed one complaint that he
thereafter amended twice or two complaints, one of which was subsequently amended.
9
       The commentary on Judicial Conduct Rule 8 observes “potential problems [are]
associated with a complaint that names multiple judges” and explains “separate docket
numbers for each subject judge . . . would help avoid difficulties in tracking cases,
                                            12
the complaints. Mr. Sanai petitioned for review. Judge Reinhart’s order was affirmed by
the Ninth Circuit Judicial Council on September 30, 2010. (In re Complaint of Judicial
Misconduct, supra, 623 F.3d 1101.) In addition to affirming the order, the Judicial
Council issued a pre-filing review order applicable to all misconduct complaints or
petitions for review filed by Mr. Sanai “that relate to this matter.”
       These unsuccessful federal judicial misconduct complaints (whether counted as
one, three or 20) do not fall within the ambit of “litigation”—“any civil action or
proceeding, commenced, maintained or pending in any state or federal court”—as
defined by section 391, subdivision (a). Although arguably a “civil” proceeding in the
broadest sense, as the trial court ruled, unlike a motion to disqualify a federal judge in a
pending case pursuant to title 28 United States Code section 455, a federal judicial
misconduct complaint is resolved not by a “court,” but by the” judicial council” of the
appropriate circuit pursuant to statute and rules of procedure adopted by the United States
Judicial Conference. (See 28 U.S.C. § 351.)
       With respect to circuit or district court judges sitting within the jurisdiction of the
Ninth Circuit, judicial misconduct complaints are filed with the Ninth Circuit’s clerk
(28 U.S.C. § 351(a); Judicial Conduct Rules, rule 7(a)(1)), evaluated initially by the chief
judge of the circuit or, if that judge is disqualified, by the most senior circuit judge
available (28 U.S.C. §§ 351(c), 352; Judicial Conduct Rules, rule 11), reviewed by the
Ninth Circuit Judicial Council or a panel of at least five members of the Council
(28 U.S.C. § 352(c), (d); Judicial Conduct Rules, rule 18), and finally, under specified
circumstance, referred to the Judicial Conference of the United States with the circuit
council’s recommendation for action. (28 U.S.C. § 354(b); Judicial Conduct Rules, rule
20(b)(1)(C), (b)(2).) Although the judicial council for each circuit is comprised of
district court and court of appeals judges and is authorized to hold hearings, take
testimony, issue subpoenas and make orders (28 U.S.C. § 332(a)(1), (d)(1)), it is not itself


particularly if a complaint is dismissed with respect to some, but not all of the named
judges.”
                                              13
a “court,” but, as its name denotes, a “council,” created to improve the administration of
justice. (28 U.S.C. § 351(d); see generally Dakolias & Thachuk, Attacking Corruption in
the Judiciary: A Critical Process in Judicial Reform (2000) 18 Wis. Internat. L.J. 353,
385-386.) In its own words the Ninth Circuit Judicial Council is charged with
“support[ing] the effective and expeditious administration of justice and the safeguarding
of fairness in the administration of the courts within the circuit.” (See
http://www.ca9.uscourts.gov/judicial_council/judicial_council.php [as of March 20,
2013.)
         The Saltz parties note that Ninth Circuit Chief Judge Kozinski, in ordering a
complainant in an unrelated matter to show cause why sanctions should not be imposed
for filing a frivolous misconduct complaint, commented, “A complaint of judicial
misconduct is a court filing and is therefore subject to normal constraints on such filings,
including the requirement of good faith and a proper factual foundation.” (In re
Complaint of Judicial Misconduct (Jud. Council of the 9th Cir. 2008) 527 F.3d 792, 797,
affd. (2008) 550 F.3d 769.) We accept Judge Kozinski’s conclusion with respect to the
good faith requirements for filing a misconduct complaint directed to a federal judge, but
do not understand his statement as mandating the conclusion that such a filing is a civil
proceeding in federal court within the meaning California’s vexatious litigant statutes.
Indeed, in support of his general proposition concerning the good faith prerequisites for
filing a misconduct complaint, Judge Kozinski relied upon In re Sassower (Jud. Council
of the 2d Cir. 1994) 20 F.3d 42, in which the Judicial Council for the Second Circuit
expressly distinguished the judicial misconduct complaint procedure from the “normal
processes of litigation,” while holding that both are subject to sanctions for abuse: “We
conclude that, just as those who abuse the normal processes of litigation may be restricted
in their opportunity to initiate new lawsuits, those who abuse the judicial misconduct
complaint procedure may also be restricted in their opportunity to initiate new
misconduct complaints.” (Id. at p. 44.)



                                              14
       The analogy to a misconduct complaint filed with our own Commission on
Judicial Performance, although not exact, is close. Both complaint processes are subject
to abuse. When abuse occurs, sanctions may be imposed. Nonetheless, neither is a
“litigation” within the meaning of the vexatious litigant statutes.
                     ii. The cases cited by Judge Zilly
       With respect to the various cases identified by United States District Judge
Thomas S. Zilly in his 2005 opinion in Sanai v. Sanai, supra (C02-2165Z), the trial court
found the Saltz parties’ evidence insufficient to establish they were finally determined
adversely to Mr. Sanai within the seven-year period immediately preceding December
16, 2010. In their brief in this court the Saltz parties respond only that Mr. Sanai
submitted no evidence to the trial court demonstrating these cases did not fall within the
relevant seven-year period (although, based on a footnote in the trial court’s minute
order, it appears he did assert at least two of those cases were outside the seven-year
window). However, it was the Saltz parties’ burden to establish this essential fact, not
Mr. Sanai’s burden to refute it. Moreover, as Mr. Sanai observes, it is impossible to tell
from Judge Zilly’s passing reference to these cases whether Mr. Sanai was self-
represented in each of them. Certainly, the record before us is not “‘“of such a character
and weight as to leave no room for a judicial determination that it was insufficient”’” to
support the court’s determination that Mr. Sanai was not a vexatious litigant based on
these cases. (See Sonic Mfg. Technologies, Inc. v. AAE Systems, Inc., supra,
                            10
196 Cal.App.4th at p. 466.)      The trial court’s decision not to base a vexatious litigant
filing on this ground was amply justified.

10
        The Saltz parties asked the trial court to take judicial notice of Judge Zilly’s 2005
opinion. Accordingly, even if Judge Zilly’s description of other actions involving Mr.
Sanai had contained greater detail, those statements, standing alone, would be
inadmissible hearsay. (See People v. Hernandez (2011) 51 Cal.4th 733, 741, fn. 3 [court
may not take judicial notice of the truth of hearsay statements in decisions and court
files]; Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [“we
cannot take judicial notice of the truth of hearsay statements in other decisions or court
files [citation], or of the truth of factual findings made in another action”].)
                                               15
                     iii. The writ proceedings
       The Saltz parties have identified six unsuccessful petitions filed by Mr. Sanai
during the pendency of the instant lawsuit—five writ petitions in this court and a petition
for review in the California Supreme Court—and assert each separately constitutes one of
the five required “litigations . . . finally determined adversely” to Mr. Sanai necessary to
                                 11
find him a vexatious litigant.        The trial court declined to make that finding, stating the
Saltz parties had provided no authority that each denied writ or appeal in a single lawsuit
is properly considered a separate litigation finally decided against the plaintiff within the
meaning of section 391, subdivision (b)(1).
       Apparently misperceiving the thrust of the trial court’s concern, the Saltz parties
note they had cited and relied upon McColm, supra, 62 Cal.App.4th 1211, 1216, which
held “‘any civil action or proceeding’ includes any appeal or writ proceeding.” In their
appellate brief they also cite In re Kinney (2011) 201 Cal.App.4th 951, 958 (“The
vexatious litigant statutes do not apply solely to the trial courts. Each writ petition and
appeal constitutes ‘litigation’”). Neither McColm nor Kinney, however, addresses
whether several unsuccessful appeals or writ proceedings during the course of an ongoing
lawsuit constitute more than one “litigation[] . . . finally determined adversely to the
person.” For his part, Mr. Sanai argues McColm and the cases following it have been
incorrectly decided and no appeal or writ proceeding during a pending trial court action is
properly considered a separate litigation within the meaning of section 391.
       Whether and how the vexatious litigant statutes apply to appeals and writ
proceedings—that is, whether they fall within the definition of “litigation” in section 391,
subdivision (a)—has two aspects. First, does a self-represented litigant subject to an
existing prefiling order need to obtain leave pursuant to section 391.7, subdivision (b),
before filing an appeal or an original writ petition in an appellate court, the issue
11
       Each petition sought review of an order denying Mr. Sanai’s motion to disqualify
one or more of the bench officers presiding in the case. As discussed, the trial court
concluded these repeated challenges by Mr. Sanai did not constitute a frivolous litigation
tactic within the meaning of section 391, subdivision (b)(3).
                                                  16
addressed in McColm. Second, to what extent does an unsuccessful appeal or writ
proceeding contribute to the determination the litigant is properly found to be vexatious,
the issue presented here.
         The Legislature definitively resolved the first issue when it amended section 391.7
in 2011 to expressly authorize a presiding justice, as well as a presiding judge, to permit
the filing of new litigation by a vexatious litigant subject to a prefiling order.
(Stats. 2011, ch. 49, § 1.) As explained by the Assembly Judiciary Committee,
“According to the Judicial Council [which sponsored the legislation], courts have held
that the vexatious litigant statutes also apply in the appellate courts, but this has not been
codified. . . . This bill would clarify that the vexatious litigant statute applies to matters
in the Courts of Appeal, as well as the trial courts . . . .” (Assem. Com. on Judiciary,
Rep. on Sen. Bill No. 731 (2011-2012 Reg. Sess.), as amended March 29, 2011, p. 6; see
Sen. Com. on Judiciary, Rep. on Sen. Bill No. 731 (2011-2012 Reg. Sess.), as introduced,
pp. 3, 6 [“This bill would add ‘presiding justice’ before ‘presiding judge’ to clarify that
this section also applies to the Courts of Appeal.” “The Judicial Council notes that it is
the practice of the courts to apply the vexatious litigant statute in the Courts of Appeal,
even though the current statutory scheme does not include the term ‘justice’ which would
indicate the statute is applicable to the Courts of Appeal. This bill would add the term
‘justice’ to clarify that the statute does apply in the Courts of Appeal. Adding the proper
terminology will make the statue consistent with case law.”].) This statutory change has
been implemented by the Judicial Council’s approval of optional form, MC-701 (rev. Jan.
1, 2013), Request To File New Litigation By Vexatious Litigant, which has separate
boxes to indicate whether the request is filed in the Court of Appeal or the superior
      12
court.


12
        The Judicial Council also approved a companion optional form, MC-702 (new
Jan. 1, 2013), Order To File New Litigation By Vexatious Litigant, which provides for an
order from either the Court of Appeal or the Superior Court and indicates under its
signature line, “Presiding Justice or Judge.”
                                              17
       There is no similar unambiguous statutory language or legislative history
addressing the second issue. However, if the word “litigation” in the phrase “filing any
new litigation” includes proceedings in the Courts of Appeal for purposes of prefiling
permission under section 391.7, subdivision (a), then we would generally presume the
same word in the phrase “commenc[ing], prosecut[ing], or maintain[ing] in propria
persona at least five litigations other than in a small claims court” in section 391,
subdivision (b)(1), also includes appellate proceedings. (See, e.g., People v. Briceno
(2004) 34 Cal.4th 451, 461 [word used in a statute presumed to have the same meaning
throughout]; see also Musaelian v. Adams (2009) 45 Cal.4th 512, 517 [“unless there is
evidence the Legislature had a contrary intent, logic and consistency suggest the same
language in analogous statutes should be construed the same way”].) That is apparently
the conclusion reached by our colleagues in Division Three of the Fourth Appellate
District in Fink v. Shemtov, supra, 180 Cal.App.4th 1160, who held an unsuccessful
appeal by Fink, acting in propria persona, from a judgment entered in favor of the
defendants following a bench trial and a separate unsuccessful appeal from a
postjudgment order in the same underlying case awarding the defendants attorney fees
constituted two litigations finally determined adversely to Fink for purposes of
determining he was a vexatious litigant as defined by section 391, subdivision (b)(1).
                            13
(Fink, at pp. 1173-1174.)



13
       The Fink court counted as a third litigation finally determined adversely to Fink
his unsuccessful appeal in an action he had filed in propria persona against an entity and
two of its employees. (See Fink v. Shemtov, supra, 180 Cal.App.4th at p. 1171.) All
three defendants were personally served; none answered; and default was entered against
them. However, the trial court entered judgment only against the entity, explaining the
individual defendants had participated in the transaction in their representative capacities.
Fink appealed. The Court of Appeal affirmed, holding the complaint failed to adequately
allege fraud by the employees, thus their failure to answer did not constitute admissions
sufficient to establish individual liability. (See ibid.) Although that appeal was certainly
determined adversely to Fink, as the court held, the lawsuit itself, which resulted in a
default judgment in favor of Fink against the corporate defendant, was not.
                                             18
       Although relying on McColm, supra, 62 Cal.App.4th at page 1215, to broadly
define the term “litigation” to include “any appeal or writ proceeding” (see Fink v.
Shemtov, supra, 180 Cal.App.4th at pp. 1170, 1172), the Fink court also held the
summary denial of a writ petition does not necessarily constitute a litigation that has been
finally determined adversely to the person within the meaning of section 391, subdivision
(b)(1). Based on the analysis by the Supreme Court in Leone v. Medical Board (2000)
22 Cal.4th 660—a case holding the judicial power of the appellate courts is not
unconstitutionally impaired when the Legislature limits review of judgments in
administrative mandate actions in cases of physician discipline to extraordinary writs—
Fink distinguished “writ petitions challenging pretrial superior court rulings that could
also be reviewed on appeal from the judgment ultimately entered in the action” from
“situations in which a writ petition was the only authorized mode of appellate review.”
(Fink, at p. 1172.) An appellate court’s summary denial of the former type of writ
petition, the Fink court held, cannot constitute a “final” determination of litigation within
the meaning of section 391, subdivision (b)(1), because the court does not take
jurisdiction over the case and does not give the legal issue full plenary review. (Fink, at
p. 1172.) However, when a writ petition is the exclusive means of obtaining appellate
review, the Supreme Court in Leone had held, “an appellate court must judge the petition
on its procedural and substantive merits, and a summary denial of the petition is
necessarily on the merits. [Citations.] An appellate court that summarily denies a writ
petition for lack of substantive merit or for procedural defect thereby fulfills its duty to
exercise the appellate jurisdiction vested in it by the state Constitution’s appellate
jurisdiction clause.” (Leone, at p. 670.) According to Fink, under those circumstances an
appellate court’s summary denial of this type of writ petition, including, as here, a writ
petition challenging a ruling on a motion to disqualify a trial judge under section 170.3, is
properly considered a final determination of litigation for purposes of qualifying for
vexatious litigant status under section 391, subdivision (b)(1). (Fink, at p. 1173.)



                                              19
       Even applying these expansive holdings from Fink v. Shemtov, supra,
180 Cal.App.4th 1160, the Saltz parties have identified four, not six, writ proceedings
initiated by Mr. Sanai and determined adversely to him in this court during the pendency
of this lawsuit. On June 18, 2010, while Sanai 2010 was pending in this court and after
we had granted Mr. Sanai’s petition for writ of supersedeas, Mr. Sanai filed a petition for
writ of mandate to review the denial of a disqualification motion under section 170.3
(B225160). On July 6, 2010 we granted Mr. Sanai’s request to file a supplemental
petition, which included information about events occurring in the trial court subsequent
to the filing of the initial petition. On July 14, 2010 we denied Mr. Sanai’s request to file
a second supplemental petition “without prejudice to the filing of a new, separate
petition, on or before July 26, 2010, that includes all issues presented in the original and
first supplemental petition and any new issues petitioner wishes to raise.” Pursuant to
this court’s direction, on July 26, 2010 Mr. Sanai filed a new petition for writ of mandate
that included the items identified in our July 14, 2010 order (B226058). Thereafter, on
September 29, 2010, after receiving an opposition to the new petition and a reply in
support of it, we denied the petition. The following day we dismissed the initial petition
(that is, B225160), explaining it “has been rendered moot by this court’s order of
September 29, 2010 denying Sanai’s petition number B226058.” Mr. Sanai filed a
petition for review following our denial of the petition in B226058, which the Supreme
Court denied without comment (S187176).
       Contrary to the Saltz parties’ calculation, these three petitions—B225160,
B226058 and S187176—can be considered, at most, a single litigation finally determined
adversely to Mr. Sanai under section 391, subdivision (b)(1): Dismissal of the petition in
B225160 was neither on the merits nor, in light of the superseding petition he filed at our
suggestion, necessarily adverse to Mr. Sanai. (See Sagaser v. McCarthy (1986)
176 Cal.App.3d 288, 314 [“because we dismiss the case as moot, we do not have a
prevailing party on the merits on appeal”].) Similarly, denial of the petition for review in
S187176 was not on the merits (see Trope v. Katz (1995) 11 Cal.4th 274, 287, fn. 1

                                             20
[denial of a petition for review is not an expression on the merits of the cause]), and the
Supreme Court had not taken jurisdiction over the matter within the meaning of Leone v.
Medical Board, supra, 22 Cal.4th 660 and Fink v. Shemtov, supra, 180 Cal.App.4th 1160.
In short, the disqualification issues presented by B225160, B226058 and S187176 were
finally resolved only once.
       The interrelationship among these three petitions, moreover, illustrates the
deceptive simplicity of equating the term litigation for purposes of section 391.7’s
prefiling requirement with the phrase “litigation[] . . . finally determined adversely” to the
putative vexatious litigant in section 391, subdivision (b)(1). Filing a new complaint in
superior court in propria persona and filing an appeal in this court after that complaint has
dismissed with prejudice both require permission if there is an outstanding prefiling
order. But because the civil action commenced by the complaint is not finally
determined until the appeal has been resolved and a petition for review denied, the trial
court proceeding, the appeal and the petition for review should properly be considered
only one litigation, not three, for purposes of determining whether the plaintiff is a
vexatious litigant under subdivision (b)(1). (See Morton v. Wagner, supra,
156 Cal.App.4th at pp. 970-971 [“[a]ny determination that a litigant is vexatious must
comport with the intent and spirit of the vexatious litigant statute . . . 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”].)
       Similarly, multiple appeals or writ petitions during the course of a single lawsuit
may each require permission from the presiding justice if a prefiling order has previously
been issued. And without question, repeatedly filing frivolous writ petitions during the
course of that lawsuit can properly subject a self-represented party to a vexatious litigant
finding under section 391, subdivision (b)(3). (See, e.g., In re Kinney, supra,
201 Cal.App.4th at p. 960; cf. In re Whitaker (1992) 6 Cal.App.4th 54, 55-56 [based on

                                              21
multiple unsuccessful actions in superior court and in writ and appellate proceedings,
litigant found to be vexatious within both § 391, subd. (b)(1) & (b)(3)].) But the lawsuit
itself and the issues raised in it are only finally determined after all proceedings in the
trial court have concluded and all appeals and writ matters have been decided. There is
then one “litigation” that has been finally determined adversely to the losing party. (Cf.
Shalant v. Girardi, supra, 51 Cal.4th at p. 1169 [“litigation” as defined in § 391,
subd. (a), cannot include every procedural step taken during an action or special
                14
proceeding].)        At the very least, it was not an abuse of discretion for the trial court to
conclude Mr. Sanai’s multiple writ petitions during this lawsuit do not make him a
vexatious litigant
                b. The findings under section 391, subdivision (b)(3)
       The trial court also determined Mr. Sanai was a vexatious litigant based on its
finding he had used tactics during the course of the lawsuit that were frivolous or solely
intended to cause unnecessary delay. This, too, was error.
       Section 391, subdivision (b)(3), defines a vexatious litigant as a party who, while
acting in propria persona, “repeatedly files unmeritorious motions, pleadings, or other

14
        Mr. Sanai aptly presents a hypothetical that illustrates the insidious consequences
of a contrary rule, which counts as separate litigations each unsuccessful appeal or writ
proceeding during a single lawsuit. Assume a plaintiff has sued six individuals in propria
persona. After the defendants’ motions for summary judgment are granted, the plaintiff
appeals and obtains a reversal as to one of the six defendants. At that point, neither the
superior court action nor the appeal has been finally determined adversely to the plaintiff.
But if we assume the summary judgment motions are heard separately and over a period
of many months, the losing plaintiff must file and prosecute six separate appeals. If the
plaintiff again prevails only as to one defendant, he or she could be branded a vexatious
litigant based on the maintenance of five unsuccessful appeals. That distinction, based
solely on matters of timing controlled by the defendants and the court, is both irrational
and inconsistent with the purpose of the vexatious litigant statutes. (See generally People
v. Pieters (1991) 52 Cal.3d 894, 898-899 [“‘[I]t is a settled principle of statutory
interpretation that language of a statute should not be given a literal meaning if doing so
would result in absurd consequences which the Legislature did not intend.’ [Citations.]
Thus, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to
conform to the spirit of the act.’”].)
                                                  22
papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or
solely intended to cause unnecessary delay.” The trial court interpreted this disjunctive
language to limit the express requirement of repeated misconduct to the first set of
abusive actions (filing unmeritorious motions, pleadings or other papers) and not the
others, stating, “Repeated conduct is therefore not necessarily required if the litigation
tactics engaged in by Plaintiff are frivolous or solely intended to cause unnecessary
delay.” The Supreme Court, however, has explained this aspect of the vexatious litigant
definition requires a finding the person has “repeatedly pursued unmeritorious or
frivolous tactics in litigation.” (Shalant v. Girardi, supra, 51 Cal.4th at pp. 1169-1170;
cf. People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 41 [according to
normal English usage, adverb preceding series of verbs modifies each verb]; see
generally Long v. United States (4th Cir. 1952) 199 F.2d 717, 719 [“[t]he use of the
adverb ‘forcibly’ before the first of the string of verbs, with the disjunctive conjunction
used only between the last two of them, shows quite plainly that the adverb is to be
interpreted as modifying them all”].) Indeed, if “repeatedly” modified only “files” and
not also “conducts” and “engages,” as the Saltz parties contend and the trial court ruled,
a self-represented plaintiff could be found a vexatious litigant based solely on a single
instance of serving “unnecessary discovery,” a plainly absurd result. (See Simpson
Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 27 [court should avoid a construction
of statutory language that would lead to absurd results].) Thus, the correct question is not
whether Mr. Sanai has ever engaged in frivolous tactics in his action against the Saltz
                                                                                    15
parties, but whether he had repeatedly done so. On this record, the answer is no.


15
        Although it may be true, as the trial court observed, that Mr. Sanai has engaged in
aggressive litigation tactics that reflect “an improper motive to grind down the other
side,” section 391, subdivision (b)(3), does not address “abusive” litigation tactics
generally, but only those that are either “frivolous” or “solely intended to cause
unnecessary delay.” (Compare, for example, § 128.7, subd. (b)(1), proscribing the filing
of court papers “presented primarily for an improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation.”)
                                             23
       As discussed, the trial court rejected the Saltz parties’ initial arguments that
Mr. Sanai’s repeated motions to tax costs, filed only in response to the Saltz parties’
various memoranda of costs, or his multiple challenges to the bench officers presiding in
the case, at least some of which ultimately proved successful, constituted frivolous
litigation tactics within the meaning of section 391, subdivision (b)(3). That
determination was well within the court’s discretion. (See Fink v. Shemtov, supra,
180 Cal.App.4th at p. 1169.)
              i. Section 1013 and notations of mailing
       Turning to issues raised in the Saltz parties’ reply memorandum and addressed by
Mr. Sanai in his sur-reply, the court concluded Mr. Sanai had engaged in vexatious
tactics by “filing improper memorandums of costs, failing to properly comply with
abstracts of judgment, and engaging in methods and practices with proofs of service.”
With respect to his treatment of proofs of service, the trial court criticized Mr. Sanai’s
refusal to include proofs of service or notations of mailing on service copies of
documents filed with the court—a practice that Mr. Sanai acknowledges. But as
Mr. Sanai argues, although section 1013, subdivision (b), provides papers served by mail
“shall bear a notation of the date and place of mailing or be accompanied by an unsigned
copy of the affidavit or certificate of mailing,” subdivision (h) of that provision expressly
provides subdivision (b) is “directory” only—that is, although obligatory, the failure to
comply does not invalidate the action to which the procedural requirement attaches. (See
City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 923-924; People v. McGee
(1977) 19 Cal.3d 948, 958.) There is no finding that Mr. Sanai did not actually serve any
of the documents without a section 1013, subdivision (b), certificate or notation of
mailing (although there have been claims that certain papers were never properly filed
                                                                   16
and served) or that he had violated a court order by this practice, which the trial court


16
       In its evaluation of Mr. Sanai’s practices regarding proofs of service, the trial court
referred to two earlier court orders. In the first, entered in connection with a discovery
dispute, the court (Judge Green) on May 12, 2006 commented, “This litigation is littered
                                              24
conceded may be “technically proper under the Code of Civil Procedure.” Nor was there
any showing that hearings had to be delayed as a result of the Saltz parties’ failure to
receive adequate notice. Under these circumstances no substantial evidence supports the
trial court’s determination this practice was either frivolous or solely intended to cause
unnecessary delay.
              ii. The memoranda of costs and abstracts of judgment
       The other litigation activities upon which the trial court based its vexatious litigant
determination are thoroughly described in Sanai 2009, supra, 170 Cal.App.4th at pages
757 through 759 and 779 through 781 and need not be repeated in detail here. In brief,
we had awarded Mr. Sanai his costs on appeal in Sanai 2005 and directed the trial court
to consider his request for restitution, initially made to us in connection with that appeal,
and to order reimbursements to the extent appropriate. As found by the trial court and
confirmed in our opinion in Sanai 2009, in pursuing recovery of his costs on appeal and
restitution, Mr. Sanai engaged in a variety of improper and abusive practices, including
seeking restitution in the form of attorney fees by way of a memorandum of costs, rather
than a noticed motion; improperly serving the memorandum of costs and then altering
court documents in an attempt to conceal the defective service; acquiring a fraudulent
abstract of judgment after the court had struck the original memorandum; and refusing to
execute a satisfaction of judgment because the Saltz parties had allegedly overpaid.


with claims that pleadings were never properly filed and served and there is some
credible evidence that this [discovery request] was not served, or at least received by
defendants, on or about October 27, 2005.” Notwithstanding that observation, no order
was entered regarding the methods for, or completion of proofs of, service. In the
second, on July 31, 2006 Judge Green found that Mr. Sanai had improperly served a
memorandum of costs directly on a corporate party without naming an officer or agent
for service. The court also stated it appeared the memorandum had been filed and served
“in a manner and time to prevent the parties from obtaining actual notice in time to
challenge it” and directed the parties to a local rule of court requiring notice that allows
the opposing party time to respond. However, once again there was no order requiring
completion of a certificate of mailing or inclusion of a notation of mailing on service
copies of papers filed with the court.
                                             25
       The evidence before the trial court fully supports its finding that these tactics were
frivolous within the meaning of section 391, subdivision (b)(3)— totally and completely
without merit and intended to abuse the processes of the courts and to harass the adverse
party. (See Morton v. Wagner, supra, 156 Cal.App.4th at p. 972; Golin v. Allenby, supra,
190 Cal.App.4th at p. 639, fn. 29.) Indeed, based on this misconduct the trial court
awarded statutory damages/sanctions and attorney fees, which we affirmed on appeal.
(Sanai 2009, supra, 170 Cal.App.4th at p. 783.) But one such set of inappropriate
litigation tactics involving the same (improper) attempt to recover costs, no matter how
egregious, is not enough: Under section 391, subdivision (b)(3), a vexatious litigant
determination could only be made only if Mr. Sanai had repeatedly pursued frivolous
tactics in the litigation. (Shalant v. Girardi, supra, 51 Cal.4th at pp. 1169-1170; see
Morton, at p. 972 [“there is no bright-line rule as to what constitutes ‘repeatedly’” in this
context, but “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”].) The evidence presented to the trial court was
insufficient to support such a determination here.
                                           * * *
       In reversing the trial court’s order, we do not intend to signal our approval of the
manner in which this litigation has been conducted. It has gone on far too long. It has
consumed far too much of the judicial system’s limited resources. Gamesmanship
appears too often to take precedence over reasonable efforts to resolve procedural
disputes and to address the merits of the remaining controversy. Civility and courtesy are
                                                                      17
absent. Strong oversight by the trial court is obviously necessary.        But applying a
vexatious litigant designation beyond the limits set by the applicable statutory scheme is
not the solution.

17
       At Mr. Sanai’s request we have considered whether in the interests of justice we
should direct that all further proceedings in this case be heard by a different trial judge.
(§ 170.1, subd. (c).) We decline to make such an order.
                                              26
                                      DISPOSITION
       The April 28, 2011 order is reversed. Mr. Sanai is to recover his costs on appeal,
but the trial court is directed to stay any enforcement of the cost award until it enters a
final judgment in the matter and assesses whatever setoffs may be appropriate in light of
other orders for sanctions, costs or attorney fees.




                                                   PERLUSS, P. J.

       We concur:



              WOODS, J.



              ZELON, J.




                                              27
