Written by attorney Anthony Payman Azemika

A California Court of Appeals has designated Wife as a vexatious litigant.

In affirming the Trial Court, a California Court of Appeals has found no merit in any of Wife’s contentions and has designated Wife as a vexatious litigant. In the case ofIn re Marriage of Falcone and Fyke (Falcone and Fyke II), Wife, representing herself during pre-trial proceedings, acknowledged that Trial Court had previously precluded her from filing any more motions with the Trial Court. Nevertheless, she made an oral motion under California Family Code Section 2031(b) for attorney’s fees. Wife noted that she had filed a current Income and Expense Declaration, and that she had made other fee requests in the past, but she asserted that she wanted to discuss some previously litigated issues regarding parties’ finances. Trial Court denied Wife’s request. When Wife sought appellate fees, Trial Court denied that request too. When Wife asked why, Trial Court said it had denied her requests as untimely, "among other reasons."

Trial Court then turned to Husband’s motion to exclude testimony and documents regarding Wife’s potential reimbursement claims. Trial Court found that Wife failed to produce documentation requested by Husband, except for two tax returns and two mortgage statements. Wife protested that she had produced between 12 and 25 boxes of "stuff," but later admitted that she had not given them to anyone. Trial Court refused to consider real estate appraisal that Wife had done following the trial continuance, and granted Husband’s request for exclusion, subject to reconsideration if Wife produced anything requested in Husband’s interrogatories. Trial Court then concluded that Husband and Wife had agreed to bifurcate the issue of attorney’s fees, which would be heard by declaration post-trial.

During the 2008 trial, Trial Court continually urged Wife, still representing herself, to keep her focus on relevant matters and to limit her cross-examination to such matters, so that she would have some trial time left to present her own issues. Despite these warnings, Wife continued to use her time on unproductive matters and failed to specifically address the property issues. Trial Court subsequently issued a statement of decision that was incorporated into the Judgment. That Judgment noted Wife’s lack of cooperation in settling any issues, her delaying tactics, her "virtually valueless and lengthy time-consuming cross-examination of each and every trial witness," her repetitive and numerous motions, her failure to provide discovery responses, and her "many emotional outbursts." Trial Court also described Wife’s filing of 87 proofs of service signed by "Dora Williams," a person who appeared to be fictitious and whose handwriting was remarkably similar to Wife’s (as testified to by a handwriting expert), and Wife’s apparent lies to Trial Court when asked to produce Ms. Williams as a witness.

Trial Court then equally divided parties’ $600,000 equity in their family home, charged Wife with $143,000 for rent for her living in the parties’ family home from the time they separated until the time of the trial, awarded Wife 56.5% of $1.8 million Wells Fargo trust account, designated those funds as a source for equalizing payment, awarded Husband $585,000 in reimbursement for separate property funds used by Wife over and above reasonable support, awarded Wife $261,000 for additional spousal and child support, and made other findings and distributions. In conclusion, Trial Court referred the issue of the fraudulent proofs of service (and another trust fund issue) to the Santa Clara County DA’s office for investigation.

Trial Court later ordered Husband and Wife to file requests for attorney’s fees and accompanying declarations by January 23, 2009, scheduled dates for responses and replies and set February 6, 2009, as the date that it would take the matter under submission. On January 21, 2009, Husband filed a request for $833,025 in fees, costs, and sanctions, along with 1500 page declaration by his attorney, who detailed and summarized Wife’s "scorched-earth litigation tactics" (13 appeals, 11 motions to vacate, 7-8 new trial motions, and uncounted objections to Trial Court’s orders). In opposition, Wife filed 100 pages of procedural, factual, and legal objections, along with "29 quibbles" about Husband’s attorney’s declaration and a lot of rehashing of final matters. Wife admitted receiving property with a gross value of $883,780 in the property division, but claimed that her current net worth was $35,000. Husband then filed detailed response regarding Wife’s financial situation, including her receiving over $1 million in post-separation funds that seemed to have disappeared. Trial Court then awarded Husband $833,025 in fees, costs, and sanctions, to be paid from Wife’s share of the Wells Fargo trust account. After considering the parties’ relative assets and debts, income, and expenses, along with Wife’s delaying tactics, Trial Court found that such an award would not impose an unreasonable financial burden on Wife.

In April 2009, Husband filed a motion with Trial Court, seeking to withdraw $700,000 from Wells Fargo trust account to buy a house, pay attorney’s fees, and pay for preparation of accounting necessitated by the divorce judgment. Husband asked Trial Court to confirm the accounting and to impose $5,000 sanctions on Wife for failing to pay Husband his half of the equity in their family home, as required by the divorce judgment. In response, Wife claimed that her pending appeal of the divorce judgment and attorney’s fee order deprived Trial Court of jurisdiction to hear Husband’s motion, and objected to both the accounting and the sanctions request. Husband followed up with another motion, asking Trial Court to award the family home to him, with offset to Wife and confirmation of the accounting, and sought sanctions of $15,000 under California Family Code Section 271. In opposition, Wife renewed her jurisdictional objection, as well as her other objections. Ultimately, Trial Court denied Husband’s request, finding that Wife’s pending appeal precluded its awarding the family home to Husband. After further proceedings, Trial Court confirmed Husband’s accounting with minor modifications, and awarded remaining Wells Fargo trust account funds to Husband, along with a lien against the family home for amounts still due to Husband under the divorce judgment and for sanctions.

In August 10, 2009, Husband filed a motion, seeking attorney’s fees and costs under California Family Code Section 271, as incurred in defending Wife’s many appeals. At hearing, Trial Court noted Wife’s contention that Husband’s fee request duplicated earlier requests for which fees had already been paid, and her claim that any further order would impose unreasonable financial burden on her. Trial Court found it difficult to ascertain Wife’s current financial position, but noted that her latest appeal seemed to be meritless. Trial Court also acknowledged that Wife had sought many fee waivers, claiming to have no money. However, based on testimony that Wife currently had real estate with several hundred thousand dollars in equity, Trial Court awarded $20,000 to Husband for appellate fees and $5,792 for trial fees.

Wife appealed the divorce judgment, post-judgment fee and sanctions award, post-judgment accounting and distribution, post-judgment sanctions order, and also a pre-judgment sanctions order. Now, acting on these various appeals, California Court of Appeals has affirmed Trial Court’s decisions.

DIVORCE JUDGMENT: The Appellate Court finds that (1) Trial Court did not err by failing to giveEpsteincredit to Wife regarding the rental value of the family home because Wife did not ask forEpsteincredit; separate property funds used by Wife over and above reasonable support are not a gift from Husband because there was no writing to indicate a gift; (2) Trial Court did not err in failing to give Wife additional trial time after she made unproductive use of time allotted her; (3) Wife failed to rebut Trial Court’s findings regarding her credibility as to proofs of service; (4) Trial Court did not err by imposing discovery sanction for Wife’s failure to produce documents; and (5) Trial Court could properly deny Wife’s oral fee motion as repetitive and could consider Wife’s repeated use of oral motions as a delaying tactic.

POST-JUDGMENT FEES AND SANCTIONS ORDER: The Appellate Court finds that (1) Trial Court did not deny Wife due process by requiring the fee issue to proceed on declarations; (2) Wife’s failure to seek all-purpose judge in timely fashion forfeits the issue on appeal; and (3) Wife’s objections to Trial Court findings regarding her financial burden are without merit.

REMAINING APPELLATE CONTENTIONS: The Appellate Court finds no merit in Wife’s contentions regarding sanctionability of her conduct, adequacy of Husband’s pleadings, or reasonableness of Trial Court’s orders.

VEXATIOUS LITIGANT: The Appellate Court finds that Wife’s conduct in the Appellate Court alone in the preceding seven years meets the definition of a vexatious litigant in that Wife "has commenced, prosecuted, or maintained in propria persona (representing herself) at least five litigations that have been finally determined aversely to her . . .." Accordingly, Appellate Court orders that Wife is precluded from filing any new litigation in any California court in pro per without first obtaining leave of presiding judge of that court.

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