Filed 5/11/20 Kim v. Yun CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

CHUNG CHA KIM,

Plaintiff and Respondent,

v.

JUNG WONG YUN,

Defendant and Appellant.

E071523

(Super.Ct.No. FAMVS1702658)

OPINION

APPEAL from the Superior Court of San Bernardino County. Guy A. Bovée, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Jung Wong Yun, Defendant and Appellant in propria persona.

No appearance for Plaintiff and Respondent.

This is a divorce proceeding. Jung Wong Yun (husband) appeals, challenging orders refusing to set aside a default judgment against him, orders granting and denying restraining orders, and an order declaring him a vexatious litigant.

The only one of these orders that we can reach in this appeal is the order declaring the husband a vexatious litigant. And as to that order, we will affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

The husband and Chung Cha Kim (wife) were married in 2013 and separated in 2017. They have no children.

At all relevant times, the wife has been represented by counsel, while the husband has been in pro. per. He has labored under the further handicap that he is not fluent in English.

In August 2017, the wife filed a divorce petition. In September 2017, she served the summons and petition on the husband. He did not file a timely response. In October 2017, at the wife’s request, the trial court entered the husband’s default. It then entered a default judgment.

The husband filed a motion to set aside the default and default judgment. The trial court denied the motion. Thereafter, the husband filed three unsuccessful motions for reconsideration.

Meanwhile, in November 2017, the trial court granted the wife a restraining order against the husband. In March 2018, and again in June 2018, it denied the husband’s requests for a restraining order against the wife.

In July 2018, the trial court, on its own motion, issued an order to show cause why it should not declare the husband a vexatious litigant. In addition, in August 2018, the wife filed a motion to declare the husband a vexatious litigant, based on his actions in this case and in other cases. The husband did not file a formal opposition. He did file a “declaration” (although not under penalty of perjury), but it merely asserted generally that all of his actions in this case had been meritorious; it did not discuss other cases.

In September 2018, the trial court held a hearing at which the husband testified. At the end of the hearing, it declared him to be a vexatious litigant.

II

SCOPE OF THE APPEAL

The husband filed a notice of appeal on October 25, 2018. In it, he purported to appeal from orders entered on October 13, 2017, November 9, 2017, December 11, 2017, March 22, 2018, June 18, 2018, July 11, 2018, September 13, 2018, and October 18, 2018. These include the default, orders refusing to reconsider setting aside the default, orders granting or denying a restraining order, and the order granting the vexatious litigant motion.

In light of his status as a vexatious litigant, the husband sought leave of court to prosecute this appeal. (See Code Civ. Proc., § 391.7, subd. (a).) We granted him leave “to proceed with the appeal as to the order declaring him to be a vexatious litigant only.” He does not claim that this was error.

Accordingly, we consider only his contentions regarding the order declaring him a vexatious litigant. We do not consider any of his contentions regarding the default judgment. We also do not consider any of his contentions regarding the grant or denial of any restraining order.

III

THE VEXATIOUS LITIGANT ORDER

The husband contends that the vexatious litigant order is “erroneous.” However, he does not support this contention with any legal argument. He argues only that the vexatious litigant designation is “stigmatiz[ing].” He admits making “mistakes,” expresses “remorse,” and throws himself on the mercy of this court.

We cannot reverse based solely on mercy. “[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)

Every appellate brief must “support each point by argument and, if possible, by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) “‘When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.’ [Citations.]” (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 683.) Thus, the husband has waived his present contention.

Separately and alternatively, we also note that the wife’s vexatious litigant motion was meritorious.

A vexatious litigant is defined in several alternative ways. (Code Civ. Proc., § 391, subd. (b).) One definition is a person who, “[i]n 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 . . . finally determined adversely to the person . . . .” (Code Civ. Proc., § 391, subd. (b)(1).) The trial court specifically found the husband to be a vexatious litigant under this definition.

The wife showed that the husband had filed the following actions in pro. per.:

1. Yun v. Michael Kim, San Bernardino Superior Court Case No. FAMVS1800472, filed on February 15, 2018; dismissed with prejudice due to lack of jurisdiction.

2. Yun v. Monica Kim, San Bernardino Superior Court Case No. FAMVS1800473, filed on February 15, 2018; dismissed with prejudice due to lack of jurisdiction.

3. Yun v. Michael Kim, Los Angeles Superior Court Case No. 18STRO03295, filed on May 14, 2018; dismissed with prejudice.

4. Yun v. Monica Kim, Los Angeles Superior Court Case No. 18STRO3296, filed on May 14, 2018; dismissed with prejudice.

5. Yun v. Chung Cha Kim, Michael Kim, and Monica Kim, Los Angeles Superior Court Case No. BC712781, filed on July 5, 2018.

This showed that the husband came within the definition of a vexatious litigant, except in one respect — there was no evidence that the fifth action had been determined adversely to him.

At the hearing on the vexatious litigant motion, however, the trial court took further evidence. This may have included evidence regarding the termination of the fifth action. The husband has not provided us with a reporter’s transcript; hence, he cannot show that it did not.

In any event, we take judicial notice that, after the wife filed her vexatious litigant motion, but before the hearing on the motion, the husband dismissed the fifth action voluntarily.

Accordingly, the trial court properly declared the husband a vexatious litigant.

IV

DISPOSITION

The order declaring the husband a vexatious litigant is affirmed. Because the wife has not appeared, no costs are awarded.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MCKINSTER

J.

MILLER

J.