Filed 2/11/20 Marriage of Mhanna & Hage CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re the Marriage of FIDA MHANNA and GHASSAN HAGE. H045077

(Santa Clara County

Super. Ct. No. 2013-6-FL010520)

FIDA MHANNA,

Respondent,

v.

GHASSAN HAGE,

Appellant.

In this marital dissolution proceeding, Fida Mhanna brought a motion pursuant to Code of Civil Procedure section 391 to declare her former husband, appellant Ghassan Hage, a vexatious litigant. The court granted the motion after a lengthy hearing.

Hage contends on appeal that the trial court erred because it (1) permitted Mhanna’s counsel, David A. Yomtov, to introduce exhibits notwithstanding counsel’s failure to provide copies to Hage prior to the hearing, and (2) denied Hage’s request for a continuance of the hearing. Finding no error, we will affirm.

I. PROCEDURAL HISTORY

A judgment of dissolution was filed on October 23, 2014.

On January 19, 2017, Mhanna filed a request for order (the request) finding Hage to be a vexatious litigant pursuant to section 391. The request—which was under penalty of perjury and contained a detailed recitation of the alleged facts upon which it was based and an attachment listing 24 motions filed by Hage over a period of approximately two years—was accompanied by a memorandum of points and authorities and a declaration of counsel, Yomtov.

In the request, Mhanna alleged that the dissolution proceeding was resolved after a settlement conference on July 28, 2014, and her attorney accordingly substituted out of the case. Since the entry of judgment in October 2014, Hage had filed 24 separate requests for orders (hereafter motions). Mhanna included as an attachment to the request a summary that included each motion’s filing date, requested relief, hearing date, outcome, and related order filed. Mhanna stated that all of Hage’s motions “caused [her] to incur legal fees that [she could not] afford to pay.” She stated that her attorney had expended more than 140 hours to address Hage’s motions and to enforce Hage’s child support obligations. The legal fees incurred since the July 2014 settlement were in excess of $45,000.

Mhanna described from her perspective in the request the nonmeritorious nature of Hage’s motions. She stated that four of the motions were combined into a single hearing on February 26, 2015, at which time all four were denied by the court. She declared that a number of the motions were duplicative. Specifically, there were two motions to correct the judgment, four motions to prohibit Mhanna’s travel, two motions to release police records, two motions to modify attorney fee awards, and two custody modification motions. In several instances—including Hage’s motions seeking release of Mhanna’s immigration application file and to “issue a ‘defamation’ judgment against [Mhanna’s] counsel”—the court specifically found Hage’s motions to be frivolous. Mhanna declared that only two of the motions—a motion to correct judgment that was granted in part and denied in part and a motion to permit Hage to take the parties’ children to Lebanon, to which Mhanna ultimately stipulated—were meritorious. Mhanna stated in her summary that 15 of Hage’s motions were specifically denied by the court. Mhanna stated that one motion—pertaining to religious matters—was not served upon her and “was deemed frivolous and outside of the court’s jurisdiction.” (Original emphasis.)

Mhanna addressed a custody modification motion in which Hage sought “ ‘seventy[-]nine percent custody.’ ” After Mhanna requested pendente lite fees, Hage withdrew the custody request, only to refile it several months later, stating “his withdrawal had been made ‘conditionally.’ ”

Another motion by Hage concerned his request to amend a prior order in which Mhanna had been awarded $5,000 attorney fees, calling for payment to be deferred to 2016 and payable in $1,000 installments. Mhanna described Hage’s motion as one seeking to modify the order so that Hage could “put [paying the fees] off for a few years, but [he] offered no new evidence or law to support this request.” The court denied Hage’s motion; Hage had “still fail[ed] and refuse[d] to comply with this [attorney fee] order.”

Mhanna also identified a motion by Hage to require Mhanna to pay one-half of private school tuition. She stated the issue had been addressed in Hage’s prior motion to modify judgment; dissatisfied with the court’s decision then, Hage brought the new motion, “offer[ing] no new evidence, no changes in law, [and] no legal authorities.” The motion was denied.

In addition to the foregoing, Mhanna noted that Hage had threatened to file applications seeking contempt orders against her, notwithstanding the matters concerned issues for which no orders existed. Further, Hage filed a small claims action against Mhanna’s attorney, Yomtov, related to the family court proceedings, which complaint was denied.

In the points and authorities filed on Mhanna’s behalf in support of the request, Mhanna argued that Hage’s conduct ran afoul of the vexatious litigant statute in two respects. First, Hage’s filing of 24 motions since entry of judgment constituted being a vexatious litigant under section 391, subdivision (b)(1) which provides: “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. . . .” Second, Mhanna argued, Hage’s conduct was that of a vexatious litigant as defined under section 391, subdivision (b)(3) as follows: “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.”

Hage submitted points and authorities in opposition to the request. Based upon the record before us, he submitted no declaration under penalty of perjury responding to the facts alleged in the request. In Hage’s points and authorities, he countered that he should not be found a vexatious litigant, “but [the court should find Mhanna’s] Attorney David Yomtov as corrupted lawyer and [Mhanna] to be found as arrogant disobedient of the law supported by her lawyer. [Sic.]” (Original underscoring.) In Hage’s opposition, he did not dispute that he had filed the 24 motions enumerated in the request. And he concurred with Mhanna that, as to a number of the motions, the court had denied them. Hage also asserted in his opposition that he had filed three complaints in court against Yomtov (two of which also named Mhanna), three complaints with the California State Bar against Yomtov, and an accusation with the California Supreme Court against Yomtov.

On June 22, 2017, the court held a lengthy evidentiary hearing on the request. On August 1, 2017, the court filed an amended order granting the request. The court found that although Hage had partial success with a number of his motions, “[o]n balance . . . , the meritless or unnecessary motions far outweigh[ed] those that had merit.” The court thus concluded that Mhanna had “met her burden of proof and established . . . that [Hage met] the criteria for being declared a vexatious litigant pursuant to Code of Civil Procedure § 391, subdivision (b) et seq.” The court therefore ordered, inter alia, that Hage was barred from filing any further litigation while representing himself without his first obtaining leave of court from the presiding judge.

Hage filed a timely notice of appeal from the order.

II. DISCUSSION

A. Vexatious Litigant Statutes

As the California Supreme Court has explained: “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. [Citation.]” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169 (Shalant).) Under section 391, subdivision (b), a “ ‘[v]exatious litigant’ ” is “a person who has, while acting in propria persona, initiated or prosecuted numerous meritless litigations, relitigated or attempted to relitigate matters previously determined against him or her, repeatedly pursued unmeritorious or frivolous tactics in litigation, or who has previously been declared a vexatious litigant in a related action.” (Shalant, supra, at pp. 1169-1170.) Subdivision (b)(3) of section 391 is the provision here that the trial court cited in finding Hage to be a vexatious litigant. It provides that a vexatious litigant is a person “[i]n any litigation [who,] 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.” (§ 391, subd. (b)(3).)

There are two “sets of remedies” provided in the vexatious litigant statutes. (Rifkin, supra, 234 Cal.App.4th at p. 1345.) First, sections 391.1 through 391.6, enacted in 1963, provide “a means of moderating a vexatious litigant’s tendency to engage in meritless litigation. [Citations.] Under these sections, a defendant may stay pending litigation by moving to require a vexatious litigant to furnish security if the court determines ‘there is not a reasonable probability’ the plaintiff will prevail. Failure to produce the ordered security results in dismissal of the litigation in favor of the defendant. [Citations.]” (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 221 (Bravo).) The second aspect of the statutes, enacted in 1990, is the prefiling order requirement of section 391.7, which is the remedy relevant in this case. (Shalant, supra, 51 Cal.4th at p. 1170.) Section 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.’ ” (Shalant, supra, at p. 1170.) In general under the vexatious litigant statutes, “ ‘ “[l]itigation” ’ means ‘any civil action or proceeding, commenced, maintained or pending in any state or federal court.’ (§ 391, subd. (a).) The statute governing prefiling orders, however, provides an additional definition of the term: “for purposes of section 391.7, ‘ “litigation” includes any petition, application, or motion other than a discovery motion, in a proceeding under the Family Code or Probate Code, for any order.’ (§ 391.7, subd. (d).)” (Rifkin, supra, at pp. 1345-1346.)

“The trial court exercises its discretion in determining whether a person is a vexatious litigant. Review of the order is accordingly limited and the Court of Appeal will uphold the ruling if it is supported by substantial evidence.” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 636; see also Bravo, supra, 99 Cal.App.4th at p. 219.)

B. Standard of Review

Hage’s two challenges concern (1) the court’s admission of evidence presented by Mhanna at the hearing in support of the request, and (2) the court’s denial of Hage’s request to continue the hearing by extending the proceedings to a second day.

A trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion. (People v. Harris (2005) 37 Cal.4th 310, 337; Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.) Similarly, an appellate court reviews a ruling granting or denying a request for judicial notice under an abuse of discretion standard. (Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 901 (Washington); see also In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1271.) An abuse of discretion occurs where it is shown that “ ‘the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].’ [Citation.]” (People v. Carrington (2009) 47 Cal.4th 145, 195.)

A trial court’s decision to grant or deny a continuance will not be disturbed on appeal except upon a clear showing of an abuse of discretion. (Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249.) Likewise, “[w]e review the trial court’s imposition of time limits [in judicial proceedings] for abuse of discretion. [Citation.]” (People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 148 (ConAgra).) It is the appellant’s burden of showing from the record the existence of such an abuse of discretion. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985.)

C. The Court Did Not Err

1. Hage’s Argument

Hage argues on appeal that the court erred. As this court understands Hage’s argument, it is that there were two interrelated errors that were prejudicial to his case.

First, Hage contends the trial court erred when it accepted two binders of documents submitted by Mhanna at the hearing, notwithstanding the fact that her counsel, Yomtov, failed to provide copies to Hage prior to the hearing. He contends that Mhanna was required by a prior court order to submit to Hage a specified number of days prior to the hearing all exhibits she intended to rely upon in support of her request. The prior court order was filed on July 12, 2016, after the court, on June 6, 2016, had vacated a hearing on Mhanna’s prior motion to have Hage declared a vexatious litigant. In the July 12, 2016 order—issued by a different superior court judge who had presided over numerous earlier hearings in the dissolution proceeding—the court required that, in the event Mhanna refiled her motion, she was to (1) indicate that it was a long-cause matter, and (2) “[s]ubmit all exhibits to the court and to [Hage] no later than ten days prior to the hearing.”

Second, Hage contends that the trial court erred in refusing to continue the hearing after Hage requested additional time to complete his case in opposition to the request. He argued that the court “failed to keep its agreement with [Hage] of having the [v]exatious litigant long[-cause] trial to be more than one day to cover 4 years.” Instead, the court concluded the hearing after one day of proceedings.

2. Background Concerning Claims of Error

The hearing on the request commenced on the morning of June 22, 2017, and concluded after 5:00 p.m. that day. The length of the reporter’s transcript demonstrates the court devoted a full day to hearing the case. After a discussion concerning pending proceedings in the case other than the request to declare Hage a vexatious litigant, Mhanna’s counsel Yomtov gave an opening statement. At the conclusion of Hage’s opening statement, Hage advised the court that he believed the hearing should take multiple days to complete. Hage stated: “Your Honor, it’s a long cause, it’s going to be three days. But Your Honor, you said we’ll do one day and then we’ll continue, and I accept all this.”

Yomtov provided the court and Hage with two binders containing copies of court records with 34 separate tabs. As represented by Yomtov, the majority of the documents were ones that had been authored by Hage. Yomtov requested that the court take judicial notice of these filings. None of the tabbed documents was marked or introduced as an exhibit on behalf of Mhanna.

Yomtov spent a large segment of the morning’s proceedings reviewing the documents of which he was requesting judicial notice, and, by offer of proof, explaining to the court why he believed the documents supported a vexatious litigant finding. The documents in the two binders were largely the supporting documents for Hage’s 24 separate motions identified in the request and as detailed in the attachment to the request, discussed ante. The presentation at the hearing included documents pertaining to some proceedings not identified in the request, including motions by Hage filed May 4, 2015, March 13, 2017, March 21, 2017, and March 25, 2017, a small claims complaint by Hage, a civil complaint by Hage, and a second civil complaint by Hage. It was noted by Yomtov and confirmed by the court that there were specific findings by the court in written orders that two of Hage’s motions were frivolous. One motion concerned a motion filed March 23, 2016, and the second involved a motion by Hage filed April 29, 2016.

The court ruled that it was taking judicial notice of the court’s file; it requested that Yomtov “more particularly explain what parts of the file that the Court [was] taking judicial notice of.” The court also took judicial notice of (1) a small claims complaint filed by Hage against Yomtov and a judgment entered in that action, (2) a limited jurisdiction civil suit filed by Hage against Mhanna and Yomtov, and (3) an unlimited civil suit filed by Hage against Mhanna and Yomtov.

Hage repeatedly objected to the documents referenced in the binders submitted by Mhanna. His objections, however, were not based upon whether judicial notice should be taken of the documents. Rather, Hage’s objections were in the nature of responding substantively to whether the documents—generally, court filings by Hage and orders on motions made by Hage—supported the request that Hage be declared a vexatious litigant. The court advised Hage repeatedly that such arguments concerning the substance of the documents were not proper objections, and that he should reserve such comments for the time when he presented his case.

Hage presented his case for the balance of the morning session and nearly the entire afternoon session. As the court broke for lunch, Hage advised: “I want to also ask the Court to keep in mind that this will need to be continued because there are items to—.” The court responded: “This case is not going to be continued. We’re hearing this case today. You have until 4:45 today.” The court later reiterated to Hage while he was presenting his case that the hearing would be concluded at 4:45 p.m. that day.

During the afternoon session, while Hage was presenting his case, identifying a number of exhibits in doing so, he objected to the fact that Yomtov did not provide the two binders of documents for which he sought judicial notice five days before the hearing, but instead only provided them when the hearing commenced. The court overruled this objection, stating: “Mr. Hage, the time for you to tell the Court that you had an objection to any of Mr. Yomtov’s exhibits was at 9:00 o’clock this morning when the Court sat down with these binders and we started this case. You didn’t say a word about that. [¶] . . . [¶] I’m just saying if you had an objection to Mr. Yomtov’s exhibits—and by the way, all of his exhibits are just the Court file.” The court later reiterated that it was overruling Hage’s procedural objection because he had failed to make it during the presentation of the two binders of court documents by Yomtov.

After hearing argument from both parties, the court submitted the matter. On August 1, 2017, the court filed an amended order declaring Hage a vexatious litigant under section 391, subdivision (b).

3. Discussion of Claims of Error

We initially address Hage’s contention that the court erred by accepting two binders of documents submitted by Mhanna at the hearing, which had not been provided to Hage at least 10 days prior to the hearing in alleged contravention of the court’s prior order of July 12, 2016. This claim fails for three reasons.

First, Hage’s objections were untimely. As was noted by the trial court, Yomtov presented the two binders of court-filed documents in Mhanna’s case in chief without procedural objection raised by Hage. This presentation by Yomtov consumed most of the morning of the hearing and, although (as discussed, ante), Hage asserted “objections” to many of the documents, his comments were uniformly a response attempting to rebut the claim that the documents showed him to be a vexatious litigant. “An objection to evidence must generally be preserved by specific objection at the time the evidence is introduced.” (People v. Demetrulias (2006) 39 Cal.4th 1, 22.) Hage failed to preserve his procedural objection to the documents submitted on behalf of Mhanna at the hearing.

Second, Hage’s argument is based upon the false premise that the two binders of tabbed documents presented by Yomtov at the hearing were, in fact, exhibits, and were thus subject to the court’s July 12, 2016 order that they be exchanged in advance of the hearing. None of the tabbed documents was marked or introduced as an exhibit on behalf of Mhanna. Instead, Yomtov requested that the court take judicial notice of these court filings. The court—without objection from Hage that it was procedurally improper to judicially notice the documents—granted the request for judicial notice. Hage’s failure to timely assert a procedural objection to the documents notwithstanding, the court’s order judicially noticing the documents was not in contravention of its prior July 12, 2016 order concerning the advance exchange of exhibits.

Third, even were we to construe Hage’s challenge here as being the assertion that the court erred in granting judicial notice of the documents submitted by Mhanna, such a claim lacks merit. The court may take judicial notice of the “[r]ecords of (1) any court of this state . . . .” (Evid. Code, § 452, subd. (d).) Thus, unquestionably, a “court may judicially notice its own records and proceedings in the same case. [Citations.]” (City etc. of San Francisco v. Carraro (1963) 220 Cal.App.2d 509, 527 (Carraro).) The documents of which Mhanna requested judicial notice were almost entirely motions and orders filed in this proceeding that were judicially noticeable under Carraro. The remaining documents—the small claims documents and the complaints in the two civil suits filed by Hage in the Santa Clara County Superior Court—were likewise the proper subjects of judicial notice under Evidence Code section 452, subdivision (d)(1). Indeed, any argument by Hage to the contrary would be inconsistent with his conduct at the hearing. Hage himself requested that the court take judicial notice of certain court-filed documents, including documents filed in this proceeding and one of his civil complaints. Further, his contention that he was prejudiced by the court’s taking judicial notice of the documents is without merit. As noted, the documents were not exhibits identified and introduced by Yomtov. Moreover, the vast majority of the documents in the two binders submitted by Mhanna related to motions filed by Hage and rulings of the court thereon that were identified specifically in the request—and, in particular, in the two-page summary of motions that was part of the request. The request was filed more than five months before the hearing. The court below did not abuse its discretion by granting the request for judicial notice. (See Washington, supra, 38 Cal.App.4th at p. 901.)

Hage’s second claim of error is that the court, despite Hage’s request and a purported agreement of the court to conduct a multiple-day hearing, denied his request to continue the hearing to a second day. He asserts that the “[c]ourt failed to keep its agreement with [him] of having the [v]exatious litigant long [cause] trial to be more than one day to cover 4 years.” He reiterates his assertion that the court did not “keep its agreement . . . of continuing the trial for more than one day.” Hage provides no citation to the record in support of any “agreement” by the court to hold a multiple-day hearing on the request. “When an appellant’s brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]” (In re S.C. (2006) 138 Cal.App.4th 396, 406-407.)

As best we can ascertain, we believe Hage’s assertion that he was entitled to more than one day for the hearing on the request is founded upon his incorrect understanding of the meaning of “long cause” and upon the language in the court’s July 12, 2016 order that, in the event Mhanna chose to refile the request for a determination that Hage was a vexatious litigant, she was required to indicate that it was a long-cause matter. As defined by Superior Court of Santa Clara County, Family Local Rules, rule 5H—of which we take judicial notice (Evid. Code, §§ 451, 459; see Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 870, fn. 5)—“[a] ‘long cause’ hearing is any hearing other than a trial that will take longer than 30 minutes.” To the extent that the court’s July 12, 2016 order constituted an “agreement” that Mhanna’s request be heard as a long cause matter, the hearing, which consumed an entire day, was consistent with the order that the hearing take more than 30 minutes to conclude.

Moreover, Hage’s challenge to the court’s denial of his request that the hearing extend into a second day ignores the broad discretion with which the trial court is vested in providing for the efficient and orderly administration of justice. “A trial court has the inherent authority and responsibility to fairly and efficiently administer the judicial proceedings before it. [Citations.] This authority includes the power to supervise proceedings for the orderly conduct of the court’s business and to guard against inept procedures and unnecessary indulgences that tend to delay the conduct of its proceedings.” (California Crane School, Inc. v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 12, 22, fn. omitted (California Crane); see also Code Civ. Proc., § 128, subd. (a)(3) [every court has the power “[t]o provide for the orderly conduct of proceedings before it”].) “In particular, courts have the authority to request time estimates and enforce time limits, as long as the limits are reasonable and the court remains ‘mindful that each party is entitled to a full and fair opportunity to present its case.’ [Citations.]” (In re Harley C. (2019) 37 Cal.App.5th 494, 513, conc. opn., Segal, J., quoting California Crane, supra, at p. 21.) Here, the trial court—allowing Hage to present his defense to the request for a portion of the morning session and the entire afternoon session of the hearing—afforded Hage a full and fair opportunity to present his case. The court did not abuse its discretion by denying Hage’s request that the hearing be extended into a second day. (See ConAgra, supra, 17 Cal.App.5th at p. 148.)

III. DISPOSITION

The August 1, 2017 order declaring appellant Ghassan Hage to be a vexatious litigant is affirmed.

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

PREMO, ACTING P.J.

MIHARA, J.

Mhanna v. Hage

H045077