Filed 5/19/20 Brown v. Butler CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JAMIESON BROWN,

Plaintiff and Appellant,

v.

ROBERT BUTLER et al.,

Defendants and Respondents.

D075348

(Super. Ct. No. 37-2017-00026857- CU-PO-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Affirmed; sanctions imposed on attorney Francisco Javier Aldana.

Law Offices of Francisco Javier Aldana and Francisco Javier Aldana for Plaintiff and Appellant.

DorenfeldLaw and David Dorenfeld for Defendants and Respondents Michelle Denise Cinque, Toucans Tiki Lounge, Inc., Ira Shadrow and Carole Shadrow.

Robb Wirt and Robb M. Wirt-Bumham in pro. per. for Defendants and Respondents Robb Wirt and Robb M. Wirt-Bumham.

David D L. Horton, Esq. & Associates, David D L Horton and Christopher W. Kelly for Defendant and Respondent Jon Manual Lizarraga.

I
II
INTRODUCTION

Plaintiff Jamieson Brown filed a complaint alleging defendants Church of Jesus Christ of Latter-day Saints and Corporation of the President of the Church of Jesus Christ of Latter-day Saints (together, the Mormon Church) orchestrated a conspiracy to spy on, kidnap, and harm him with the assistance of dozens of codefendants and conspirators, including male prostitutes, pimps, devil worshippers, gang members, Brown’s former landlords, participants in a lynch mob, the employees and owners of a cocktail bar and a bathhouse, members of law enforcement, and members of the state judiciary. The trial court dismissed the action under its inherent power to control litigation, prevent harassment of defendants, and avert misuse of the judicial process.

Brown appeals, arguing the trial court abused its discretion and deprived him of his constitutional rights to procedural due process and a jury trial. We conclude the trial court properly dismissed the case. Therefore, we affirm the judgment.

Further, we conclude appellate sanctions against Brown’s counsel of record, Mr. Francisco Javier Aldana, are warranted. The present appeal is indisputably without merit and any reasonable attorney would agree with this conclusion. Additionally, Mr. Aldana has committed unreasonable violations of the California Rules of Court by filing briefing on behalf of his client that extensively discusses and relies on matters outside the appellate record. For both reasons, we impose sanctions against Mr. Aldana in the amount of $15,000, payable to the clerk of the court, to compensate the state for the cost to the taxpayers of processing this frivolous appeal. (Cal. Rules of Court, rule 8.276(a)(1), (4).) Mr. Aldana and the clerk of this court are each ordered to forward a copy of this opinion to the State Bar upon return of the remittitur. (Bus. & Prof. Code, §§ 6086.7, subd. (a)(3), 6068, subd. (o)(3).)

III
IV
BACKGROUND

A
B
In 2017, Brown, proceeding in propria persona, filed a 93-page complaint against 27 defendants and hundreds of doe defendants. The complaint alleged the Mormon Church perpetrated a multifaceted scheme of surveillance, oppression, and violence against him based on his vocal opposition to Mormonism. It asserted numerous torts and causes of action based on alleged statutory violations. After Brown filed the complaint, attorney Francisco Javier Aldana substituted in as Brown’s counsel of record.

Brown averred the Mormon Church’s scheme took many forms. First, he alleged the Mormon Church hired a male prostitute and “devil worshipper” to befriend him, become his roommate, and spy on him. He alleged the Mormon Church instructed its spy to “keep[] [Brown] awake as much as possible” to hinder his participation in a landlord-tenant dispute involving Brown and his former landlords, who were members of the Mormon Church. Brown alleged the Mormon Church manipulated judicial assignments for the landlord-tenant dispute to ensure Mormon judges were assigned to the case.

Second, Brown alleged the Mormon Church hired a different male prostitute and pornography star to enter a romantic relationship with him and “wreak havoc in [his] life.” According to Brown, the man hired to be his romantic partner had sexual encounters with other men “to emotionally devastate him.” He averred his romantic partner and his roommate—both of whom he described as Satanists and Sureños gang members—spied on him from a cocktail bar near his residence with the aid and assistance of the bar’s employees. He further alleged he was “attacked” while leaving the bar by unidentified assailants who desired to “tak[e] blood from [his] face to decrease his spiritual power.”

Finally, Brown alleged several instances in which the Mormon Church, unnamed defendants, and conspirators intimidated him. In one case, defendants allegedly kidnapped his companions at a bathhouse and organized a lynch mob to chase him down the streets of San Diego. On another occasion, defendants and conspirators allegedly surveilled him while he rode a bus and tried to “lay curses” on him. In another instance, defendants “with close connections to” United States Senator Mitt Romney allegedly stalked, screamed, and chanted at him. Brown alleged he reported certain of these incidents to police, but the responding officers did not help him because they were Mormons.

Some of the defendants (Robert Butler, Lizarraga, David Savage, Richard Savage, and Wirt) demurred and/or filed motions to strike the complaint. Other defendants (Champion, Crouthamel, Lowry, Mormon Church, Paige, and XRS Corporation) answered the complaint. The record does not indicate whether the remaining defendants filed demurrers, motions to strike, answers, or any other motion or responsive pleading.

The trial court issued a tentative ruling sustaining the demurrers on grounds that Brown failed to allege facts sufficient to state causes of action against the demurring defendants and because the claims were “uncertain, ambiguous and unintelligible.” The tentative ruling also characterized the complaint as “patently frivolous” and indicated the court would exercise its inherent authority to dismiss the case.

The following day, the trial court conducted a hearing regarding the demurrers, the motions to strike, and the other matters encompassed in the court’s tentative ruling. There is no reporter’s transcript of the hearing. However, the court adopted a modified settled statement indicating it “heard oral argument” and “inquired as to how plaintiff could amend the pleadings to state a cause of action.” According to the modified settled statement, “Plaintiff argued without specifics that he was able to amend the complaint conceding that some unspecified defendants would be dismissed.”

Four days after the hearing, the trial court issued a minute order dismissing the case. The dismissal order stated as follows: “[P]laintiff appeared [at the hearing] through counsel who accepted a ruling regarding the merits of sustaining a demurrer and requested leave to amend, conceding that some defendants would be dismissed. After reviewing plaintiff’s pleading, the [c]ourt determines that under the [c]ourt’s inherent power to control the proceedings, the case as pled cannot be salvaged into an amendment. Any amendment would completely re-write the allegations [¶]…[¶] The [c]ourt DISMISSES this case in its entirety. All defendants are dismissed.” Brown filed a motion to vacate or set aside the judgment, which the trial court denied.

V
VI
DISCUSSION

A
B
“From their creation by article VI, section 1 of the California Constitution, California courts received broad inherent power ‘not confined by or dependent on statute.’ [Citations.] This inherent power includes ‘fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation.’ ” (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758 (Slesinger).) This power “is to be exercised to ‘ “achieve justice and prevent misuse of [the court’s] proces[s] ….” [Citation.]’ ” (Huang v. Hanks (2018) 23 Cal.App.5th 179, 182 (Huang); see In re E.M. (2014) 228 Cal.App.4th 828, 843 [“All courts have inherent powers that enable them to carry out their duties and ensure the orderly administration of justice.”].)

Included within a trial court’s inherent power is the authority “to dismiss cases that are fraudulent or ‘vexatious,’ ” which serves to prevent the harassment of defendants and ensures the court hears only actual disputes. (Huang, supra, 23 Cal.App.5th at p. 182; see Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915 (Lyons) [“In the absence of express statutory authority, a trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with prejudice.”].) Likewise, trial courts have inherent authority to fashion remedies, including but not limited to dismissal of the case, ” ‘as necessary to protect [defendants’] rights’ [citation] to be free from the monetary expense and other costs of responding to … frivolous claims that cannot avoid being categorized as ‘fantastic,’ ‘delusional,’ or ‘fanciful.’ ” (Huang, at p. 182; see In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 516 [similar to trial courts, appellate courts “have the inherent power to dismiss frivolous appeals”].)

A trial court’s exercise of its inherent authority to dismiss an action is presumed correct and may not be reversed unless the appellant meets his burden of establishing an abuse of discretion. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) To satisfy this standard, the appellant must establish ” ‘manifest abuse exceeding the bounds of reason.’ ” (Slesinger, supra, 155 Cal.App.4th at p. 765.)

C
D
Brown argues the trial court erred in dismissing the complaint in five respects. First, he claims the court abused its discretion because the allegations in the complaint were not frivolous. Second, he contends the court should have adopted a less drastic measure than dismissal, such as sustaining the moving defendants’ demurrers with leave to amend. Third, he argues the court did not give him adequate notice it would dismiss the complaint, in violation of his constitutional right to due process. Fourth, he asserts the dismissal of the complaint violated his constitutional right to a jury trial. Finally, he contends certain defense counsel engaged in acts of misconduct that “pervaded the proceedings below” and “resulted in a miscarriage of justice ….”

With respect to the first argument, we have no trouble concluding the complaint was frivolous and therefore subject to dismissal. Brown alleged he was the victim of a vast conspiracy orchestrated by the Mormon Church and implemented by dozens of perpetrators, including male prostitutes, pimps, devil worshippers, gang members, landlords, lynch mobs, members of law enforcement, and members of the state judiciary, who purportedly acted in concert to spy on, put curses on, intimidate, sabotage, and attack him. This is precisely the type of fantastical and fanciful pleading that threatens to harass defendants, divert scarce judicial resources, and abuse the legal process. The trial court did not err in its determination that the complaint was frivolous. (See Huang, supra, 23 Cal.App.5th at p. 183 [allegations that prominent public figures attacked plaintiff with nano probes were “subject to dismissal as frivolous”].)

In fact, Brown’s allegations are so absurd and delusional that we have significant concerns that his counsel of record—Francisco Javier Aldana—would defend such frivolous allegations against the defendants’ demurrers and motions to strike, much less appeal the trial court’s order dismissing the case. For that reason, among others, we issued an order to show cause as to whether we should impose monetary sanctions against Mr. Aldana. (Code Civ. Proc., § 907; Rule 8.276.) Our discussion of the propriety of sanctions is discussed post in Section III.C.

As for Brown’s second argument on appeal, we conclude the trial court did not abuse its discretion in dismissing the case in lieu of a less severe remedy. “[D]ismissal is a ‘drastic’ measure which should be ‘used only in extreme situations’ where ‘lesser sanctions would not serve the interests of justice.’ ” (Lyons, supra, 42 Cal.3d at p. 917.) The lesser sanction proposed by Brown—an order sustaining the demurrers—would not have served the best interests of justice. Only certain defendants demurred to the complaint. Therefore, an order sustaining the demurrers would have left in place more than a dozen frivolous claims against the nonmoving defendants. Further, as reflected in the modified settled statement, Brown could not articulate how he would have amended the complaint to state a claim. Given these circumstances, we conclude the court did not adopt too drastic a remedy when it dismissed the complaint.

Brown also contends the dismissal order violated his right to due process under article I, section 7 of the California Constitution because he had no notice of the impending dismissal. The record proves otherwise. Defendant Lizarraga expressly based his motion to strike on the court’s inherent authority to dismiss frivolous litigation. Further, the trial court issued a tentative ruling prior to the hearing on the pending motions, in which it described Brown’s allegations as frivolous and subject to dismissal under the court’s inherent power. Therefore, assuming without deciding Brown had a due process right to notice prior to dismissal, he received such notice here.

Next, Brown asserts the dismissal order deprived him of his right to a jury trial under article I, section 16 of the California Constitution. Again, we disagree. “[T]he exercise of the inherent power to dismiss … relies … on the power the court derives from its nature as an institution of justice, and on the acknowledgement that the right to a jury trial presupposes a fair trial, and that requiring a jury trial when fairness cannot be assured would be unjust. [¶] Further, the exercise of the inherent power to dismiss, like all inherent authority, derives in part from the court’s historic powers in equity. [Citations.] Equitable defenses are tried to the judge alone; the judge’s findings may well obviate a jury trial on remaining legal issues, without abridging the right to a jury trial.” (Slesinger, supra, 155 Cal.App.4th at pp. 762–763.) Because the trial court in the present case acted as an institution of justice and exercised its authority in equity, we conclude its dismissal of the complaint did not impinge Brown’s jury trial rights. (Ibid.)

Finally, Brown recites a litany of instances in which defense counsel purportedly engaged in misconduct. For instance, he claims counsel for two defendants (the Savages) committed an act of misconduct by mistakenly telling the trial court that another defendant (Applesmith) was dismissed from the case—even though counsel later corrected its mistake on the record. Brown alleges counsel for the Mormon Church also misled the court when it referred to its client as the Mormon Church. According to Brown, this reference constituted misconduct because “the church’s corporations are not the congregation, but are merely associated with the church ….” Further, Brown asserts counsel for the Mormon Church misinformed the trial court that Brown “regularly” attended Mormon Church services to try to convert Mormons to Brown’s own religion, when in fact he only “occasionally” did so.

These incidents, and other similar examples cited by Brown, do not constitute attorney misconduct. In each instance, defense counsel simply used terminology with which Brown disagreed or made apparently honest mistakes it later corrected on the record. Even if defense counsel had engaged in misconduct, Brown has not articulated how the alleged misconduct influenced the trial court’s exercise of its inherent power to dismiss the litigation. Therefore, Brown has failed to establish prejudice.

Because we conclude the trial court did not abuse its discretion in exercising its inherent authority to dismiss the complaint, we do not consider whether Brown alleged facts sufficient to state a claim against the demurring defendants.

E
F
As we have mentioned, we issued an order to show cause, on our own motion, as to whether sanctions should be imposed against Brown’s counsel of record, Mr. Aldana. Our order identified two possible bases for imposing sanctions against Mr. Aldana: (1) the taking of a frivolous appeal (Rule 8.276(a)(1); In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 (Flaherty)); and (2) the commission of unreasonable violations of the Rules (Rule 8.276(a)(4)). We invited Brown and Mr. Aldana to file a response to the order to show cause, which they did. (Rule 8.276(d).) Further, we permitted Mr. Aldana to address the issue of sanctions during oral argument. (Rule 8.276(e).)

Code of Civil Procedure section 907 provides that the court may “add to the costs on appeal such damages as may be just” when it appears the appeal was frivolous or taken solely for delay. Rule 8.276(a)(1) likewise grants the court authority, on the motion of any party or its own motion, to impose sanctions on a party or an attorney for “[t]aking a frivolous appeal or appealing solely to cause delay ….” “[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.” (Flaherty, supra, 31 Cal.3d at p. 650.)

“In determining whether an appeal indisputably has no merit, California cases have applied both subjective and objective standards. The subjective standard looks to the motives of the appealing party and his or her attorney, while the objective standard looks at the merits of the appeal from a reasonable person’s perspective. [Citation.] Whether the party or attorney acted in an honest belief there were grounds for appeal makes no difference if any reasonable person would agree the grounds for appeal were totally and completely devoid of merit.” (Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 556 (Kleveland).) The subjective and objective “standards are often used together, with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay.” (Flaherty, supra, 31 Cal.3d at pp. 649–650.)

Applying these standards here, we are convinced this appeal is totally and indisputably without merit and, therefore, sanctions are warranted. Brown’s primary argument on appeal was that the trial court erred when it determined the complaint was frivolous. He concedes the complaint contains “seemingly unusual” allegations, but asserts they are not outside “the realm of possibility” and do not describe “some impossible sci-fi scenario.” We cannot agree.

The notion that the Mormon Church, with the aid of dozens of codefendants, including prostitutes, police officers, and judicial officers, perpetrated a wide-ranging scheme of violence, intimidation, manipulation of the judicial system, ritualistic curses, sleep deprivation, romantic sabotage, and the theft of Brown’s spiritual power—all based on Brown’s opposition to Mormonism—falls, in our view, decidedly outside the realm of possibility. These allegations, and Brown’s defense of them on appeal, are so frivolous to the point of absurdity. “[N]o reasonable attorney could have thought this complaint or this appeal meritorious.” (Simonian v. Patterson (1994) 27 Cal.App.4th 773, 785.)

Brown’s other appellate arguments are equally frivolous. As noted, the appellate record unequivocally disproves Brown’s claim that he lacked notice of the possibility that the trial court would exercise its inherent authority to dismiss his frivolous complaint. No reasonable attorney would have argued to the contrary on appeal.

Likewise, no reasonable attorney would have argued on appeal that opposing counsel engaged in prejudicial acts of misconduct by referring to its client using a shorthand abbreviation that the attorney simply did not prefer. Nor would a reasonable attorney have suggested that opposing counsel misled the trial court by stating that the attorney’s client engaged in “regular,” as opposed to “occasional,” proselytizing activities. An attorney’s quibble with his opposing counsel’s diction is not grounds for a finding of misconduct and it certainly is not grounds for us to reverse the judgment in this case. There is no arguable basis in fact or law supporting Brown’s position to the contrary.

Sanctions are also warranted for an independent reason unrelated to the frivolity of the appeal. Under Rule 8.276(a)(1), the court has authority to sanction a party or an attorney for committing an unreasonable violation of the Rules. Here, Brown—or more precisely, his counsel of record, Mr. Aldana—committed unreasonable violations of the Rules in the preparation and submission of Brown’s appellate briefing.

Several dozen pages of the briefing Mr. Aldana filed on behalf of his client are devoted to matters outside the appellate record. To take a few illustrative examples, the briefs discuss numerous passages from religious texts to support Brown’s claims that Satanists commit “evil and wicked acts” and the Mormon Church has levied “war against this country.” The briefs analyze sixteen different entries from the website Wikipedia on topics including Brigham Young University, the Book of Mormon, the History of San Bernardino, the mythology of bees, symbols of the State of Utah, and the Mexican-American War. They describe an individual user’s YouTube channel and the user’s alleged efforts to document “bizarre temple rituals taking place in the Mormon temples.” Further, they examine the contents of myriad magazine and newspaper articles, films, opinion pieces, and websites—far too many for us to recite here.

These references to matters outside the appellate record violate at least two Rules: (1) Rule 8.204(a)(1)(C), which provides that each brief must “[s]upport any reference to a matter in the record,” and (2) Rule 8.204(a)(2)(C), which provides that the opening brief must “[p]rovide a summary of the significant facts limited to matters in the record.” (Italics added.) The violations were substantial as well, given that they permeated Brown’s appellate briefs and Mr. Aldana has offered no reasonable justification—or any justification—as to why he relied so heavily on matters outside the record.

” ‘Courts, with increasing frequency, have imposed … sanctions, payable to the clerk of the court, to compensate the state for the cost to the taxpayers of processing a frivolous appeal.’ ” (Workman v. Colichman (2019) 33 Cal.App.5th 1039, 1064 (Workman).) The rationale is that respondents “are not the only parties damaged when an appellant pursues a frivolous claim. Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are prejudiced by the useless diversion of this court’s attention. [Citations.] In the same vein, the appellate system and the taxpayers of this state are damaged by what amounts to a waste of this court’s time and resources.” (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 17.) The rationale for imposing sanctions payable to the court clerk is equally applicable where there have been unreasonable violations of the Rules. (Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1161.)

In accordance with these authorities, we conclude sanctions are warranted in an amount necessary to compensate taxpayers for the cost of processing, reviewing, and deciding this frivolous appeal. Such sanctions typically range from $6,000 to $12,500 (see Kleveland, supra, 215 Cal.App.4th at p. 560), but have been imposed in amounts at least as high as $25,000. (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 195 (Bucur) [imposing sanctions of $25,000 “to compensate the expense of processing, reviewing and deciding [the] appeal”]; Bank of Cal. v. Varakin (1990) 216 Cal.App.3d 1630, 1640 [imposing sanctions of $25,000 “to reimburse the taxpayers victimized by this unremittingly frivolous litigation and to deter such conduct in the future”].) Given the outlandish arguments raised in this appeal and the extensive violations of the Rules in Brown’s appellate briefing, we believe a sanctions order of $15,000 is appropriate.

” ‘Sanctions may be ordered against a litigant [citation] and/or against the lawyer ….’ [Citation.] Sanctions are warranted against a lawyer ‘who, because the appeal was so totally lacking in merit, had a professional obligation not to pursue it.’ ” (Workman, supra, 33 Cal.App.5th at p. 1065.) Mr. Aldana neglected his professional obligation by pursuing this frivolous appeal on behalf of his client and committing unreasonable violations of the Rules in the process. Accordingly, we conclude the sanctions should be imposed against Mr. Aldana, as counsel of record for Brown.

In response to our order to show cause, Mr. Aldana filed a declaration in which he asserted he “should not be penalized because [he] did not write the complaint.” We are dubious about Mr. Aldana’s claims of blamelessness. Irrespective of whether Mr. Aldana drafted the complaint, he represented Brown in opposing the moving defendants’ demurrers and their motions to strike the frivolous complaint.

In any event, we are not imposing sanctions against Mr. Aldana for the content of the complaint or Mr. Aldana’s conduct before the trial court. Rather, we are imposing sanctions against Mr. Aldana for pursuing a frivolous appeal—an appeal Mr. Aldana had a professional obligation to forego—and for committing unreasonable and extensive violations of the Rules in the appellate briefing he filed on behalf of his client.

This opinion shall constitute a written statement of our reasons for imposing these sanctions. (Bucur, supra, 244 Cal.App.4th at p. 195.) In compliance with the requirements of the Business and Professions Code section 6086.7, a copy of this opinion shall be forwarded to the State Bar.

VII
VIII
DISPOSITION

The judgment is affirmed. Respondents are entitled to costs on appeal. In addition, sanctions are imposed upon Brown’s counsel of record, Francisco Javier Aldana, in the amount of $15,000, to be paid to the clerk of this court. Brown’s counsel of record and the clerk of this court are each ordered to forward a copy of this opinion to the State Bar upon return of the remittitur. (Bus. & Prof. Code, §§ 6086.7, subd. (a)(3),

 

6068, subd. (o)(3).) All sanctions shall be paid no later than 30 days after the date the remittitur is filed.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

AARON, J.