Estate of Daley CA1/1 filed

Annotate this Case

Download PDF

Filed 3/4/11 Estate of Daley CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE Estate of GERTRUDE C. DALEY, Deceased. CAROLYN DALEY et al., Petitioners and Appellants, A126490 v. (San Francisco City & County Super. Ct. No. 262684) GREGORY O KEEFFE, as Administrator, etc., Objector and Respondent. Ronald Daley and his sister, Carolyn Daley, two heirs of the estate of Gertrude Daley, appeal from an order confirming the sale of real property located at 3000 24th Avenue in San Francisco, California (24th Avenue property). In addition to filing a respondent s brief, the administrator of the estate, Gregory O Keeffe, has filed a motion seeking a declaration that Ronald and Carolyn are vexatious litigants and a prefiling order precluding them from filing new litigation . . . without first obtaining leave of the presiding judge . . . . (Code Civ. Proc., § 391.7, subd. (a).) We affirm the probate court s order confirming the sale. We also grant O Keeffe s motion to declare Ronald Daley a vexatious litigant, but deny it as to Carolyn Daley. 1 BACKGROUND This is Ronald Daley s ninth appeal in propria person in this probate proceeding which remains open more than 15 years after Gertrude Daley died intestate.1 We have recited the history of this contentious proceeding many times in our prior opinions. A considerable portion concerns Ronald and Carolyn s attempts to prevent the sale of a different piece of real property located on 25th Avenue (25th Avenue property), the rejection of their attempted overbid based upon their anticipated distributive share of the estate, and an ongoing dispute about who was responsible for the delay in completing that sale. (E.g., appeal Nos. A109762 [upholding sale of 25th Avenue property]; A118233 [holding substantial evidence supported probate court s finding Ronald and Carolyn s recording of invalid gift notices contributed to the delay in the sale of the property].) A similar pattern is emerging with respect to the sale of the 24th Avenue property. On March 1, 2006, the probate court granted O Keeffe s petition for instructions authorizing him to sell the 24th Avenue property. The court found the estate needs cash to pay administration expenses, . . . satisfy debts . . . and conclude estate administration. The order also specified any heir(s) at law wishing to bid using their potential interest as an heir at law [shall] include cash in the amount of $140,000.00 for their one-fourth . . . share in the estate as relating to said real property. Ronald Daley appealed this order, and three other orders, in two consolidated appeals (Nos. A113999, A116232). This court affirmed the authorization to sell order on January 7, 2008. O Keeffe began to prepare the 24th Avenue property for sale, and on July 17, 2009, served Ronald and Carolyn and the other two heirs, Phillip Daley and Pamela Daley Keyes, with a Notice of Intention to Sell the 24th Avenue Property at a private sale to the highest and best net bidder, subject to confirmation by the court. The notice 1 The eight prior nonpublished appeals are: O Keeffe v. Daley (Oct. 11, 2006, A109762); O Keeffe v. Daley (Jan. 7, 2008, A113999, A116232); O Keeffe v. Daley (Apr. 29, 2008, A118233); O Keeffe v. Daley (Sept. 16, 2008, A120213); O Keeffe v. Daley (Oct. 28, 2008, A120596); O Keeffe v. Daley (March 27, 2009, A121671); and Daley v. O Keeffe (Oct. 13, 2009, A123021.) The court takes judicial notice of the unpublished opinions in these appeals. (See Evid. Code, §§ 452, subd. (d), 459.) 2 directed all bidders to submit their bids in writing to O Keeffe by August 27, 2009. The notice also specified the property would be sold only on the basis of all cash and the [a]dministrator reserves the right to reject any and all unaccepted bids prior to entry of an Order confirming the sale. On August 28, 2009, O Keeffe filed a report of sale and petition for order confirming the sale. He declared the 24th Avenue property was appraised at $830,000. He had accepted a cash bid at the private sale on August 27, 2009, in the amount of $899,000 and a deposit of $90,0000. He further declared the sale was necessary to pay debts and administrative expenses and devises to the heirs. He also declared the sale is to the advantage of the estate and in the best interest of the interested persons. The notice stated the required amount for an overbid at the September 22, 2009, confirmation hearing would be $945,395. On September 15, 2009, Ronald, in propria persona, filed objections to the petition for an order confirming the sale. His objections included: (1) The sale should not proceed until the court heard his pending filed petition to remove O Keeffe as administrator; (2) The court should discredit O Keeffe s declaration that the sale was necessary to pay debts, costs and devises, and was to the advantage of the estate because O Keeffe had not acted in the best interest of the estate with respect to the sale of the 25th Avenue property, and had made incorrect representations of facts concerning the best interest of the estate in prior proceedings; (3) In 1997, O Keeffe had violated Probate Code section 10257, subdivision (b),2 by permitting Phillip to offset the entire amount of his $25,000 bid for personal property plus interest against his final share of the estate, instead of requiring Philip to make a 25 percent cash deposit; (4) The court should first determine the amount Philip owed the estate, including for interest and storage, for the period Philip left the personal property he purchased on site; and (5) In lieu of a sale, O Keeffe should make immediate preliminary distribution to the heirs of their respective shares in the 24th Avenue property. 2 All further statutory references are to the Probate Code unless otherwise indicated. 3 Carolyn Daley filed a declaration joining in Ronald s objections to confirmation of the sale. O Keeffe s responsive declaration explained there were substantial fees, costs and offsets against both Ronald s and Carolyn s shares for their improper blockage of the sale of the 25th Avenue property. He further declared transfer of undivided interests in lieu of a sale will only result in a partition action, since the other two heirs . . . desire to receive their share of the value of the estate, irrespective of the outstanding fees, expenses, and offsets. As for Ronald s assertion the sale should be delayed pending resolution of his petition to remove O Keeffe as administrator, O Keeffe declared: It is in the best interest of the estate to sell this property, the sole remaining estate asset. This property must be sold irrespective of who is serving as personal representative. . . . Fees must be satisfied, Stipulated Trial issues resolved, and offsets against heir(s) determined. O Keeffe summarized the contentious history of the relations among the heirs, and of Ronald and Carolyn s role in delaying closure of the sale of the 25th Avenue property. O Keeffe also cited statements in several opinions by this court recognizing the need to conclude the administration of the estate before all its assets are exhausted by litigation expenses.3 3 For example, in appeal No. A118233 at page 12 this court stated: [I]t appears that the primary focus of the present appeal is on assigning blame to others for conduct that has already occurred, as opposed to resolving an actual legal dispute. Rather than focusing on prior events and transactions that cannot be undone, the parties should direct their attention towards moving forward and concluding this estate proceeding as quickly as possible. (O Keeffe v. Daley (Apr. 29, 2008, A118233) [nonpub. opn.].) In the consolidated appeals (Nos. A113999 & A116232 at p. 10) we observed: Given how long this probate proceeding has dragged on, we agree with the trial court that closure is a valid goal. (O Keeffe v. Daley (Jan. 7, 2008, A113999, A116232) [nonpub. opn.].) In appeal No. A121671 at page 6 we stated: [W]e again urge the parties to settle this estate proceeding as soon as possible. (O Keeffe v. Daley (March 27, 2009, A121671) [nonpub. opn.].) In appeal No. A123021 at page 7 we stated, regardless of whom is responsible for the delay, it behooves the trial court and parties to work towards bringing this proceeding to a merciful end before this estate is entirely consumed by the cost of further litigation. (Daley v. O Keeffe (Oct. 13, 2009, A123021) [nonpub. opn.].) 4 On September 22, 2009, Ronald appeared at the hearing to confirm the sale. Carolyn did not appear. Ronald argued the accounting O Keeffe submitted was too old to support the conclusion the sale was necessary to pay debts, costs and devises. Ronald also repeated his complaints about the terms of the 1997 sale of personal property to Phillip and Phillip s delay in removing the property from the premises. O Keeffe responded the most recent accounting through December 31, 2008, showed the estate had only approximately $34,000 on hand and the sale was necessary to put the estate in a position to make final distribution to the other heirs after paying debts, administrative fees, and litigation fees and determining offsets against distribution After considering the arguments and the record, the court stated it would proceed with the sale. Ava Chew, on behalf of Yao Luan Wu and Li Zen Zhang, made an overbid in open court, in the amount of $970,000, with a deposit of $190,000. Ronald attempted to make an overbid on Carolyn s behalf in the amount of $975,000, but acknowledged he did not have a cashier s check for 10 percent as required by the Superior Court of San Francisco, Local Rules, rule 14.67(E). The court therefore informed him he could not bid. When Ronald protested Carolyn owns half of that property, the court reiterated: You cannot bid if you don t have a 10% cashiers check down payment. 4 On September 22 2009, the court filed an order confirming the sale to Yao Luan Wu and Li Zen Zhang. Ronald and Carolyn filed a joint notice of appeal in pro per. O Keeffe subsequently filed a motion asking this court to declare Ronald and Carolyn vexatious litigants pursuant to Code of Civil Procedure section 391, subdivision (b). We deferred ruling on the motion, pending disposition of the appeal on the merits. Carolyn obtained counsel and filed a substitution of attorney on November 23, 2009. 4 Ronald did not explain in the proceedings below how Carolyn owned half of the property, given that Gertrude Daley has four heirs. On April 29, 2010, this court denied Carolyn s request for judicial notice of a document signed by Ronald on September 19, 2009, and purporting to assign his interest to her. 5 The Order Confirming the Sale The Sale Was Both Necessary and Advantageous to the Estate The personal representative of an estate has the discretionary power to sell estate real property when a sale is either (a) necessary to pay debts, devises, family allowance, expenses of administration, or taxes, or (b) to the advantage of the estate and in the best interest of persons within the estate. (§ 10000, subds. (a), (b)). These are independent standards, and at a hearing on a petition to confirm a sale, the probate court must determine the sale meets at least one of them. (§ 10310, subd. (a).) Therefore, if a sale is to the estate s advantage and in the best interest of the heirs, the court need not also determine the sale is necessary to pay debts, devises, or expenses. (See Estate of Barthelmess (1988) 198 Cal.App.3d 728, 735-736 (Barthelmess).) An order confirming a sale must be affirmed on appeal if the probate court acted within its discretion in concluding the sale was either necessary or to the advantage of the estate, and if the evidence is sufficient to support any factual findings under the substantial evidence standard. (§ 10000, subds. (a), (b); Barthelmess, supra, 198 Cal.App.3d at pp. 738-741; In re Weaver Estate (1958) 158 Cal.App.2d 367 [determination of necessity for sale rests in court s discretion]; Estate of Da Roza (1947) 82 Cal.App.2d 550, 554-555 (Da Roza).) Under the abuse of discretion standard, a showing on appeal is wholly insufficient if it presents a state of facts, a consideration of which, for the purpose of judicial action, merely affords an opportunity for a difference of opinion. . . . To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice . . . . [Citation.] (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449.) Under the substantial evidence standard, we resolve all conflicts and inferences in favor of the judgment and do not redetermine credibility or reweigh the evidence. (Estate of Odian (2006) 145 Cal.App.4th 152, 168; see also Estate of Gerber (1977) 73 Cal.App.3d 96, 112-113.) 6 In its March 1, 2006, order authorizing O Keeffe to sell the 24th Avenue property, the probate court found the estate needs cash to pay administration expenses, . . . satisfy debts . . . and conclude estate administration. Ronald appealed that order, and this court affirmed it. Accordingly, that order is final and conclusive on the issue of necessity, at least as of March 1, 2006. (See § 1300, subd. (c).) In his subsequent petition seeking confirmation of the sale, O Keeffe declared circumstances had not changed since March 2006, and the sale was still necessary to pay debts, devises, and expenses. O Keeffe referred to the most recent accounting, covering the period of July 1, 2006 to December 31, 2008, which showed the estate had only approximately $34,000 in cash. (See § 10000, subd. (a).) A large portion of the estate s liquid assets had been exhausted paying attorney fees and costs for the first through fourth appeals, and $10,000 retainers for the fifth and sixth appeals. Ronald and Carolyn contend O Keeffe s showing was insufficient to establish the sale was necessary to pay debts, devises, and expenses, because the accounting O Keeffe submitted covered only the period through December 31, 2008. They assert the accounting was too old to provide an accurate picture of the current status of the estate, and suggest a more recent accounting might paint a different picture. This is an argument concerning the weight of the evidence, a matter committed to the probate court as the trier of fact. The court also acted well within the realm of reason in crediting the hard numbers presented by O Keeffe and not Ronald and Carolyn s rank speculation as to what another accounting might show. Ronald and Carolyn similarly contend O Keeffe s declaration that the estate owed additional fees and costs was insufficient because O Keeffe did not specify the exact amount of the outstanding fees and costs. The accounting showed a large portion of the estate s liquid assets had already been consumed by payments of fees and costs through March 31, 2008, for the first through fourth appeals, and of $10,000 retainers for the fifth and sixth appeals. It was eminently reasonable for the probate court to infer the fifth and sixth appeals would entail additional, commensurate fees and costs, necessitating the need for additional liquid assets. 7 In addition, the record more than supports confirmation of the sale on the alternative ground the sale was to the advantage of the estate and in the best interests of the heirs, as O Keeffe also declared. (§ 10000, subd. (b); Barthelmess, supra, 198 Cal.App.3d at p. 735 [court need not reach claim of insufficient evidence of necessity, where sale can be upheld as to the advantage of the estate].) The record is replete with evidence of the heirs contentious relationship, permitting a reasonable inference distribution of undivided interests in the property to each heir in lieu of a sale would perpetuate the conflicts, cause more delay, and increase the litigation costs that have been consuming the assets of the estate. (See Da Roza, supra, 82 Cal.App.2d at p. 554 [contentious relationship among heirs is factor supporting a determination it is to the advantage of the estate to sell property, rather than distribute undivided interests].) Moreover, a sale is to the advantage of the estate when the property cannot be conveniently allotted to any one party and it thereby avoids distribution of fractional undivided interests to several persons. (See Barthelmess, supra, 198 Cal.App.3d at pp. 735-737, distinguishing Estate of Canfield (1951) 107 Cal.App.2d 682.) Here, O Keeffe declared distributing undivided interests in the 24th Avenue property in lieu of a sale would lead to a partition action because Pamela and Phillip did not want to share a single family residence with Ronald and Carolyn and wanted the cash equivalent of their shares free of offsets that may be charged against Ronald or Carolyn. In addition, sale of the last remaining significant asset helped advance the estate toward final distribution and closure a goal that is clearly to the advantage of the estate and in the best interest of the heirs after so many years of litigation have consumed a substantial portion of the assets of Gertrude Daley s modest estate. Ronald and Carolyn have not met their burden as objectors of demonstrating the probate court abused its discretion in confirming the sale. (See Barthelmess, supra, 198 Cal.App.3d at p. 735; Da Roza ,supra, 82 Cal.App.2d at pp. 553-554.) There is substantial evidence the sale was both necessary and to the advantage of the estate. While Ronald and Carolyn assert the sale was not in their own best interests, an objection on the ground a sale is not in the best interest of a particular heir is not a valid reason to 8 deny confirmation. (See, e.g., Barthelmess, at pp. 735-736; Da Roza, at p. 554.) Similarly, their claim that O Keeffe s declaration should have been disregarded because he allegedly acted against their interests in connection with the sale of the 25th Avenue property, was an attack on O Keeffe s credibility and a challenge to the weight to be given to his declaration again, a matter for the probate court, which we do not revisit on appeal. The probate court also acted well within its discretion in rejecting Ronald s assertion it should defer confirmation of the sale until it resolved his petition to remove O Keeffe as administrator. Ronald advanced no reason to expect the facts relevant to confirmation of the sale would change, even if O Keeffe were removed. In the meantime, a continuance risked the loss of a willing buyer. Similarly, the court acted well within its discretion in concluding no purpose would be served by delaying confirmation of the sale until it resolved the continuing dispute regarding O Keeffe s decision in 1997 to accept Phillip s bid to purchase personal property and allow him to pay for it by an offset against Phillip s final distribution. Regardless of how this dispute may finally be resolved, the outcome would not change the determination the sale was necessary or advantageous to the estate, and in the meantime a ready and willing buyer would be lost. The Attempted Overbid Was Properly Rejected The probate court shall accept the highest offer, or overbid, at a hearing to confirm a sale of estate property only if the offer satisfies several conditions, including that [t]he offer complies with all provisions of law. (§ 10311, subd. (a)(3).) If an overbid does not comply with all the conditions set forth in section 10311, the court may reject it and has no duty to order a new sale. (§ 10311, subd. (c).) The overbid Ronald made on Carolyn s behalf did not comply with all provisions of law. Rule 14.67(E) of the Superior Court of San Francisco Local Rules requires submission of a cashier s check for 10 percent of the overbid amount. A cash deposit protects the estate by providing an immediate source of funds to offset loss suffered in the event the purchaser defaults. (See Estate of Mesner (1951) 37 Cal.2d 563, 567; see 9 also § 10350, subds. (a), (e) [specifying remedies upon default].) Ronald acknowledged he did not have a 10% cashiers check. Accordingly, the probate court properly refused to accept his attempt to overbid on Carolyn s behalf. (See Barthelmess, supra, 198 Cal.App.3d at pp. 739-740 [court did not abuse its discretion by confirming sale and rejecting beneficiary s overbid where beneficiary did not make a 10 percent deposit].) Carolyn asserts despite the specification in the notice of sale that bids must be all cash the court should have accepted credit for her undistributed one-fourth share in the property in lieu of a 10 percent cash deposit. She notes the March 1, 2006, order provided the heirs could bid using their potential interest as an heir at law, if they also paid $140,000 in cash. She asserts the court therefore should have allowed her to bid the cash equivalent of her beneficiary interest over $140,000 to cover the required ten percent deposit. This contention fails for several reasons: First, it is waived because Ronald did not ask the probate court to accept credit in lieu of a cash deposit. Ronald s assertion that Carolyn basically owned half of the property, did not reasonably convey to the court a request to accept Carolyn s one-quarter share in lieu of a cash deposit. Second, the March 1, 2006, order allowed heirs to use their potential share in bidding, but said nothing about excusing heirs from complying with the local rule requiring a 10 percent cash deposit.5 Third, neither Ronald nor Carolyn cite any authority that the probate court had discretion to waive the 10 percent cash deposit. Fourth, a bid predicated on credit for 5 At oral argument Carolyn asserted the March 2006 order allowing heirs to bid their potential interest served the same purpose as the local rule requiring a 10 percent deposit, and therefore enforcing the local rule in this case is inconsistent with the purpose of the statute it implements, i.e., the requirement of section 10311, subdivision (a)(2), that a bid be made by a financially responsible person. This is not an argument Carolyn advanced in her opening brief on appeal, and it therefore has been waived. Furthermore, eventual credit against her share once the estate is finally distributed would not provide the estate with the same protection if there were a default, for example, as immediate access to a 10 percent cash deposit, especially where, as here, the estate had limited cash available to it and is continuing to incur litigation expenses. Therefore, requiring compliance with local rule is entirely consistent with the statutory purpose of requiring the bid be made by a responsible person. (§ 10311, subd. (a)(2).) 10 Carolyn s one-fourth interest did not substantially comply with the terms specified in the notice of sale requiring all cash bids. (§ 10307 [a bid must substantially comply with any terms specified in the notice of sale ].) As we explained in a prior appeal, O Keeffe v. Daley, supra, No. A109762 at pages 5-6, 13, a bid based in part upon credit for a partial distribution which has not yet been made by petition and order (see §§ 11601, 11620 et seq.) is not an all-cash bid. Although the probate court refused the overbid for noncompliance with the local rule requiring a 10 percent cash deposit, the overbid also did not comply with the terms of the March 1, 2006, order specifying any heir(s) at law wishing to bid using their potential interest . . . [shall] . . . include cash in the amount of $140,000.00. Carolyn acknowledges this problem, but asserts the only reason for the requirement of a cash payment of $140,000 was Ronald s then-debt to the estate of $114,000. She suggests when this court, in appeal No. A109762, reversed the portion for the judgment finding Ronald owed the estate $114,000, the reason for this particular term of the 2006 order was eliminated. However, the March 2006 order was appealed and affirmed in the consolidated appeals Nos. A13999 and A116232, and therefore is final. If changed circumstances warranted modification of the order, relief should have been sought prior to the hearing to confirm the sale. We therefore conclude the probate court did not abuse its discretion in confirming the sale of the 24th Avenue property to Yao Luan and Li Zen Zhang and in rejecting Carolyn s noncompliant overbid. Motion to Declare Ronald and Carolyn Vexatious Litigants As we stated above, in addition to filing a respondent s brief, O Keeffe filed a motion to declare Ronald and Carolyn vexatious litigants and for issuance of a prefiling order pursuant to Code of Civil Procedure section 391 et seq. Such a motion may be filed in the Court of Appeal in the first instance. (See Andrisani v. Hoodack (1992) 9 Cal.App.4th 279, 281.) Where, as here, a litigant has not already been declared vexatious, and has not previously received the benefit of a noticed motion and hearing, the appellate court may not declare the litigant vexatious without a noticed motion and 11 hearing, including oral argument, if requested, and an opportunity to present evidence by declaration. (See Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 225; see also In re R.H. (2009) 170 Cal.App.4th 678, 687. We therefore deferred action on O Keeffe s motion until disposition of the instant appeal on the merits to allow Ronald and Carolyn the opportunity to submit relevant evidence by declaration and argue the issue. We now grant the motion as to Ronald. Ronald Is a Vexatious Litigant Code of Civil Procedure 391, subdivision (b)(1), defines a vexatious litigant as a person who, in the immediately preceding seven years, has commenced, prosecuted, or maintained in propria persona at least five litigations . . . that have been . . . finally determined adversely to the person. (Code Civ. Proc., § 391, subd. (b)(1).) Thus, unlike the definition of a vexatious litigant set forth in subdivision (b)(3), which requires some assessment of the merits and whether the litigant s tactics are frivolous or intended to cause delay, subdivision (b)(1) defines vexatiousness by the number of litigations initiated over a seven-year period that have been adversely decided to the pro per litigant. (Id., subd. (b)(1), (3).) A litigation for purposes of subdivision (b)(1) includes proceedings initiated in the Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or other criminal matters. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1219.)6 Since 2006, Ronald has filed 10 appeals in propria person in this court. He obtained a partial reversal in his first appeal, No. A109762, but the next seven were all decided adversely to him, resulted in unqualified affirmances, and are final. (See O Keeffe v. Daley (Jan. 7, 2008, A113999, A116232) [nonpub. opn.]; O Keeffe v. Daley (Apr. 29, 2008, A118233) [nonpub. opn.]; O Keeffe v. Daley (Sept. 16, 2008, A120213) [nonpub. opn.]; O Keeffe v. Daley (Oct. 28, 2008, A120596) [nonpub. opn.]; O Keeffe v. 6 Ronald s reliance on Baldwin v. Stewart (1933) 218 Cal. 364, 367, for the proposition that an appeal in probate proceedings is not a litigation for purposes of subdivision (b)(1) is misplaced. Baldwin was decided decades before the vexatious litigant statue was enacted and has no bearing on the meaning of litigation for purposes of Code of Civil Procedure section 391, subdivision (b)(1). 12 Daley (March 27, 2009, A121671) [nonpub. opn.]; and Daley v. O Keeffe (Oct. 13, 2009, A123021) [nonpub. opn.].)7 He, therefore, during a seven year-period, has commenced, prosecuted, or maintained in propria persona at least five litigations . . . that have been . . . finally determined adversely to the person. (Code Civ. Proc., § 391, subd. (b)(1).) Accordingly, he is a vexatious litigant as defined in Code of Civil Procedure section 391, subdivision (b)(1). There is no merit to Ronald s assertion this court is disqualified from deciding whether he is a vexatious litigant because it rejected his prior appeals. We decide all appeals on the basis of the record and applicable law, and rendering an adverse ruling on such basis is not a ground for disqualification. (Say & Say, Inc. v. Ebershoff (1993) 20 Cal.App.4th 1759, 1764, fn. 8.) There, likewise, is no merit to his assertion this court displayed bias toward him in appeal No. A121671 by stating [t]he number of appeals Ronald has taken from this estate proceeding is excessive and noting Code of Civil Procedure section 391, subdivision (b)(1). We did not make this observation because of any bias toward Ronald, but because the procedural history before us, including the growing string of unsuccessful appeals, indicated Ronald might benefit from consulting counsel in evaluating his claims before filing any further appeals. Ronald also contends our reference in appeal No. A121671 to Code of Civil Procedure section 391, subdivision (b), effectively and improperly initiated the motion to declare him a vexatious litigant. The referenced footnote was not the initiation of a motion to declare him a vexatious litigant. Furthermore, Code of Civil Procedure section 391.7 specifically authorizes a court to enter a prefiling order on its own motion. (Code Civ. Proc., § 391.7, subd (a).) Ronald also objects that his multiplicity of appeals over such a short period of time was unavoidable because the probate court orders were immediately appealable and he therefore could not wait to file notices of appeal. But it is not the mere exercise of his right to appeal that qualifies Ronald as a vexatious litigant. Rather, it is the fact he has 7 We have not included the instant ninth appeal since it is not yet final or the tenth appeal (No. A127422) which is still pending. 13 repeatedly lost many meritless . . . suits while acting in propria persona . . . combined with the fact that he has filed [yet] another appeal, which we have determined also lacks merit, that support[s] the reasonable inference that the suer has been using the court system inappropriately and will continue to do so. (Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 57, disagreed with on another ground by In re Bittaker (1997) 55 Cal.App.4th 1004, 1006, fn. 1.) While Ronald claims declaring him a vexatious litigant will compromise his right to appeal, declaring him such and issuing a prefiling order will not preclude him from filing litigations. A person subject to a prefiling order may still file state suits in two ways. First, he or she can persuade the presiding judge of the relevant court the litigation has merit and has not been filed for the purposes of harassment or delay, in which case the judge may condition such filing on posting security. Second, he or she can employ an attorney to file an action. ([Code Civ. Proc.,] § 391.7, subd. (b).) The vexatious litigant who employs an attorney avoids the prefiling requirements but may still have to post security. (Wolfgram v. Wells Fargo Bank, supra, 53 Cal.App.4th at p. 49.) We therefore grant O Keeffe s motion and declare Ronald Daley a vexatious litigant pursuant to Code of Civil Procedure section 391, subdivision (b)(1), and issue a prefiling order pursuant to Code of Civil Procedure section 391.7. This prefiling order has statewide effect and applies to any and all litigation Ronald may file in the future. 8 (Code Civ. Proc., § 391.7, subds. (b)-(e).) Carolyn Is Not a Vexatious Litigant Carolyn has been an appellant in only two prior appeals, Nos. A109762 and A116232, and for that reason, alone, is not a vexatious litigant under Code of Civil Procedure section 391, subdivision (b)(1), which requires the pursuit of five unsuccessful litigations within seven years. (Code Civ. Proc., § 391, subd. (b)(1).) 8 Accordingly, this order does not apply to Ronald s tenth appeal, No. A127422, which is already pending. It does not, however, foreclose the filing of a motion to require security in that appeal pursuant to Code of Civil Procedure section 391.1. (Code Civ. Proc., § 391.1 et seq.) 14 O Keeffe urges that Carolyn be declared a vexatious litigant under Code of Civil Procedure section 391, subdivision (b)(3), on the ground she repeatedly files unmeritorious motions, pleadings, or other papers . . . , or engages in other tactics that are frivolous or solely intended to cause unnecessary delay. (Code Civ. Proc., § 391, subd. (b)(3).) Subdivision (b)(3), like (b)(1), applies only to actions in propria persona. (Id., subd. (b)(3).) However, Carolyn has been represented by counsel in virtually all her litigation endeavors. Citing In re Shieh (1993) 17 Cal.App.4th 1154 (Shieh), O Keeffe contends Carolyn can nevertheless be declared a vexatious litigant under subdivision (b)(3) because she and her counsel are acting in tandem with Ronald and are his puppets. He asserts that when counsel does not act as a neutral assessor of the client s claims, we may declare the client a vexatious litigant based upon acts counsel takes on her behalf. Shieh does not reach as far as O Keeffe urges. The plaintiff in Shieh was, himself, an attorney. He had previously been declared a vexatious litigant numerous times by state and federal courts. He therefore qualified as a vexatious litigant under Code of Civil Procedure section 391, subdivision (b)(4) based upon acts previously taken in propria persona irrespective of the fact he was currently represented by counsel.9 (Shieh, supra, 17 Cal.App.4th at p. 1166.) The court s discussion of attorneys acting as puppets was only in the context of fashioning an appropriate prefiling order once the court had determined Shieh fell within the definition of a vexatious litigant. The court held the unique facts of the case warranted extending the prefiling order to new litigation . . . whether in propria persona or through an attorney, (id. at pp. 1167-1168, italics added) because even when ostensibly represented by counsel, Shieh himself wrote the pleadings. (Ibid.) 9 Code of Civil Procedure section 391, subdivision (b)(4) applies to persons currently represented by counsel whose conduct was vexatious when they represented themselves in the past. (Camerado Ins. Agency, Inc. v. Superior Court (1993) 12 Cal.App.4th 838, 842.) 15 Carolyn has not yet been declared a vexatious litigant by any court. She is not herself an attorney. And we have not been presented with sufficient evidence to conclude the pleadings she has filed were drafted by her, and not by her attorney of record. We therefore decline to find her a vexatious litigant under Code of Civil Procedure section 391, subdivision (b)(3). DISPOSITION The September 22, 2009, order confirming the sale of property located at 3000 24th Avenue in San Francisco, California is affirmed. Appellant Ronald Daley is hereby declared a vexatious litigant within the meaning Code of Civil Procedure section 391, subdivision (b)(1). The clerk is directed to file a prefiling order pursuant to Code of Civil Procedure section 391.7 prohibiting Ronald Daley from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. The clerk is further directed to transmit a copy of this order to the Judicial Council for inclusion in the record of vexatious litigants and dissemination to all courts of this state. (Code Civ. Proc., § 391.7, subd. (e).) _________________________ Banke, J. We concur: _________________________ Marchiano, P. J. _________________________ Margulies, J. 16

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.