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Family Law Tentative Rulings

The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact the Judicial Assistant by telephone at (707) 521-6732 by 4:00 p.m. on the day before the hearing. Any party requesting an appearance must notify all other opposing parties of their intent to appear.

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Law & Motion Tentative Rulings

April 12, 2024 at 9:30 a.m.

1.      SFL51683 Guzman v. Dos Santos

          The instant case has been before the court since July 2010, when petitioner Dawn Renee HOFSTETTER (Guzman) applied for a DVRO and petitioned for dissolution.  She and respondent Ivan Sol Guzman DOS SANTOS have a minor child, Rio, who was five months old at that time.  Rio currently lives with DOS SANTOS, who resides in Sonoma, with periodic visitation with HOFSTETTER, who lives in Willows. 

This matter comes on calendar for DOS SANTOS’s request, filed on December 1, 2023, for an order declaring HOFSTETTER a vexatious litigant (“VL”) pursuant to Code of Civil Procedure sections 391 et seq., and restricting her ability to file further motions in this matter.  The court heard the motion on January 12, 2024, and continued the hearing for further research.  For the reasons set forth below, the motion is GRANTED. 

         I.  Governing law

           A. Definition

          CCP § 391(b) defines “vexatious litigant” in two different ways, as relevant here.  Subdivision (b)(1) provides that a person who, in propria persona, has lost at least five civil cases (other than small claims) in the last seven years may be declared a VL.  Subdivision (b)(3) makes the same provision regarding a person who, in the course of a single 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.”  The statute does not define “repeatedly,” but as few as three motions can “form the basis for a vexatious litigant designation where perhaps they all seek the exact same relief which has already been denied or all relate to the same judgment or order or are filed in close succession.”  (Morton v. Wagner (2007) 156 Cal.App.4th 963, 972.)  In order to support a VL finding, “repeated motions must be so devoid of merit and be so frivolous that they can be described as a flagrant abuse of the system, have no reasonable probability of success, lack reasonable or probable cause or excuse, and [be] clearly meant to abuse the processes of the courts and to harass the adverse party.”  (Ibid., internal quotation marks omitted.)  Repeated unmeritorious filings in a child custody matter can support a VL finding.  (In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1344-1345.)

         B.   Remedy

          A VL finding has several potential effects on the person so designated.  First, if the VL is the plaintiff in a civil action, the defendant may move the court for either dismissal or an order requiring an undertaking to pay the defendant’s expenses, including attorney’s fees.  (CCP § 391.1.) 

          Second, the court “shall” order a plaintiff who has been declared a VL to provide such an undertaking if the court finds “that there is no reasonable probability that the plaintiff will prevail, and “shall” dismiss the action if it determines that the lawsuit was filed for purposes of harassment or delay.  (CCP § 391.3.) 

          Finally, the court may issue a “prefiling order” that requires the VL to obtain leave from the presiding judge before filing any new case in any California court, or from filing “any petition, application, or motion other than a discovery motion, in a proceeding under the Family Code or Probate Code, for any order” without such leave.  (CCP § 391.7(a).)  The presiding judge may condition the filing of such a pleading “upon the furnishing of security for the benefit of the defendants as provided in Section 391.3.”  (CCP § 391.7(b).)

      II. Analysis

            A.  DOS SANTOS’s moving papers are somewhat unclear as to the statutory basis of the motion.

          In his memorandum of points and authorities, DOS SANTOS notes that “In the instant matter, Dawn has filed more than five unmeritorious actions which have been determined adversely against her in the past seven years.”  That portion of that passage following the comma closely tracks the language of CCP § 391(b)(1), which provides, in pertinent part, that a VL can be a person who

“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 . . . finally determined adversely to the person.”

DOS SANTOS replaces “litigations” with “actions,” but the references to seven years and five litigations make this sound very much like an assertion that HOFSTETTER has satisfied the requirements of CCP § 391(b)(1).  But it makes no sense to aver that she satisfied them by her conduct “[i]n the instant matter,” because the instant matter is just one litigation in the sense described in CCP § 391(a), and it is impossible to maintain other litigations “in” it.

          The Court assumes that DOS SANTOS intends to bring the instant petition pursuant to CCP § 391(b)(3), which defines a VL as a person who

“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.”

This interpretation is consistent with the examples of HOFSTETTER’s misconduct enumerated in the moving papers, all of which refer to motions filed in the instant case.  Under CCP § 391(b)(3), neither the seven-year timeframe nor the five-litigation limit is significant; all that matters is that the unmeritorious motions or pleadings be filed “repeatedly.”

  B.      There are sufficient grounds for declaring HOFSTETTER a vexatious litigant pursuant to CCP § 391(b)(3).

          DOS SANTOS lists seven filings by HOFSTETTER as evidence of her amenability to a VL designation.  Each is discussed below.  The Court agrees that each filing qualifies as either an “unmeritorious motion[ or] pleading[],” a “tactic[] that [is] frivolous,” or both.  (CCP § 391(b)(3).)

   1. June 28, 2017: ex parte custody motion

          On June 20, 2017, HOFSTETTER, who at that time was living in Kelseyville, obtained a temporary domestic violence restraining order against DOS SANTOS in the Lake County Superior Court.  Eight days later, on June 28, she filed a Request for Order (“RFO”) in this Court.  Checkboxes on the form cover sheet requested changes to child custody and visitation conditions, and HOFSTETTER’s declaration stated “I don’t believe it is in Rio’s best interest to be in his Father’s care or visitation at this time.  With a restraining order joint custody isn’t practical.”  Thus, the request was for 100% custody for HOFSTETTER and no visitation for DOS SANTOS.

          The motion was denied on June 28, 2017, the same day it was filed, on the basis that her declaration did not describe an emergency that would justify issuing temporary orders.  The parties were ordered to attend a counseling session on August 29, 2017. 

          The Court finds that this motion was unmeritorious.

   2. January 24, 2022: motion to modify custody orders

          On January 24, 2022, HOFSTETTER filed an RFO seeking a change to the parenting plan that had been in effect since June 16, 2020.  She requested, among other things, that Rio be allowed to shower daily, with no time restrictions.  A hearing was held on August 3.  On August 9, the Court ordered that the 2020 parenting plan remain in place.  The court also denied both parties’ requests for sanctions, and ordered that DOS SANTOS’ counsel was permitted to charge HOFSTETTER’s credit card $100 per month until a previous $1,500 sanction order was satisfied.

          The Court finds that this motion was unmeritorious.

        3. April 11, 2022: ex parte custody motion

          On April 11, 2022, HOFSTETTER filed an RFO seeking a temporary emergency order altering the parenting plan.  In her declaration, she stated that Rio was not receiving adequate medical or dental attention in DOS SANTOS’s custody, and she reiterated the point that Rio was not bathing regularly.  She requested “to have Rio until all matters are settled and until he can see his physician.”  DOS SANTOS filed opposition to the RFO on the same day, stating that DOS SANTOS was not properly served and that there was no reason for a change in custody conditions.  It also noted that a custody review hearing was already set for June 1, a month and a half after HOFSTETTER’s ex parte motion.  The motion was denied on the same day, April 11, on the basis that the RFO did not describe an emergency situation or give sufficient reason for a custody change.

          The Court finds that this motion was unmeritorious, frivolous, and duplicative of the January 24 motion.

     4.  November 10, 2022: ex parte motion regarding Rio’s vaccine exemption

          On November 10, 2022, HOFSTETTER filed an RFO, apparently requesting the court to order DOS SANTOS to take Rio to a doctor, rather than a physician assistant (“PA”), to obtain an exemption from the requirement that he be vaccinated in order to attend school.  The request suggests that DOS SANTOS had an appointment with a PA for that purpose on November 13.  The RFO was accompanied by a Declaration Regarding Notice form stating “There is no time to serve beyond email which will be done to Bob Montgomery [counsel for DOS SANTOS].”  The request was denied on the same day it was filed on the basis of insufficient notice to DOS SANTOS.

          HOFSTETTER was correct in stating that a PA cannot sign a medical exemption.  (Health & Saf. Code § 120370.)  However, there was no need to involve the court.  It appears that both parties agreed that Rio should be exempted from school vaccinations, and it was entirely predictable that the PA with whom DOS SANTOS had an appointment three days after the RFO was filed would have told him that he needed to consult a licensed physician for that.  There was, therefore, no need for DOS SANTOS to hear this from the court.  Accordingly, the Court finds that this motion was frivolous.

   5.  July 3, 2023: ex parte motion to modify SSDI payments and custody orders

          On July 3, 2023, HOFSTETTER filed an RFO asking the court to order DOS SANTOS to “remove his name from being Rio’s payee on Mother’s SSDI which is needed for her and Rio to maintain a 2 bedroom place,” and “to return the [SSDI] payment for July.”  This request was apparently prompted by a letter to HOFSTETTER from the Social Security Administration dated June 22, 2023, informing her of the Administration’s decision that Rio’s SSDI benefits should be sent to a different payee, presumably DOS SANTOS.  The RFO also requested:

  • A change to the exchange location and time
  • Custody of Rio on fifth weekends
  • An order that DOS SANTOS “stop harassing me by sending letters to public officials accusing me of irrational things & . . . stop defaming me to Rio’s school employees”
  • An order that DOS SANTOS desist from several other forms of harassment
  • An order “that Rio be encouraged to use his phone watch”

          DOS SANTOS filed opposition on the same day, July 3.  The opposition stated that DOS SANTOS had not been properly served; that there was no emergency justifying an ex parte request; that the requested change to the exchange location and time had been rejected by the Court in a hearing on March 28, 2023; and that the Court lacked jurisdiction over Social Security payments.

          The Court denied the request on the same day it was filed, on the basis that it did not describe a situation justifying emergency orders.  However, the Court set a hearing on October 16, 2023 to consider permanent orders.  Following that hearing, the Court denied the motion to modify its March 28, 2023 custody and visitation order on the basis that HOFSTETTER had failed to show any change in her circumstances, and denied the motion concerning the SSDI benefits on the basis that “the Court believes that it does not have jurisdiction over Federal issues concerning Social Security benefits.”

          It is somewhat unclear (due in no small part to the extremely poor reproduction quality of the original motion) whether HOFSTETTER’s request regarding the exchange location actually sought a change.  The RFO says “Return exchange location to Dunnigan Pilot at the Tesla station” and “I request exchanges be returned to the Dunnigan location at the Tesla station.”  It also comments that “the physical demands of a 6+ hour drive are not w/in the scope of my abilities.”  If HOFSTETTER was indeed driving more than six hours to pick up and drop off Rio, Dunnigan would certainly have been more convenient; according to Google Maps, it’s a 45-minute drive from Willows, where she lived at that time.  But the March 28, 2023 order, which DOS SANTOS attached to his opposition, stated that “Exchanges shall continue to take place at the Pilot Travel Center, 30035 County Road 8, Dunnigan, CA 95937.”  Thus, it is unclear whether HOFSTETTER’s request regarding the location change was duplicative of a request that had been denied at a hearing three months earlier, or was unnecessary because it requested something she already had.  In either case, it was not something the Court should have been asked to address.

          The Court finds that the motion was unmeritorious both insofar as it requested a state court to interfere with the decisions of a Federal agency and insofar as it requested this Court to second-guess the Social Security Administration’s determination about the appropriate payee.  The court further finds that the motion was frivolous insofar as it asked the court to order a teenager to use a phone watch, and either duplicative or frivolous with regard to the request to change the exchange location.

   6.  July 12, 2023: motion to disqualify Judge Bertoli

          On July 12, 2023, HOFSTETTER filed a pleading captioned “Motion for Peremptory Challenge,” which sought to have the instant case reassigned to a different judge pursuant to CCP § 170.6.  The accompanying declaration recited that Judge Bertoli “is prejudiced against the PLAINTIFF” and that “Defendant believes that the PLAINTIFF cannot have a fair and impartial trial or hearing before this Judge,” but gave no other details. 

          The motion was denied as untimely the day after it was filed.  The denial was correct.  CCP §170.6 sets forth strict time limits on the filing of disqualification motions, triggered by when a judge was assigned to the case.  Judge Bertolli has been assigned to this case for over a decade.  There is no question that the motion was untimely.

An untimely challenge to a judicial officer may be deemed a frivolous tactic that supports a VL finding.  (Golin v. Allenby (2010) 190 Cal.App.4th 616, 639-640.)  The Court finds that HOFSTETTER’s challenge to Judge Bertoli was frivolous.

  7.  October 6, 2023: motion to hold DOS SANTOS in contempt

          On October 6, 2023, HOFSTETTER filed a request for an OSC re. contempt of court, which alleged that DOS SANTOS had violated 28 court orders addressing Rio’s medical care.  The request listed the orders by their dates.  However, the listed dates do not correspond to any orders issued by the Court.  For example, there are no orders dated 9/2/22, 9/6/22, 9/8/22, 9/15/22, 9/27/22, or 10/11/22, five of the dates listed in the affidavit.  However, an order signed by the Court on August 9, 2022 and filed on October 20, 2022 provides that “RIO’s medical and dental care providers shall be in Sonoma County,” that “Father shall ensure that Mother is kept abreast of the providers’ names and contact information,” that “Father shall ensure that RIO is up to date on all his school required immunizations, and that “Father shall ensure that RIO attends his two dental check-ups per year.”  Similarly, there are no orders dated 2/7/23, 2/9/23, 2/21/23, 2/26/23, or 3/9/23, but an order signed on February 23, 2023 and filed on February 24 contains the same language regarding Rio’s medical and dental care.  

          DOS SANTOS moved to discharge the OSC request on November 3, 2023.  The motion stated that “The OSC is completely unintelligible, vague, and ambiguous.”  On November 7, DOS SANTOS’s counsel filed a memorandum of points and authorities in support of the motion to discharge, making fundamentally the same claim and asserting that HOFSTETTER’s OSC did not state a prima facie case of contempt.

On December 26, 2023, HOFSTETTER attempted to file a Supplemental Declaration Affidavit/Facts to Support Contempt.”  The filing was rejected on the basis that the “Pleading document does not comply with CRC, rule 2.101 – 2.117.”  There is no rule 2.101, but that section of the CRC addresses the format of papers presented for filing.  The document was presumably rejected because it had no page numbers after the first page (Rule 2.109) and no footer as prescribed by Rule 2.110.  Nevertheless, according to a proof of service HOFSTETTER filed on January 5, 2024, she served the supplemental declaration on DOS SANTOS’s counsel on January 4.

          At a hearing on January 12, 2024, the Court dismissed HOFSTETTER’s contempt motion without prejudice.  The Court also continued the hearing on the instant motion, DOS SANTOS’s request for a VL finding, to February 23, 2024.

          The Court finds that HOFSTETTER’s motion to hold DOS SANTOS in contempt fell short of being frivolous.  It was poorly drafted, and the dates of the orders DOS SANTOS was alleged to have violated appear to be fictitious.  Nevertheless, there was a small grain of accuracy amid the confusion, in that DOS SANTOS really had been ordered to take certain steps concerning Rio’s medical and dental care.  If DOS SANTOS was not complying with those orders, as HOFSTETTER appears to have alleged, he could reasonably have been held in contempt.  This is likely the reason the court dismissed the motion without prejudice, permitting HOFSTETTER  to file a more cogent and less confusing version.  But it was unmeritorious and a waste of the Court’s time.

C.    A prefiling order is justified.

          It is somewhat unclear what remedy DOS SANTOS is seeking.  In his memorandum of points and authorities, he asks the Court “to restrict [HOFSTETTER] filing any new actions unless those new actions are first approved by the court.”  By “actions,” he presumably means “motions in the instant case,” since that request immediately follows a list of seven motions in this matter that DOS SANTOS characterizes as “actions.”  That interpretation is consistent with the request on DOS SANTOS’s RFO form that “the Court make appropriate orders which prohibit the Petitioner from filing any new actions in this proceeding without first obtaining court approval.”  (Emphasis supplied.) 

However, DOS SANTOS follows that request with “as set forth in the proposed order, attached hereto, marked as Exhibit A,” and Attachment 10 to the Request for Order asks the court to “grant an order determining the Petitioner to be a vexatious litigant as set forth in my proposed order, attached hereto, marked as Exhibit A.”  Exhibit A is a filled-out copy of Judicial Council form VL-100, which prohibits the designated VL “from filing any new litigation in the courts of California” without prior approval.  “Litigation,” in the context of form VL-100, clearly means “new cases.”  Thus, the VL-100 form order does not prevent the identified VL from filing new motions in an ongoing case; it only forestalls new cases.  The Court finds that this type of prefiling order is unjustified, as there is no factual basis to conclude that HOFSTETTER will file unmeritorious lawsuits in the future.  There has been no suggestion that she has ever been involved in any litigation other than the instant case.

          Upon declaring a person to be a VL, a court may issue a prefiling order preventing that person from filing “any petition, application, or motion other than a discovery motion, in a proceeding under the Family Code or Probate Code, for any order.”  (CCP § 391(a) and (d).)  The Court assumes that that is the type of prefiling order DOS SANTOS is seeking, based on the request that HOFSTETTER be prohibited from filing “new actions in this proceeding.”  The Court finds that the repeated unmeritorious motions filed by HOFSTETTER in the instant case justify the issuance of that type of prefiling order.

D.    No security is ordered at this time.

          “[I]f, after hearing the evidence on the [VL] motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix.”  (CCP § 391.3(a).)

HOFSTETTER is the petitioner in the underlying dissolution action, but it is not clear whether that makes her a plaintiff as contemplated by the statute.  However, the Court does not need to reach that question because the Court cannot make a finding that there is no reasonable probability that HOFSTETTER will prevail in this litigation.  The dissolution has already been granted, so in that sense she has prevailed already, but at this point, well over a decade later, this is an ongoing process of court supervision of the custody conditions of HOFSTETTER and DOS SANTOS’s minor child, to which the concept of prevailing does not apply. 

          Therefore, the Court will not order HOFSTETTER to furnish a security undertaking at this time.  The Court may do so in the future pursuant to CCP § 391.7(b), which permits the presiding judge to condition the filing of any new petition, application, or motion “upon the furnishing of security for the benefit of the defendants as provided in Section 391.3.”

           III.  Conclusion

          DOS SANTOS’s motion is GRANTED.  HOFSTETTER is declared to be a vexatious litigant pursuant to CCP § 390(b)(3).  HOFSTETTER is ordered, pursuant to CCP § 391.7, to file no new petition, application, or motion other than a discovery motion in the instant case without first obtaining leave of the presiding judge of this Court.  DOS SANTOS’s counsel is directed to submit a written order to the court consistent with this ruling.

2.      SFL078876 SIGUR v. ORTIZ

          Motion for Change of Venue granted. This matter shall be transferred to Alameda County Superior Court upon payment of appropriate fees or receipt of a fee waiver. Harry D. Sewall is hereby relieved as minor’s counsel.

3.      SFL092483 IRMO Pineda

          Appearance required.

THIS IS THE END OF THE TENTATIVE RULINGS.

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