Kinney v. Clark

219 Cal. Rptr. 3d 247, 12 Cal. App. 5th 724, 2017 Cal. App. LEXIS 561
CourtCalifornia Court of Appeal, 5th District
DecidedMay 17, 2017
DocketB265267
StatusPublished
Cited by12 cases

This text of 219 Cal. Rptr. 3d 247 (Kinney v. Clark) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kinney v. Clark, 219 Cal. Rptr. 3d 247, 12 Cal. App. 5th 724, 2017 Cal. App. LEXIS 561 (Cal. Ct. App. 2017).

Opinion

CHANEY, J.

*726Charles Kinney appeals from a post-judgment award for attorney fees and costs Michele Clark incurred in a prior appeal while attempting to enforce an earlier award for attorney fees and costs against Kinney. Kinney has been challenging Clark's entitlement to fees and costs in this action since 2008, when the trial court first awarded Clark attorney fees and costs under a residential purchase agreement to which she and Kinney were parties and under which Kinney brought this unsuccessful cross-action against Clark. This appeal, like the numerous appeals before, lacks merit. We grant Clark's motion to dismiss the appeal because it is frivolous.

*727The Los Angeles Superior Court, this court, and the United States District Court for the Central District of California all have declared Kinney to be a vexatious litigant. Under a prefiling order issued in 2011, Kinney, while self-represented, may not file new litigation (including any appeal or writ) in a California state court without first obtaining leave of the presiding judge. Undeterred, Kinney has retained a series of attorneys to represent him in his continued and unconscionable campaign in the courts against Clark. The prefiling order covering Kinney's in propria persona litigation has been ineffective in constraining his vexatious litigation. Accordingly, on Clark's motion, we impose an expanded prefiling order, requiring Kinney to obtain leave of the presiding judge before filing new litigation (including any appeal or writ) against Clark or her attorney in a court of this state, even when he is represented by counsel. This prefiling order is necessary to protect Clark, her attorneys, and our courts from Kinney's abuse of the judicial process.

On the court's own motion, we impose monetary sanctions on Kinney for filing a frivolous appeal.

BACKGROUND

In 2005, Clark sold a residential property in the Silver Lake neighborhood of Los Angeles (the Fernwood property) to Kinney and Kimberly Kempton. The purchase agreement governing the transaction (the Agreement) included a prevailing party attorney fees clause.

Kinney's State Court Actions

In 2006, Kinney and Kempton began filing lawsuits concerning the Fernwood property in the Los Angeles Superior Court. They sued their new neighbors, the City of Los Angeles, Clark, and the brokers who represented her in the transaction. Most of the litigation related to easements and fences. Kinney, an attorney, *2521 represented himself and Kempton in the six lawsuits2 they filed (and ultimately lost) regarding the Fernwood property. (In re Kinney , supra , 201 Cal.App.4th at pp. 955-956, 135 Cal.Rptr.3d 471.) *728In the action before us, Kempton v. Cooper , BC354136 (the Present Action), Kinney and Kempton filed a cross-action against Clark, alleging unmerchantable title. The trial court sustained Clark's demurrer to the cross-complaint without leave to amend, and the judgment was affirmed on appeal. (Kempton v. Clark (June 30, 2008, B200893), 2008 WL 2569375 [nonpub. opn.].)

Following Kinney and Kempton's unsuccessful appeal, Clark moved for attorney fees under the Agreement as the prevailing party in the litigation. On December 15, 2008, the trial court granted her motion and awarded $9,349 in attorney fees. Kinney and Kempton appealed and we affirmed the fee award. (Kempton v. Clark (Feb. 3, 2010, B213386), 2010 WL 372128 [nonpub. opn.].)

Kinney is Declared a Vexatious Litigant in State Courts

Meanwhile, Kinney and Kempton were still litigating Kempton v. Clark , BC374938, a fraud action arising from the Fernwood property transaction (the Related Action). In 2008, at the request of Clark and her brokers in the Related Action, the Los Angeles County Superior Court declared Kinney to be a vexatious litigant. (In re Kinney , supra , 201 Cal.App.4th at p. 954, 135 Cal.Rptr.3d 471 ; Kempton v. Clark (Sept. 25, 2014, B248713) [nonpub. opn.], p. 2.) Kinney thereafter dismissed himself as a plaintiff without prejudice, but continued to represent Kempton as her attorney in the Related Action. (Kempton v. Clark , supra, B248713, p. 2.)

Three years later, in a published opinion issued in December 2011, Division Two of this District also declared Kinney to be a vexatious litigant and imposed "a prefiling order prohibiting Kinney from filing any new litigation-either in his own name or in the name of Kimberly Jean Kempton-in the courts of this state without first obtaining leave of the presiding judge." (In re Kinney , supra , 201 Cal.App.4th at pp. 960-961, 135 Cal.Rptr.3d 471.) The opinion explained: "In the Court of Appeal alone, Kinney has lost 16 times since 2007: (1) his writ petition was denied in 2007; (2) he has lost 10 appeals in three different divisions of this appellate district and three appeals in the Fourth Appellate District; and (3) two appeals he filed were involuntarily dismissed by the court. All of the proceedings in this appellate district are related to Kinney's ownership of the Fernwood Property." (Id . at p. 960, 135 Cal.Rptr.3d 471, fns. omitted.)

Clark's Bankruptcy

In July 2010, Clark declared bankruptcy. "The expense of defending against Kinney's *253claims was a substantial factor leading to Clark's bankruptcy." (Kempton v. Clark , supra , B248713, p. 3.) In March 2011, the bankruptcy court ordered Clark to appear in state court and defend the Related Action. *729On Clark's motion, the superior court in the Related Action declared Kempton to be a vexatious litigant because she was "merely acting as Kinney's proxy and he [was] using her as his puppet." (Id . at p. 4.) After Kempton failed to post a bond as ordered, the superior court dismissed the Related Action. Kinney sought relief from this ruling on behalf of Kempton in the bankruptcy court, federal district court, and the Ninth Circuit Court of Appeals. (Id . at pp. 4-5.) He was unsuccessful in each venue.

After the superior court dismissed the Related Action, Clark moved for attorney fees against Kinney and Kempton under the Agreement. Kinney opposed the motion, arguing Clark lacked standing to claim attorney fees and costs due to her bankruptcy. (Kempton v. Clark , supra

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Cite This Page — Counsel Stack

Bluebook (online)
219 Cal. Rptr. 3d 247, 12 Cal. App. 5th 724, 2017 Cal. App. LEXIS 561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinney-v-clark-calctapp5d-2017.