Schmid v. County of Sonoma CA1/2

Opinion

Filed 8/27/26 Schmid v. County of Sonoma CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

FREAR STEPHEN SCHMID et al., Plaintiffs and Appellants, A172089

v. COUNTY OF SONOMA, (Sonoma County Super. Ct. No. SCV270568)

Defendant and Respondent.

The trial court declared attorney Frear Stephen Schmid (Frear) a vexatious litigant on the ground that he had suffered five adverse determinations in the last seven years in cases he had brought in propria persona (pro per) (Code Civ. Proc., § 391, subd. (b)(1)1) and included a prefiling order barring him from initiating any further litigation in pro per without leave of court. It declined to find his wife, Astrid, a vexatious litigant but cautioned that if any of her future court filings appeared to be prepared by Frear, they would not be permitted unless Frear substituted in as her counsel.

Represented by counsel (at least, nominally), both now appeal. Astrid, barely addressing whether we even have jurisdiction to address her claims,

Unless otherwise specified all further statutory references are to the 1

Code of Civil Procedure.

2

contends the trial court had no statutory or legal basis to opine on whether it would accept her filings in the future if they appeared to be the work of her husband and, furthermore, that its cautionary comments are unconstitutional several times over. Frear challenges the order entered against him with a dizzying number of arguments, both statutory and constitutional.

This is not our first encounter with the Schmids’ self-represented litigation activities. A little over one year ago, we affirmed a judgment entered against them in a lawsuit they brought in pro per over unpermitted repairs they had made to their barn that, decades later, they sought to legalize. Their lawsuit challenged the authority of local officials to ask for an inspection of the Schmids’ barn before deciding whether to grant them an exemption from local permitting requirements. That lawsuit was the second lawsuit they filed to prevent an inspection of their barn, having previously filed and lost such a suit in federal court on an array of federal constitutional claims. In a lengthy unpublished opinion, we rejected their arguments under state law as to why their rights were being violated by what appeared to be nothing more than a reasonable request for a building inspection, arguments asserting violations of local and state enactments and policies, equitable estoppel and violations of the state constitution. We rejected their many arguments challenging the validity of the local administrative proceedings that resulted in the challenged permitting decision. And we concluded the threshold issue as to whether local law allowed its officials to inspect the barn as a condition of issuing an exemption had been conclusively resolved against them in federal court and they were barred from attempting to relitigate that issue. (Schmid v. County of Sonoma (Mar. 27, 2025, No. A169274) [nonpub.].)

3

Now, we come to this latest appeal from an order declaring Frear a vexatious litigant and imposing a prefiling requirement on him, based on his having suffered at least five adverse determinations in cases he has brought as a self-represented plaintiff in the last seven years (§ 391, subd. (b)(1)). The order was entered before we rendered our opinion in the barn case, and so that loss was not even included.2 Before addressing this latest appeal, we are tempted to inquire whether Frear himself took the laboring oar in preparing the parties’ appellate briefs to evaluate whether his appellate counsel of record has lent his name to the briefs largely as window dressing—that is, to facilitate an effort by Frear to evade the prefiling order on appeal.3 But we will not do so. This appeal has consumed many judicial resources already and we will not devote more.

2 An order declaring a party to be a vexatious litigant, although not itself directly appealable, is reviewable in conjunction with an order requiring the litigant to obtain prefiling judicial permission before initiating new litigation, because the prefiling order is injunctive in nature and therefore appealable. (In re Marriage of Deal (2020) 45 Cal.App.5th 613, 618-619 (Deal).) Here, the vexatious litigant order and prefiling order are combined. Frear may challenge the vexatious litigant determination because the appeal is from a ruling that contains a prefiling order.

3 Given the prefiling order entered against him, Frear himself cannot initiate any appeals in pro per without seeking leave of this court. (See § 391.7.) And appellate courts take such orders seriously. We have the power to consider whether retained counsel is basically just a puppet and whether the vexatious litigant himself is the true author of the appellate briefs counsel has signed. (See In re Kinney (2011) 201 Cal.App.4th 951, 958 (Kinney) [“Although the language of the vexatious litigant statute refers to individuals acting in propria persona, it has also been applied when hired counsel ‘acts as a mere puppet or conduit’ for abusive litigation”]); see also Golin v. Allenby (2010) 190 Cal.App.4th 616, 635-636 [prefiling permission not required where appellants are not acting as self-represented litigants actually or de facto, but are represented by able counsel as reflected by quality of appellate briefing].)

4

We reject all the Schmids’ arguments. They have shown no basis to disturb the trial court’s ruling.4 BACKGROUND

The Schmids, owners of rural land in Sonoma County (the County), filed this action in pro per against the County and Air Exchange Inc., challenging the County’s issuance of a permit allowing Air Exchange Inc. to install an exhaust ventilation system in a garage structure located on a neighboring parcel being used to store firetrucks and firefighting equipment for a local volunteer fire department. Already pending at the time they brought it were long-running, consolidated lawsuits the Schmids had filed against the County and the volunteer fire department, both challenging the County’s issuance of a permit allowing the volunteer fire department to use the garage for storing its vehicles and equipment.

The trial court stayed the action pending a determination of the other related, consolidated cases. It ruled that “[t]he entire basis of Plaintiffs’ claims against the County here rests on the issues which they already raised” in their pending lawsuit against the County (No. SCV-266225). The stay was lifted about a year and a half later, and then Air Exchange settled with the Schmids, agreeing never to install the challenged exhaust system, and a stipulated judgment to that effect was entered.

Subsequently, the County filed a motion to declare the Schmids vexatious litigants under section 391. The motion detailed numerous lawsuits the Schmids had filed in the last seven years (in both state and federal court), including 10 arising from their dissatisfaction with the

4 The County and the Schmids both filed motions asking us to take judicial notice of various materials, and we previously took those motions under submission. We now deny both requests on the ground that none of the materials are relevant to the bases upon which we render our decision.

5

volunteer fire department’s construction of the garage. Regarding that subject alone, the Schmids had sued the fire department and the County multiple times; third party vendors; and even a local fire protection district. In addition to those 10 cases, the motion identified four other cases the Schmids had brought and lost and then appealed and lost again (the County said one was outside the seven-year window but was still “illustrative of . . . the repetitive filings and appeals in constitutional claims that are determined to have no merit”).

The County asserted in its motion that many of these 14 lawsuits were repetitive, overlapping, duplicative, and unmeritorious. Most had been resolved against the Schmids (they lost in the trial court and then again on appeal), several were still pending and in none had the Schmids yet prevailed. As summarized in an attorney declaration filed with the motion, “[t]he Schmids rarely, if ever, accept an adverse ruling, always appealing a trial court’s decision to the appellate court. They often file in Federal Court yet pursue similar causes of action in State court after receiving an adverse decision in U.S. District Court and with the 9[th] Circuit Court of Appeals.”

The Schmids summarize none of this history. The County’s motion was supported by more than 350 pages of evidence. It includes two attorney declarations addressing the Schmids’ litigation history and 22 exhibits from court records that the trial court judicially noticed. According to an attorney declaration, some of the lawsuits had been filed through an Oregon attorney named J. Curtis Edmonson (i.e., counsel of record in this appeal), who appeared to be merely lending his name to pleadings given identical grammar, syntax, tone and content of pleadings filed under the attorney’s name and the many pleadings filed by Frear in the pro per cases.

6

The Schmids summarize none of this evidence. The motion was brought on three statutory grounds. It contended that the Schmids have commenced, prosecuted or maintained in pro per in the last seven-year period at least five cases that have been finally determined adversely to them, thereby satisfying the definition of a vexatious litigant under section 391, subdivision (b)(1), a provision we discuss more fully below. It also contended that the Schmids “continue to file frivolous and repetitious legal actions, motions and pleadings,” thereby satisfying the definition of a vexatious litigant under section 391, subdivision (b)(2) and (3).5 As to those latter grounds, the motion argued, “The Schmids have a significant history of instituting and maintaining frivolous and highly duplicative actions. They persist in repeatedly filing multiple versions of unmeritorious claims. They repeatedly appeal well-reasoned rulings by both State and Federal trial courts, only to lose on appeal. When they lose one case, they turn around and file another case, or multiple cases, concerning the same general issues. They ‘forum-shop’ in both State and Federal court. When they lose in one court, they file the same claims in the other court system. These repetitious

5 Section 391, subdivision (b)(2) defines a vexatious litigant as someone who “[a]fter a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.”

Section 391, subdivision (b)(3) applies to someone who “[i]n 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.”

7

lawsuits qualify the Schmids as vexatious litigants, independent of the number of adverse determinations in the past 7 years.”

After issuing a tentative ruling, the trial court heard oral argument at a hearing of which no appellate record has been made (the record on appeal lacks either a reporter’s transcript or a settled statement) and then granted the motion as to Frear and denied it as to Astrid, in a 14-page written ruling.6 Concerning Frear, the court’s analysis focused mostly on the definition of a vexatious litigant under section 391, subdivision (b)(1). The court expressly found that five of the 14 cases counted toward the tally of adverse determinations suffered by a pro per litigant, thereby satisfying the statutory requirements. It expressly found that six did not count: two were outside the requisite seven-year period and four were still pending. And although the court’s ruling could have been clearer, it also effectively found that in three other cases Frear did not appear in pro per because he was represented by Edmonson in those cases and there was insufficient evidence that Edmonson was being used as a mere mouthpiece for Schmid. In this regard, the court observed generally that in light of its finding that five cases counted, “the Court need not engage in speculation on whether Mr. Edmonson acted as a mere proxy for Frear Stephen Schmid’s claims. The Court notes substantial similarities between (for example) [Nos.] SCV-270568 and 19-CV-0883, but there is no evidence or argument displayed sufficient to show that it is Edmonson who derives his pleadings from Frear Stephen Schmid. The inverse appears equally likely without additional showing.”

6 The record also does not contain the reply memorandum of points and authorities the County filed in support of its motion on October 25, 2024.

8

The court ruled that it “does not generally find the relitigation of the same issues is applicable to the Plaintiffs,” which we construe as a ruling declining to find Frear a vexatious litigant under section 391, subdivision (b)(2). The court did not expressly address the County’s argument that Frear satisfies the alternative definition under subdivision (b)(3) as someone 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.”

The court entered an order declaring Frear a vexatious litigant and enjoining him 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”, and this timely appeal followed.

DISCUSSION

I.

Astrid’s Arguments

As noted, the trial court declined to find Astrid a vexatious litigant. It did, however, state that: “Subsequent to this order, should Astrid Schmid’s motion or papers appear to be the work of Frear Stephen Schmid, it will only be allowed if Plaintiff Frear substitutes in as counsel, as would be permissible as a member of the California Bar.”

Astrid now challenges this comment on several grounds. She argues there is no legal basis for the court imposing any such restriction on her (she says the court’s comment amounts to an order), it denies her due process of law because it issued without any notice or opportunity for her to be heard,

9

and the court’s comment is both unconstitutionally overbroad and unconstitutionally vague.

The record does not reflect that Astrid raised any of these issues below.

The court announced in its tentative ruling that it intended to include this language in its ruling and allowed the parties an opportunity to address the subject by contesting the tentative ruling, the matter was argued but we do not have a transcript, and the record does not contain any indication that Astrid objected to this aspect of the ruling, much less on any of the grounds she now asserts. Under these circumstances we cannot and will not consider any of these issues.

“[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] . . . ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court.’ . . . ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” ’ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ ” (Jameson v. Desta (2018) 5 Cal.5th 594 608-609.) A record is inadequate if an appellant “ ‘ “ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed.” ’ ” (Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 644; see, e.g., Maria P. v. Riles (1987) 43 Cal.3d 1281,

10

1295-1296 [where attorney fee hearing was unreported, record is inadequate and appeal “must be resolved against [appellants]”.)

That is true here. Without a record of the oral proceedings, we cannot tell if Astrid forfeited, waived or otherwise acquiesced in the very thing she now assigns as error (namely, a restriction on her ability to file papers drafted by her husband to the extent the court’s comment imposed one). She thus fails to show error by an adequate record. (See, e.g., In re Kathy P. (1979) 25 Cal.3d 91, 102 [appellant “has not met her burden of showing error by an adequate record” where hearing was unreported and record does not show whether appellant waived right to counsel and consented to informal hearing procedures]; In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 8-10 [where record does not show husband objected to exercise of personal jurisdiction, appellate court “ ‘must . . . presume that what occurred at that [unreported] hearing supports the judgment’ ” and thus presumes he consented to jurisdiction at unreported hearing].)

Relatedly, an appellant must affirmatively demonstrate that she preserved an issue for our review, including by citing the record showing exactly where her objection was made, or else explaining why the issue can be raised for the first time on appeal. When an appellant does neither, we may deem the issue forfeited. (See Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 798-802; accord, Colombo v. BRP US Inc. (2014) 230 Cal.App.4th 1442, 1478.) We do so here. Indeed, it is particularly appropriate to deem Astrid’s objections to the scope and language of the court’s ruling forfeited. We have no way of knowing whether the trial court might have narrowed or clarified its ruling had Astrid called to its attention the constitutional overbreadth and vagueness objections she now asserts.

11

Even if we construed the court’s cautionary comments as an order precluding Astrid from filing papers drafted by her husband, and even if the issue had not been forfeited, we perceive no error under state law.7 Frear is himself a vexatious litigant. Courts have the power to restrain someone who is a vexatious litigant from filing papers in the name of another person they are using as a strawman to advance their own interests (even if those interests are shared). (See Kinney, supra, 201 Cal.App.4th at pp. 959, 960- 961 [restraining attorney from filing any new litigation in his own name or in the name of client he ostensibly represented in litigation from which he stood to personally benefit; the attorney “is purporting to act as attorney for [client]. In reality, [client] is merely acting as a puppet or conduit for [attorney’s] abusive litigation practices”]; see also Hupp v. Solera Oak Valley Greens Assn. (2017) 12 Cal.App.5th 1300, 1313-1320 [court properly dismissed claims brought by mother of vexatious litigant seeking recovery on vexatious litigant’s behalf but not separate claims personal only to her even though vexatious litigant appears to have drafted his mother’s pleadings].) Astrid does not contend she asserts any causes of action that advance only her own interests, not Frear’s. Thus, what the court’s comment really is aimed at is restricting Frear’s abusive litigation activities undertaken to further his personal interests. Although nominally directed at Astrid, it is really directed at Frear. Hence, even if characterized as an injunction carrying all attendant potential penalties for its violation rather than merely as a cautionary warning, we perceive no error.

7 We refrain from commenting further on her constitutional arguments not to suggest they would have any potential viability had they been shown by an adequate record to have been preserved for appeal. We express no opinion on that subject.

12

The parties also disagree as to whether we even have appellate jurisdiction over Astrid’s issues, a question the opening brief does not meaningfully address and as to which the reply brief is silent. We need not resolve this, given that we have rejected her arguments on other grounds.8 II.

Frear’s Arguments

A. Statutory Overview and Standards Governing Our Review “ ‘The vexatious litigant statute (§ 391 et seq.) was enacted “ ‘to curb misuse of the court system’ ” by “ ‘persistent and obsessive’ litigants.” ’ ” (Deal, supra, 45 Cal.App.5th at p. 618.) The Legislature has equipped courts with several tools to do this. Generally stated, once someone has been adjudged a vexatious litigant under the statutory framework, a court may enter an order requiring the vexatious litigant to obtain leave of court before initiating any new litigation in pro per, as it did here (§ 391.7, subd. (a));

8 Astrid asserts the court’s ruling as to her is appealable as an injunction but cites no authority for the proposition, which is not self-evident. Unlike the prefiling order it adopted as to Frear, the trial court did not expressly order Astrid to do or refrain from doing anything; it merely suggested any papers submitted by her in the future that appeared to be the work of Frear would be filed only if he appeared as her counsel. The parties have not adequately briefed whether the court’s comments in this regard operate as an injunction (thereby making that aspect of the ruling appealable) but because Astrid’s arguments are easily dispensed with, we deem it expedient to treat her appeal as a petition for writ of mandate in the interest of efficiency rather than seek supplemental briefing and/or dismiss the appeal with her challenges unresolved. (See, e.g., Nixon v. AmeriHome Mortgage Co., LLC (2021) 67 Cal.App.5th 934, 940 [declining to decide appealability question and exercising discretion to treat appeal as a petition for writ of mandate “[i]n light of the uncertainty of our jurisdiction” on appeal “and the absence of any delay or prejudice our intervention at this stage would cause”]; Ayala-Ventura v. Superior Court of Fresno County (2026) 119 Cal.App.5th 241, 246 [same].)

13

leave to proceed will be granted upon a showing the litigation “has merit and has not been filed for the purposes of harassment or delay” (id., subd. (b)). In addition, upon a showing in pending litigation that there is no reasonable probability the plaintiff will prevail, a defendant may ask the court to require a vexatious litigant to post security in order to proceed, on pain of dismissal.9 (See §§ 391.1, subd. (a), 391.3, subd. (a), 391.4.)

A person may be declared a vexatious litigant on multiple grounds.

(See § 391, subd. (b).) At issue here is the definition of a vexatious litigant under subdivision (b)(1) of section 391. It states in relevant part that a vexatious litigant “means a person who . . . [i]n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person . . . .” (§ 391, subd. (b)(1).) The term “litigation,” for purposes of the entire vexatious litigant framework, “means any civil action or proceeding, commenced, maintained or pending in any state or federal court.” (Id., subd. (a).)

Our colleagues in Division Three recently summarized the law under subdivision (b)(1). “Section 391[, subdivision] (b)(1) defines a vexatious litigant as a self-represented person who has filed at least five qualifying litigations within the past seven years that were decided adversely to them. (§ 391[, subd.] (b)(1)(i).) ‘Litigation is defined as any “civil action or proceeding, commenced, maintained or pending in any state . . . court.” ’ [Citation.] This ‘includes an appeal or civil writ proceeding filed in an

9 In this case, in addition to requesting entry of a prefiling order, the County asked for an order requiring the Schmids to post security for this case, but it was denied because the case was still stayed as to the County and the County also had not presented any argument or evidence addressing whether the case has any merit. That ruling is not at issue on appeal.

14

appellate court.’ [Citation.] An action is ‘within the “ ‘immediately preceding seven-year period’ ” so long as it was filed or maintained during that period’ [citation], and the ‘period is measured from the date the motion or OSC is filed.’ [Citation.] The litigation is ‘finally determined adversely’ if the person does not win and ‘avenues for direct review (appeal) have been exhausted or the time for appeal has expired.’ ” (In re Marriage of Kouvabina & Veltman (2025) 115 Cal.App.5th 293, 298.)

On appeal, Frear challenges the trial court’s reliance on three of the five qualifying cases claiming they don’t satisfy the statutory standard. In addition, he challenges the court’s determination that he is a vexatious litigant on various constitutional grounds.

“ ‘A [trial] court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] We uphold the court’s ruling if it is supported by substantial evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment.’ ” (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 407; accord, Deal, supra, 45 Cal.App.5th at p. 621.)

We also presume that the trial court’s ruling is correct, and it is Frear’s burden to affirmatively demonstrate that the trial court erred. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “ ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Ibid.) The burden of demonstrating error applies equally to an appellant challenging a determination they are a vexatious litigant. (See Deal, supra, 45 Cal.App.5th at p. 622.)

To demonstrate error, “ ‘an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.’ ” (United Grand Corp. v. Malibu Hillbillies, LLC (2019)

15

36 Cal.App.5th 142, 153 (United Grand).) Appellate courts will not consider claims of error when they are too conclusory and undeveloped—such as when they are supported by no discussion of any relevant legal authority (see, e.g., id. at pp. 160-161) or no analysis of how the law, if cited, actually applies (see, e.g., id. at pp. 162, 163 [deeming issues forfeited because appellant “cites one case . . . but then fails to ‘explain how it applies in his case’ ”]). When an appellant doesn’t explain the case law he cites, we will not analyze those cases ourselves to figure out how, if at all, they apply so as to develop an argument for him. (See, e.g., Doe v. McLaughlin (2022) 83 Cal.App.5th 640, 654 [disregarding argument where appellant cites legal authority but “does not explain how that authority applies here”]; Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078 [disregarding argument where party “fails to provide this court with its own analysis of [cited case] or any other relevant authority, as applied to the facts in this case”].) “Mere suggestions of error without supporting argument or authority other than general abstract principles do not properly present grounds for appellate review.” (Department of Alcoholic Beverage Control, at p. 1078.)

With these principles in mind, we turn to Frear’s contentions on appeal.

B. The Challenged Cases First, we consider his arguments concerning those cases he asserts were wrongly counted toward the tally of five adverse determinations under section 391, subdivision (b)(1).

1. Schmid et al. v. City and County of San Francisco et al., No CGC-18-571283

In 2018, Frear and San Francisco resident Patricia Briggs brought suit to challenge the City’s decision to remove a controversial monument in San

16

Francisco’s Civic Center, the Pioneer Monument. Alleging their shared interests as local taxpayers, residents or former residents of the City and “as citizens of California,” they purported to bring suit “as members of the general public and as individual taxpaying citizens” to preserve a local historic resource. A demurrer was sustained without leave to amend and a judgment of dismissal was entered.

Frear not only was a party in the case, nominally represented by counsel, he also was attorney of record for his co-plaintiff. Hence, the trial court in this case ruled that he was effectively litigating in pro per on her behalf: it ruled, “This matter particularly is muddled by the additional fact that Frear Stephen Schmid, while represented by counsel, appeared as counsel himself for his co-litigant. This matter appears questionable, as Frear Stephen Schmid availed himself of his rights as an attorney licensed in this state to appear on behalf of another party, advancing his own interest while avoiding pro per status. . . . [T]his is sufficient to find Plaintiff Frear Stephen Schmid was a litigant in this action.” (Italics added.)

Frear argues the court erred in counting this as a qualifying case because he didn’t file or maintain the action in pro per.10 We do not agree, and extended discussion is unnecessary.

Courts don’t elevate form over substance when determining whether someone is a vexatious litigant. An attorney of record may be found to be the actual litigant where the client is a puppet or conduit being used to advance the attorney’s own interests. (See Kinney, supra, 201 Cal.App.4th at pp. 958- 959.)

He also argues there was no evidence the case was frivolous or 10

brought in bad faith; we address that subject below.

17

Frear acknowledges this authority but contends “there is no evidence Schmid used Ms. Briggs as a puppet or conduit while he acted as her attorney.” This ignores the declaration he filed in the trial court. According to that declaration, two of the four causes of action were brought in both parties’ names (for “violation of California Civil Rights” and Declaratory Relief); he was his co-plaintiff’s attorney of record for those causes of action and he himself was represented by ostensibly separate counsel (Edmonson). That highly unorthodox way of setting up the representation alone screams “conduit.” In addition, his co-plaintiff alleged a taxpayer claim under Code of Civil Procedure section 526a; he was her attorney of record on that cause of action.11 What was the point but to allow Frear to control the litigation (for example, why would his attorney of record, Edmonson, not represent both plaintiffs on the two joint causes of action if not the entire lawsuit? And why does Frear need to appear as counsel at all? Conversely, why separate counsel at all?) This unusual arrangement is substantial evidence that Frear’s representation of his co-plaintiff in that case was just a ruse, and that he himself was effectively the client, and he presents no colorable argument to the contrary. Indeed, this case presents an even stronger basis to infer that the nominal client was a mere conduit for the vexatious litigant than in Kinney, because here the vexatious litigant participated in the case as both attorney of record and as a party. Because there is substantial evidence Frear’s client was his conduit, the trial court did not abuse its discretion in counting this case.

11 Represented by counsel, Frear also asserted “a cause of action for writ of mandamus” in his name alone.

18

2. The Appeal in Anello Next, Frear challenges the court’s reliance on his unsuccessful appeal of a judgment granting a civil restraining order against him in a case in which he was the defendant, Anello v. Schmid (June 11, 2021, A160440, A160540) [nonpub.]). Citing John v. Superior Court (2016) 63 Cal.4th 91 (John) and Shalant v. Girardi (2011) 51 Cal.4th 1164 (Shalant), Frear asserts that “[a]s a matter of law, the appeal from a trial court determination where Schmid was not the plaintiff does not constitute an instance of him ‘maintaining litigation.’ ” By this, we take him to mean that such an appeal cannot be counted as litigation that was “commenced, prosecuted, or maintained in propria persona” even if it was “finally determined adversely to the person” initiating the appeal (§ 391, subd. (b)(1)).

This argument, encompassing all of one page, is too undeveloped for us to consider. Neither John nor Shalant considers what constitutes qualifying litigation for purposes of determining under section 391 whether someone is a vexatious litigant. They address the scope and application of prefiling orders entered under section 391.7, the statute that authorizes a prefiling order barring someone who has been adjudged a vexatious litigant from “filing any new litigation” in pro per without leave of court (id., subd. (a)). Shalant held that a lawsuit filed by counsel on behalf of a vexatious litigant who was subject to a prefiling order was not subject to dismissal even if counsel withdrew and the vexatious litigant continued to pursue the litigation in pro per. (See Shalant, supra, 51 Cal.4th at p. 1168.) John held that prefiling orders entered under section 391.7 do not prevent self-represented defendants from appealing from an adverse judgment without leave of court. (John, supra, 63 Cal.4th at p. 93.)

Frear does not meaningfully discuss or analyze either of those cases or the statutory language at issue here (i.e., section 391, subdivision (b)(1)). Nor

19

does he discuss or apply any principles of statutory interpretation to persuade us that the definition of “vexatious litigant” under that provision cannot include an unsuccessful appeal by a defendant.

Equally problematic is that Frear fails to acknowledge (much less discuss) authorities directly contrary to his position. Our colleagues in Division Three recently examined this question and said this: “We cannot find anything in [John] holding a defendant’s appeal cannot constitute ‘litigation’ under section 391[, subdivision] (b)(1). [Appellant’s] assertion otherwise is unfounded. [¶] Nor can we find anything in the text of section 391[, subdivision] (b)(1) or in case law—and [appellant] does not draw our attention to anything—indicating a defendant’s appeal does not constitute ‘litigation’ for purposes of section 391[, subdivision] (b)(1).” (In re Marriage of Kouvabina & Veltman, supra, 115 Cal.App.5th at p. 300; see also ibid. [“Nothing suggests a defendant’s appeal is exempted from this definition”]; see also In re R.H. (2009) 170 Cal.App.4th 678, 693-696 [no error in counting appeals by defendant], disapproved on other grounds in John, supra, 63 Cal.4th at p. 99.) A proper appellate argument would acknowledge and discuss these authorities.

In view of the inadequate briefing, we will not reach out ourselves to analyze and consider whether a defendant’s appeal may qualify. The question has not been adequately briefed, and we deem it forfeited for lack of a cognizable, developed legal argument. (See Dilbert v. Newsom (2024) 101 Cal.App.5th 317, 323 [“each point must be supported ‘by argument and, if possible, by citation to authority’ ”; this “requires more than simply stating a bare assertion that the judgment ‘is erroneous and leaving it to the appellate court to figure out why’ ”; “ ‘it is not the appellate court’s role to construct theories or arguments that would undermine the judgment and defeat the

20

presumption of correctness’ ”; “ ‘self-represented parties are “ ‘held to the same restrictive procedural rules as an attorney’ ” ’ ”]; People v. Stanley (1995) 10 Cal.4th 764, 793 [failure to provide legal argument with citation of authorities on point made may be treated as waived and not considered].)

3. Schmid v. County of Sonoma No. SCV-270771 Next, Frear argues the trial court erred by counting Schmid v. County of Sonoma No. SCV-270771, because that case was dismissed without prejudice after the defendants dropped all efforts to continue with the actions that he challenged, thereby “achiev[ing] [his] desired litigation results” and rendering the case moot. He asserts that a dismissal without prejudice for mootness after a pro per plaintiff has achieved his litigation objectives is not a litigation “finally determined adversely to the person” under section 391, subdivision (b).

He cites no authority supporting this proposition. None of the cases he relies on construe or interpret section 391.12 And the trial court cited authority recognizing that “[a] litigation is finally determined adversely to a plaintiff if he does not win the action or proceeding he began, including cases that are voluntarily dismissed by a plaintiff.” (Garcia v. Lacey, supra, 231 Cal.App.4th at pp. 406-407.) Frear says Garcia is wrong, but it is not the

12 See Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1207 (dismissal for mootness has no preclusive effect under res judicata because it is not on the merits); Wilson v. Bittick (1965) 63 Cal.2d 30, 35 (affirming summary judgment of affirmative defense of “vexatious litigation,” holding litigant had not acted vexatiously by dismissing prior suit without prejudice after failing to join an indispensable party and then refiling); Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758 (holds there is no right to appeal from clerk’s entry of voluntary dismissal, which is ministerial not judicial act); Oprian v. Goldrich, Kest & Associates (1990) 220 Cal.App.3d 337 (addresses what constitutes a “favorable termination” for purposes of malicious prosecution).

21

only such case. Our colleagues in Division Three have also recognized, “[A] dismissal—voluntary or not—constitutes an adverse determination.” (Karnazes v. The Lauriedale Homeowners Assn. (2023) 96 Cal.App.5th 275, 281.) They explained, moreover, “it is the loss that matters” under section 391 when a case is dismissed, “not whether a litigant is satisfied with the result.” (Ibid.) That Frear says he dismissed this case because he had achieved his desired results is thus irrelevant.

Frear cites no authority construing the statute in a manner that supports his interpretation. Nor does he engage in any attempt at statutory interpretation to persuade us that dismissals for mootness categorically do not count in the tally of qualifying adverse determinations. (See Karnazes, supra, 96 Cal.App.5th at pp. 278, 279, 281 [nine appeals were determined adversely to litigant including one dismissed for mootness; each “ ‘ represents a final determination of a litigation in a manner that was adverse to [her]’ under the [vexatious litigant] statute”].) Accordingly, he has failed to show error.

Not only is his argument legally insufficient, it is also refuted by the record. The trial court rejected his mootness argument on the facts in its vexatious litigant ruling, after having personally presided over the case in question. It observed: “Plaintiffs may not pepper governmental entitles with meritless cases and dismiss them in an effort to avoid adverse determinations. In SCV-270771, that appears to be exactly what occurred. The trial court (which was this judicial officer) sustained the demurrer of the defendants, including the County, with leave to amend. Plaintiffs amended their complaint but subsequently dismissed after defendants filed subsequent demurrers. Plaintiffs do not successfully argue mootness where their claims were already found lacking. The posture of the case at the time of dismissal

22

indicates that it lacked merit, even if the action became moot. To hold otherwise would encourage browbeating through meritless litigation.” (Italics added.) Frear does not address this finding and has forfeited any argument that it is factually unsupported or legally insufficient by itself to support the court’s ruling. (See Cruz v. Tapestry, Inc. (2025) 113 Cal.App.5th 943, 953– 954 [“ ‘ “ ‘Issues not raised in an appellant’s brief are deemed waived or abandoned’ ” ’ ”].) We thus affirm the court’s ruling on this alternative, independent ground as well.

C. Constitutional Issues Next, we come to Frear’s constitutional arguments—and again, there are many.

Regrettably, they are rambling and unfocused. Many are not clearly identified in an argument heading of his brief as they should be (see Herrera v. Doctors Medical Center of Modesto (2021) 67 Cal.App.5th 538, 547; Tsakopoulos Investments, LLC v. County of Sacramento (2023) 95 Cal.App.5th 280, 309-310), and some are framed with (somewhat) greater specificity only in the reply brief (see Bitner v. Department of Corrections & Rehabilitation (2023) 87 Cal.App.5th 1048, 1065, fn. 3; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852, fn. 10). All of this makes our work needlessly harder. “It is not our responsibility to act as counsel for [an appellant] and attempt to arrange his arguments coherently.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 181.) Under the foregoing authorities, we could deem most of his constitutional arguments forfeited on these grounds. Nevertheless, we will address those issues that we can discern in Frear’s unsystematic briefing; any other arguments not discussed in this opinion are deemed forfeited on these grounds. (See United Grand, supra, 36 Cal.App.5th at p. 153.)

23

As best we understand Frear, he contends: (1) The prefiling order violates his constitutional right of access to the courts, under both the federal and state constitutions, because it is not supported by evidence that the qualifying lawsuits were frivolous, truly harassing or burdensome; (2) the prefiling order violates his First Amendment rights because it is a prior restraint on his speech yet does not pass muster under the constitutional standards for imposing a prior restraint; (3) the prefiling order violates his First Amendment right to free speech because it is not the least restrictive means of achieving its desired objective of controlling his abusive litigation; (4) the prefiling order violates his First Amendment right to free speech because it restricts his right to “core” political speech criticizing or challenging governmental activities and thus is viewpoint discriminatory and yet, again, does not satisfy the constitutional standard for imposing a prior restraint on his speech; (5) the prefiling order violates his federal constitutional right to equal protection of the law, because it subjects him to a restriction on his access to the courts that does not apply to parties represented by counsel or to other attorneys who represent a client; and (6) because all five of the qualifying lawsuits were actions brought against governmental entities, they are absolutely privileged under the First Amendment and thus cannot serve as the basis for a determination he is a vexatious litigant.13

13 In his reply brief, he asserts another argument: the prefiling order “punishes” him for employing lawful means of seeking redress for grievances over governmental actions. This argument does not clearly pertain to any of the constitutional arguments tendered in his opening brief. It appears to be a new issue, and we disregard it. (See Bitner v. Department of Corrections & Rehabilitation, supra, 87 Cal.App.5th at p. 1065, fn. 3 [“ ‘As a general rule, points not addressed until a reply brief will not be considered unless good

24

These are serious claims. Made in all of about 13 pages of the opening brief which, on average, is about two pages per constitutional issue. This calls to mind some of the most basic advice for litigants on appeal: selectivity in choosing appellate issues is critical. As a leading commentator has put it, “[t]hink carefully before raising multiple issues on appeal. ‘More’ is not necessarily ‘better.’ ” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2026) ¶ 9:19, pp. 5-6.) As we have explained, an appellant must proffer a cogent legal argument, supported by legal authority and analysis to frame an issue for our review. A “kitchen sink” approach to appellate advocacy is rarely effective to state a cognizable appellate argument. And it is ineffective here.

California courts have repeatedly upheld the vexatious litigant framework against constitutional attack. (See Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 786; Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1170; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 541; Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43 (Wolfgram); Muller v. Tanner (1969) 2 Cal.App.3d 445, 450-454; Taliaferro v. Hoogs (1965) 236 Cal.App.2d 521 (Taliaferro); accord, Karnazes v. The Lauriedale Homeowners Assn., supra, 96 Cal.App.5th at p. 280 [“ ‘California’s vexatious litigant statutes are constitutional’ ”]; see also In re Whitaker (1992) 6 Cal.App.4th 54, 56 [“[appellant] is again contending that the vexatious litigant statutes are unconstitutional, an argument we expressly rejected in one of his cases only last year. This identical argument has also been rejected by other divisions of this court in cases in which he was a party. By coming forward again with this argument, [appellant] is

reason is shown for failing to address them earlier’ ”]; accord, United Grand, supra, 36 Cal.App.5th at p. 158.)

25

engaging in frivolous conduct”].) So too has the Ninth Circuit. (See Pierce v. Cantil-Sakauye (9th Cir. 2016) 628 Fed.Appx. 548 (Pierce); Wolfe v. George (9th Cir. 2007) 486 F.3d 1120 (Wolfe).)

We refrain from exhaustively surveying that body of constitutional law or delving into any particular case in any depth. But for a single appellate decision in this area (Wolfgram, supra, 53 Cal.App.4th 43), Frear has not cited, discussed or analyzed any of it.

For the most part, Frear’s constitutional arguments are based on assertions of broad principles of constitutional law drawn from cases involving different factual situations than the one presented here, and he makes no attempt to show that the actual questions presented in any of the cases he cites are in any way analogous to the imposition of a vexatious litigant prefiling order.

In short, and as we will further explain, most of his constitutional arguments are inadequate and too undeveloped for us to consider. (See, e.g., Wolfgram, supra, 53 Cal.App.4th at p. 61, fn. 11 [deeming constitutional challenge to vexatious litigant statutory scheme waived “for lack of argument heading or analysis”].) As this court said decades ago when upholding the constitutionality of the vexatious litigant statutes, “we must approach this question with all of the usual presumptions and intendments in favor of constitutionality,” and “[a]ll doubts must be resolved in favor of the statute.” (Taliaferro, supra, 236 Cal.App.2d at p. 525.) Frear has not overcome that presumption.

Given the extremely cursory manner in which Frear addresses each constitutional point, we will do the same.

26

1. Evidence of Frivolousness, Harassment or Burden As specified more clearly in his reply brief, Frear asserts the prefiling order violates his constitutional right of access to the courts, under both the federal and state constitutions, because it is not supported by evidence that the qualifying lawsuits were frivolous, truly harassing or burdensome. We summarily reject this argument.

Frear has not summarized any of the factual background or circumstances of those lawsuits, and so the entire factual predicate of this argument—i.e., the absence of substantial evidence they were harassing or burdensome—is forfeited. (See, e.g., Slone v. El Centro Regional Medical Center (2024) 106 Cal.App.5th 1160, 1173-1175 [holding substantial evidence arguments forfeited due to incomplete, one-sided discussion of evidence].) “In every appeal, the appellant has the duty to fairly summarize all of the facts in the light most favorable to the judgment.” (Id. at p. 1173.) To do this, “appellants cannot recite only evidence in their favor, but must ‘ “set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived.” ’ ” (Ibid.) Frear has not done this.

We could stop there, but this argument is forfeited not only factually but also legally. Frear’s argument that a showing of frivolousness is constitutionally required is directly refuted by Wolfgram, supra, 53 Cal.App.4th 43, a case Frear merely cites but does not discuss or analyze. Wolfgram held the statute does not impermissibly chill the right to petition or penalize the filing of unsuccessful colorable suits. (Id. at p. 59.) It explained the vexatious litigant statute reflects the understanding that a pro per litigant who has filed five unmeritorious, though potentially colorable lawsuits, “has been using the court system inappropriately and will continue

27

to do so.” (Id. at p. 57.) “The rationale is that there is a limit to how many causes of action an individual is likely to accrue.” (Id. at p. 49.) Wolfgram specifically held that “[t]he fact that the statute does not include a requirement that the five losing suits be frivolous does not render it unconstitutional.” (Id. at p. 58.)

Without discussing Wolfgram or examining its analysis (or even acknowledging its holding), Frear asks us to re-examine the decision in light of more recent federal case law. He mentions in passing two United States Supreme Court cases that he implies have abrogated Wolfgram but does not discuss or analyze those cases either. (See Christopher v. Harbury (2002) 536 U.S. 403 [addressing elements of cause of action for unconstitutional denial of access to courts]; BE & K Const. Co. v. NLRB (2002) 536 U.S. 516 [First Amendment protects unsuccessful but objectively reasonable lawsuit from liability under federal labor law]; but see BE & K Const. Co. at p. 537 [“nothing in our holding today should be read to question the validity of common litigation sanctions imposed by courts themselves—such as those authorized under Rule 11 of the Federal Rules of Civil Procedure—or the validity of statutory provisions that merely authorize the imposition of attorney’s fees on a losing plaintiff”].)

He also asserts California should follow the federal standard for vexatious litigants that the Ninth Circuit has adopted (see Ringgold- Lockhart v. County of Los Angeles (9th Cir. 2014) 761 F.3d 1057, 1062) but does not explain why that standard is constitutionally required nor how it renders California’s framework unconstitutional. This problem is all the more glaring because, as we have noted, the Ninth Circuit has upheld the constitutionality of California’s vexatious litigant framework. (See Pierce, supra, 628 Fed.Appx. 548 [applying heightened scrutiny]; Wolfe, supra,

28

486 F.3d 1120.) Its most recent opinion concluded, “California has ‘sufficiently important’ interests [citation] in ensuring the orderly resolution of disputes and protecting [litigants] and courts from vexatious litigants” and the statutory framework is “ ‘closely tailored,’ [citation] to advance these interests.” (Pierce, at p. 549.)

Frear’s slap-dash treatment of this constitutional question is not sufficient to state a cognizable issue on appeal. We will not and do not consider it on the merits.

2. Prior Restraint

The same is true of Frear’s next argument: that the prefiling order violates the First Amendment because it is a prior restraint on his speech yet does not pass muster under the constitutional standards for imposing a prior restraint.

Wolfgram rejected this argument too and held that a prefiling order imposed on a vexatious litigant isn’t a prior restraint. (See Wolfgram, supra, 53 Cal.App.2d at pp. 59-60.) It explained, “The prefiling order component of the vexatious litigant statute is a necessary method of curbing those for whom litigation has become a game,” and is only a “partial restriction on the ability to file suit” that has never “been held to be a ‘prior restraint’ ” requiring a showing of clear and present danger and concomitant procedural safeguards.” (Id. at p. 60.) It explained, rather, that “[t]o the extent it keeps vexatious litigants from clogging courts, it is closer to ‘licensing or permit systems which are administered pursuant to narrowly drawn, reasonable and definite standards’ which represent ‘government’s only practical means of managing competing uses of public facilities[.]’ [Citation.] When a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter.” (Ibid.; see also Luckett v. Panos (2008) 161 Cal.App.4th 77, 81 (Luckett)

29

[Wolfgram “squarely held that the operation of California’s vexatious litigant statutes [does] not offend the right to petition—basically because a vexatious litigant still retains the right to bring lawsuits even after a vexatious litigant determination” and “explained that the vexatious litigant statutes are narrowly drawn and reasonable in promoting the conservation of public judicial resources. [Citation.] Being narrowly drawn, California’s vexatious litigant statutes allow a vexatious litigant to continue to file lawsuits”].) To the extent Frear is suggesting Wolfgram was wrong on this point too, he has failed to say so expressly much less present a coherent, developed legal argument explaining why.

More generally (and Wolfgram notwithstanding), Frear also fails to explain how a prefiling order imposed on a vexatious litigant is a prior restraint. Generally stated, the vice of a prior restraint is that it enjoins expressive or petitioning activity before any determination that the activity may be lawfully regulated notwithstanding the First Amendment. (See generally Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1148 [holding that permanent injunction barring repetition of statements found at trial to be defamatory is not a prior restraint]; see also California Chamber of Commerce v. Council for Education and Research on Toxics (9th Cir. 2022) 29 F.4th 468, 481-482 [where plaintiff established probability of proving that litigation to enforce consumer labeling law is unconstitutional, preliminary injunction enjoining such litigation “is not an unconstitutional or otherwise impermissible prior restraint”].) Even the authority Frear cites (in all of one sentence) draws this distinction. (See Alexander v. United States (1993) 509 U.S. 544, 551 [distinguishing between prior restraint and punishment for past criminal conduct; “[t]he constitutional infirmity in nearly all of our prior restraint cases involving obscene material . . . was that

30

the Government had seized or otherwise restrained materials suspected of being obscene without a prior judicial determination that they were in fact so”].) Frear does not meaningfully address the doctrine of prior restraint other than in extremely general terms, and in so doing fails to explain how a prefiling order entered after a pro per litigant has been judicially determined to have repeatedly abused the court system in one or more ways specified by section 391 constitutes a prohibited prior restraint. (See also California Chamber of Commerce, at p. 481, fn. 17 [“enjoining prospective lawsuits does not per se violate the First Amendment”].)

In short, his prior restraint argument is conclusory, undeveloped and so superficial that it defies analysis.

In his reply brief, Frear says the prefiling order is a prior restraint because it prevents him from “exercising [his] First Amendment right[] to communicate at the very least for the time period it takes for [him] to seek leave of court to file or pursue an action.” By raising this point in his reply brief he has deprived the County of a chance to respond and therefore has waived it. (See LAOSD Asbestos Cases (2026) 118 Cal.App.5th 1041, 1060- 1061.) And waiver notwithstanding, he cites no authority supporting that premise, which is by no means self-evident and, if anything, wrong. Frear is free to file any lawsuit he wishes as long as he is represented by counsel, and even under the prefiling order he has the right to go to court and communicate with a judge concerning any lawsuit he wishes to bring in pro per, in an effort to persuade the judge to allow him to proceed with it. He need only show that such a lawsuit has merit and is not being filed for an improper purpose. (See § 391.7, subd. (b).) The statute thus does not deprive him of the right to petition the court. Indeed, federal case law he cites in his reply brief that he portrays as somehow favorable to his position upheld the

31

constitutionality of a prefiling order entered in federal court. (See Pavilonis v. King (1st Cir. 1980) 626 F.2d 1075, 1078 [upholding prefiling order imposed on vexatious litigant under federal All Writs Act; “[W]e reject [appellant’s] argument that enjoining litigation is unconstitutional”].)

Finally, even if Frear had presented a developed, cognizable legal argument that this limited burden constitutes a prior restraint (he hasn’t), he cites no principle of constitutional law suggesting that it is an unlawful one: i.e., that it is a constitutional burden so weighty that it trumps the state’s interest in managing abuses of its courts by vexatious litigants.14 He doesn’t even discuss the countervailing interests involved. That is yet another omission in his highly superficial, undeveloped treatment of this question.

Simply put, here again, we will not decide the merits of whether the prefiling order imposed on Frear constitutes an unconstitutional, impermissible prior restraint because Frear has not adequately briefed that question. It is forfeited.

3. Overbreadth

Frear asserts the prefiling order violates his First Amendment right to free speech because it is not the least restrictive means of achieving its desired objective of controlling his abusive litigation. We summarily reject

14 The only case he cites, Roman Catholic Diocese of Brooklyn v. Cuomo (2020) 592 U.S. 14, in no way suggest this. It is a per curiam opinion issuing an emergency injunction pending appeal of an executive order promulgated during the COVID pandemic that imposed limits on in-person gatherings for religious ceremonies. The Supreme Court enjoined it from taking effect during appeals to the Second Circuit based on a strong showing of probability of success that the regulation violated the free exercise clause and the irreparable harm it would cause to the great number of people who would be denied the ability to attend in-person services. It is irrelevant.

32

this argument. It too is undeveloped and cites no relevant supporting legal authority.

California courts have held that the vexatious litigant framework is not constitutionally overbroad, but Frear neither cites nor discusses any of those cases. (See Kobayashi, supra, 175 Cal.App.4th at p. 541 [“California’s vexatious litigant statutes are constitutional because they allow vexatious litigants to keep filing lawsuits; the statutes are narrowly drawn so that vexatious litigants simply must comply with reasonable limitations, such as obtaining a prefiling order”]; see also Wolfgram, supra, 53 Cal.App.4th at p. 60; Luckett, supra, 161 Cal.App.4th at pp. 80-81.)

So too has the Ninth Circuit, again in decisions Frear has not cited. It has said California’s vexatious litigant framework “is not overbroad, because there is no constitutional right to file frivolous litigation. ‘Just as false statements are not immunized by the First Amendment right to freedom of speech, . . . baseless litigation is not immunized by the First Amendment right to petition.’ Under the California statute, a vexatious litigant may file potentially meritorious claims not intended solely to harass or delay, so the courthouse doors are not closed to him.” (Wolfe, supra, 486 F.3d at p. 1125, fns. omitted; see also Pierce, supra, 628 Fed.Appx. at p. 549 [vexatious litigant statute withstands strict scrutiny constitutional review; narrowly tailored because it “calls for an individualized determination that a litigant is vexatious based on specific instances of harassing or frivolous litigation tactics”].)

Acknowledging none of this legal authority, Frear says that there are less restrictive means of curtailing his abusive litigation given his status as a licensed member of the California bar which “subjects him to the applicable rules and ethical considerations and the oversight of the court . . . and . . . the

33

California State Bar.” We do not agree. Although the conduct of licensed members of the State Bar can be policed through enforcement of the ethical rules, their conduct also can be policed through measures equally applicable to pro per litigants who are nonlawyers, such as through the imposition of judicial sanctions; yet, the availability of sanctions to curb litigation abuse has not led courts to hold the vexatious litigant remedies unconstitutionally overbroad. What is more, whatever theoretical constraints the threat of State Bar discipline and/or judicial sanctions may pose to Frear in his capacity as a licensed member of the State Bar, they have proved ineffective in curbing his torrent of unsuccessful personal litigation.15 Frear also asserts the prefiling order is not narrowly tailored because “the injunction is for life, unless he can convince a judge to modify it.” Again, this point is directly answered by California case law he has not cited. It explains, “[T]here is nothing in the Wolfgram analysis that suggests any constitutional problem with a vexatious litigant determination being permanent. If the vexatious litigant is still being afforded his or her right to petition in the immediate aftermath of a vexatious litigant determination and imposition of a prefiling order, he or she necessarily will retain those same constitutional rights for the indefinite future thereafter. The vexatious litigant status simply subjects the person in that category to the possibility of a reasonable restriction on his or her right to sue in propria persona, namely

15 So too have they proved ineffective in deterring him and/or his appellate counsel of record from burdening this court in this appeal with pages and pages of unsupported arguments that barely skate the surface of serious charges of error and constitutional infirmity. His counsel is ethically bound to disclose to this court legal authority from California “known . . . to be directly adverse” to Frear’s position (Rules Prof. Conduct., rule 3.3(a)(2)), and yet time and again has failed to do so.

34

the possibility of a bond requirement.” (Luckett, supra, 161 Cal.App.4th at p. 82.)

4. Viewpoint Discrimination Next, Frear argues the prefiling order violates his First Amendment right to free speech because it restricts his right to “core” political speech criticizing or challenging governmental activities and thus is viewpoint discriminatory but, yet again, does not satisfy the constitutional standard for imposing a prior restraint on his speech. We summarily reject this convoluted argument, one we do not even really understand.

The prefiling order is facially neutral. It applies across the board to all manner of civil litigation, without distinction. Frear’s position appears to boil down to a complaint that “the trial court’s motivation behind the subject order was not content agnostic but rather was intended to suppress and be discriminatory against [Frear’s] speech challenging government activities.” (Bolding omitted.) But from our reading of the record, all that happened is that most if not all the 14 lawsuits identified in the County’s vexatious litigant motion, including those that counted in the tally of adverse determinations, were lawsuits Frear filed against governmental entities. Frear points to no lawsuit he has ever filed pro per against a private party that did not also name or involve a governmental entity as a defendant. That doesn’t make the resulting prefiling order content discriminatory; it makes Frear a vexatious litigant with a particular penchant for suing public entities.

5. Equal Protection

Next is Frear’s argument that the prefiling order violates his federal constitutional right to equal protection of the law, because it subjects him to a restriction on his access to the courts that does not apply to parties

35

represented by counsel or to other attorneys who represent a client. The argument rests on a confusing jumble of First Amendment jurisprudence and equal protection principles. To the extent this argument is intended as a stand-alone First Amendment argument, we deem it forfeited for lack of an intelligible legal argument captioned under a separate argument heading. And he has also failed to present a cognizable legal argument that the prefiling order violates equal protection.

This court has held the statutory framework does not unconstitutionally discriminate against pro per litigants (Taliaferro, supra, 236 Cal.App.2d at p. 527) and our Supreme Court has held it doesn’t discriminate against litigants of “ ‘modest means’ ” (Moran v. Murtaugh Miller Meyer & Nelson L.L.P., supra, 40 Cal.4th at p. 786; see also Muller v. Tanner, supra, 2 Cal.App.3d at p. 453 [“the classification of persons to whom the [vexatious litigant] statute applies, and the terms imposed are reasonable”].) Frear does not acknowledge any of this authority.

The Ninth Circuit also has upheld the vexatious litigant framework against equal protection challenge. (Wolfe, supra, 486 F.3d at pp. 1126-1127.) It explained: “Frequent pro se litigants are not a suspect class meriting strict scrutiny. A state can rationally distinguish litigants who sue and lose often, sue the same people for the same thing after they have lost, and so on, from other litigants. When no bond is required, the California prefiling order does little more than require sua sponte review of a vexatious litigant’s complaint to see whether it states a claim before imposing the burden of litigation on a defendant. The defendant could move to dismiss for the same reason, so the statute is not a substantial or irrational bar to access.” (Ibid., fns. omitted.)

Frear does not cite or discuss any of this authority much less articulate any persuasive reason to depart from it. A proper, cognizable appellate

36

argument would do both. Analytically, Frear does not even address what level of constitutional scrutiny is required to evaluate the prefiling order’s constitutionality under equal protection principles. His argument is thus too undeveloped for us to consider. It too is forfeited.

6. Privilege To Sue Public Entities and Public Figures Finally, Frear argues the following in all of three sentences: “For the reasons set forth above about the First Amendment protection, the actions against government entities and its agents are privileged under the First Amendment and thus cannot count towards the requisite five final adverse determination. See New York Times v. Sullivan, 376 U. S. 254, 270. Just as the First Amendment provides privilege for libelous or slanderous speech (id.), it likewise provides [Frear] protection from his litigation against the government and its agents or public figures or regarding public matters from being counted as an adverse final decision.” On that basis, he asserts that none of the five lawsuits found to qualify count, because they were all actions brought against governmental entities or a “public figure.”

We have searched the preceding 49 pages of his opening brief in vain to find “the reasons set forth above about the First Amendment protection” that support this sweeping legal contention. We can’t find them. Nor are they to be found in Frear’s bare, unexplained citation to New York Times Co. v. Sullivan, supra, 376 U.S. 254, a seminal First Amendment decision rendered more than 60 years ago in the area of defamation law. A proper appellate argument would explain the reasoning of that decision; the extent to which its principles have been expanded and/or limited to other contexts in the course of the last 60 years; and why the interests at stake in imposing a damages award for defamation are comparable to the interests at stake in adjudging someone a vexatious litigant.

37

This argument is too undeveloped for us to consider. It too is forfeited.

DISPOSITION

The order is affirmed. Construing Astrid’s appeal as a petition for writ of mandamus, the petition is denied.

38

STEWART, P. J.

We concur.

RICHMAN, J.

MILLER, J.

Schmid et al. v. County of Sonoma (A172089)