Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC289937, Mary Thornton House, Judge.
Law Office of Ephraim O. Obi and Ephraim O. Obi for Plaintiffs and Appellants, Tom Hall and Yuki Kobayashi.
Mark Foster, in pro. per., for Defendant and Respondent Mark Foster.
PERLUSS, P. J.
Ten years ago Mark Foster had the misfortune of subleasing an apartment from Yuki Kobayashi. Since then, Kobayashi has filed multiple meritless lawsuits against Foster and his former landlady Fumi Kiyan. In this action, the third of four naming Foster personally as a defendant, Kobayashi and his titular coplaintiff Tom Hall (collectively Kobayashi), appeal from the trial court’s dismissal of their complaint. Because these same claims were litigated and resolved adversely to Kobayashi in another action, which was affirmed in a previous appeal to this court, we dismiss this appeal as frivolous. In addition, pursuant to California Rule of Court, rule 8.276(a)(1), having issued an order to show cause giving Kobayashi and his counsel, Ephraim O. Obi, written notice this court was considering the imposition of sanctions, and having reviewed Obi’s and Kobayashi’s written response and heard oral argument on the issue of sanctions together with oral argument on the merits of the appeal itself (Cal. Rules of Court, rule 8.276(e)(1)), we now issue sanctions against Kobayashi and his attorney Obi.
Hall is the current assignee of the half-interest in the litigation originally held by named coplaintiff Joe Camacho, whose own 50 percent interest in the claims was assigned to him by Kobayashi.
Kobayashi v. Foster (June 22, 2006, B181743) [nonpub. opn.].
FACTUAL AND PROCEDURAL BACKGROUND
We draw our factual recitation from the allegations of the complaint, the records of related superior court proceedings (of which the trial court properly took judicial notice) and the unpublished decisions of the Court of Appeal in related proceedings. (Evid. Code, § 459, subd. (a)(1); Cal. Rules of Court, rule 8.1115(b)(1).) We also grant Foster’s request for judicial notice of additional pleadings and records from the superior and appellate court files.
In November 1997 Kobayashi leased a two-bedroom apartment, a garage, a parking space and a portion of a garden from Kiyan. One month later, in December 1997, Kobayashi sublet the apartment and parking space to Foster. The sublease had an initial term of six months, from January 1, 1998, to June 30, 1998. After the initial term it was to become a month-to-month tenancy, which would not extend beyond December 31, 2002.
A dispute quickly arose between Kobayashi and Kiyan, leading Kiyan to file an unlawful detainer action against Kobayashi on February 3, 1998 (Mun. Ct., L.A. County, 1998, No. 98U2824). Kiyan initially prevailed in that action and obtained a writ of possession on April 10, 1998, which was served on Kobayashi. On May 1, 1998, after having the locks to the premises changed, Kiyan entered into a lease with Foster. Thereafter, Foster stopped paying rent to Kobayashi and instead paid rent directly to Kiyan.
On May 28, 1998 the trial court in Kiyan’s unlawful detainer action against Kobayashi granted Kobayashi’s motion for a new trial. At the same time Kiyan filed a request for dismissal of the action without prejudice. The trial court granted the request and entered the dismissal on June 1, 1998.
Dismissal of the unlawful detainer action marked the beginning of Kobayashi’s pursuit of Kiyan. As Division Four of this court explained in a 2005 nonpublished opinion, Kobayashi filed an action for breach of contract, trespass and conversion against Kiyan on April 16, 2001. At a hearing on June 21, 2002, after months of maneuvers by Kobayashi in the trial court, the court indicated it would dismiss the action based on a vexatious litigant prefiling order that had been entered against Kobayashi in another action. Two days later, on June 23, 2002, Kiyan died. Judgment was not entered on the dismissal until September 2002, and Kobayashi appealed to this court. In November 2003 letters were issued to William O. Gamble III as Kiyan’s personal representative, and Gamble was substituted in place of Kiyan. Division Four affirmed the dismissal, ruling the trial court properly took judicial notice of the prefiling order of November 17, 2000 and that the prefiling order was constitutional. (Kobayashi v. Gamble III (Mar. 22, 2005, B161686) [nonpub. opn.].)
Next, on August 12, 1998 Kobayashi filed an unlawful detainer action of his own against Foster (Kobayashi v. Foster (Mun. Ct., L.A. County, 1998, No. 98U18404)). The trial court found in favor of Foster, concluding that Kobayashi’s “remedy, if any, is for contract damages.” Kobayashi appealed, and on August 15, 2000 the appellate division of the superior court affirmed the judgment in favor of Foster. (Super. Ct., L.A. County, 2000, No. BV22638). This division denied Kobayashi’s petition for review on October 11, 2000. (Kobayashi v. Superior Court (Foster)(Oct. 11, 2000, B144771).)
On September 28, 2000 Kobayashi filed a motion to vacate the two-year-old dismissal of Kiyan’s original unlawful detainer action. The trial court initially granted the motion but later vacated its order granting the motion. On January 18, 2002 the trial court rejected Kobayashi’s various attempts to revive that lawsuit, which thus remained dismissed.
Meanwhile, in a separate and apparently unrelated lawsuit, on November 17, 2000 the superior court entered a minute order declaring Kobayashi to be a vexatious litigant pursuant to Code of Civil Procedure, section 391.7. (Super. Ct., L.A. County, 2000, No. BC170895.) The minute order prohibited Kobayashi “from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.” The court entered a formal, signed order to the same effect on April 25, 2001. In appeals in separate cases Kobayashi challenged the validity of the prefiling order and the statutes under which it was entered, and two separate divisions of this court rejected his challenges on the merits. (See Kobayashi v. Aleman (Feb. 9, 2005, B172646) [nonpub. opn.] and Kobayashi v. Gamble III (Mar. 22, 2005, B161686) [nonpub. opn.])
Code of Civil Procedure section 391.7, subdivision (a), provides: “In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.” The vexatious litigant statute defines “litigation” as “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” (Code Civ. Proc., § 391.)
On April 26, 2002 Kobayashi filed suit against Foster for breach of contract, negligence, intentional infliction of emotional distress and negligent infliction of emotional distress (Super. Ct., L.A. County, 2000, No. BC272777). On September 25, 2002 the trial court dismissed the complaint on the ground it violated the November 17, 2000 prefiling order. Division One of this court dismissed Kobayashi’s appeal from the dismissal of the complaint. (Kobayashi v. Foster (Jan. 29, 2003, B163583).)
On February 10, 2003 Kobayashi and Camacho filed this action against Foster for equitable and declaratory relief, fraud, breach of contract, negligence, intentional infliction of emotional distress and negligent infliction of emotional distress (the February 2003 action). In what can only be seen as an attempt to evade the order declaring Kobayashi to be a vexatious litigant, the complaint alleged that Kobayashi had assigned 50 percent of his interest in his dispute with Foster to Camacho. The trial court initially entered Foster’s default, but on August 7, 2003 the court struck the complaint as to Kobayashi on the ground that it violated the November 17, 2000 prefiling order. One month later, on September 12, 2003, the court dismissed the complaint as to Camacho on the ground that Camacho had failed to respond to an order to show cause (OSC) concerning his standing. Both Kobayashi and Camacho appealed, and the case was assigned to this division.
On November 18, 2003, while the appeal from dismissal of the February 2003 action was pending, Kobayashi and Camacho filed yet another lawsuit against Foster (Super. Ct., L.A. County, 2003, BC306270) (the November 2003 action), alleging the same causes of action they had alleged in the February 2003 action. They filed a first amended complaint again realleging the same causes of action on November 26, 2003. The first amended complaint in the November 2003 action set forth many of the foregoing facts, including a description of the proceedings in the February 2003 action, and alleged, “Because the dismissal of the above-mentioned action was without prejudice, and not on its merits, plaintiffs file this action in order to prevent running of statute of limitations.” As that allegation confirms, the claims asserted in November 2003 action were substantively identical to those asserted in the February 2003 action that gives rise to this appeal.
Both complaints asserted causes of action for equitable and declaratory relief; fraud, deceit and unfair advantage; breach of contract; negligence; intentional or reckless infliction of emotional distress; and negligent infliction of emotional distress.
Foster demurred to the first amended complaint and requested the court take judicial notice of records from the earlier related lawsuits. The trial court granted the request for judicial notice, sustained the demurrer without leave to amend and entered a judgment of dismissal on August 30, 2004. Kobayashi and Camacho appealed; and, because of the differing case numbers in the February 2003 and November 2003 actions, the new appeal was assigned to Division One of this court.
Shortly thereafter, in a decision issued on October 26, 2004, this division reversed the dismissal of the February 2003 action based on the trial court’s failure to acknowledge the fact Camacho had joined in Kobayashi’s response to the OSC. (Kobayashi v. Foster (Oct. 26, 2004, B170832) [nonpub. opn.].) We directed the court “to consider and file a meaningful decision on the joint issues presented” by Kobayashi and Camacho in that response. (Ibid.)
Notwithstanding the appeal of the identical claims in the November 2003 action pending in Division One, Kobayashi and Camacho renewed their effort to obtain a default judgment against Foster in the February 2003 action by filing a motion reasserting their objections to the OSC, which had previously been overruled by the trial court, and requesting a hearing on the default prove-up package submitted before the court first dismissed the action. The motion contained a notice that Camacho would not personally appear at the hearing. In response, the trial court issued a minute order stating it would “exercise[] its discretion not to allow the parties to proceed by way of affidavit” and ordered Camacho to appear for the default prove-up hearing scheduled for July 19, 2005. Kobayashi and Camacho immediately filed a statement attempting to disqualify the judge, which was denied. They then filed a second statement attempting to disqualify the judge based on “new facts” -- in part the court’s failure to address Kobayashi as “Dr. Kobayashi” in its order and its reference to an online version of the prefiling order, the original of which had apparently disappeared from the court’s file. The court again struck the statement of disqualification. Allegedly “frustrated and intimidated by the order to appear and testify,” Camacho transferred his half-interest in the claims against Foster to John Lee. When John Lee determined he was unavailable to attend the rescheduled prove-up hearing, he transferred his half-interest to Tom Hall, who “elect[ed] to continue this action in the name of the original party, Joe Camacho, without substitution.” In a minute order issued after the prove-up hearing, at which Hall appeared through counsel, the court bluntly stated its reason for having ordered Camacho to appear: “There is some question in the court’s mind whether Mr. Camacho even exists, as he has never appeared in court, shares the same address and telephone number as Mr. Kobayashi, and uses a single letter as his signature . . . .”
Kobayashi likewise opposed Foster’s request in this court to take judicial notice of the prefiling order for the same reason, arguing, “Obviously, a document missing from a court record cannot be judicially noticed under Evidence Code [section] 452.” Kobayashi’s objection ignores Code of Civil Procedure section 391.7, subdivision (e), which requires the clerk of the trial court issuing a prefiling order to provide the Judicial Council with a copy of the order and directs the Judicial Council to compile a vexatious litigant list, which it is to disseminate annually to the clerks of all courts in California. The Judicial Council has delegated the responsibility for preparing and maintaining the list to the Administrative Office of the Courts (AOC), which compiles and disseminates a list of individuals and organizations against whom prefiling orders have been entered. In addition to distributing hard copies of the list, the Judicial Council, through the AOC, fulfills its obligation to disseminate the vexatious litigant list by making available to court clerks and judicial officers an updated, online version of the list. The trial court’s judicial notice of Kobayashi’s inclusion on the Judicial Council list was entirely proper.
On November 1, 2005 the court issued an order reaffirming its original decision to dismiss Kobayashi’s claims based on his failure to comply with the November 17, 2000 vexatious litigant prefiling order. The court found no basis, however, to dismiss the claims assigned by Kobayashi first to Camacho and, ultimately, to Hall. In light of the multiple actions filed by Kobayashi, however, the court requested that Hall submit additional briefing addressing whether principles of collateral estoppel and res judicata barred any recovery on the assigned claims. In an order dated April 25, 2006 the court rejected Hall’s proposed default prove-up on the ground that Kobayashi’s statements in previous litigation demonstrated he had no viable claim against Foster that could have been assigned to Hall. Judgment was entered against Hall and in favor of Foster on May 1, 2006.
Meanwhile, Kobayashi and Camacho, represented by Obi, the same counsel who appears in this appeal, pursued their appeal of the November 2003 action. Division One’s opinion affirming the trial court’s dismissal of the action was issued on June 22, 2006, only six weeks after the trial court had issued its judgment dismissing the February 2003 action. (Kobayashi v. Foster (June 22, 2006, B181743) [nonpub. opn.].) The Court of Appeal reviewed the extensive history between the parties, as documented in the superior and appellate court records, and rejected each of the claims contained in the first amended complaint -- the same claims Kobayashi and Hall asserted in the February 2003 complaint at issue in this appeal. In short, the court concluded Kobayashi was barred from relitigating the constitutionality of the vexatious litigant statute, as was Camacho, Kobayashi’s assignee; the allegations of the complaint were insufficient to show extrinsic fraud by Foster; any alleged misrepresentations by Foster were made in the context of litigation and were thus absolutely privileged under Civil Code section 47, subdivision (b); and the breach of contract, negligence and infliction of emotional distress claims were barred by the relevant statutes of limitation and were not subject to equitable tolling. (Kobayashi v. Foster, supra,at pp. 6-12.) One week after the issuance of Division One’s opinion affirming dismissal of the November 2003 action, Kobayashi and Hall filed a notice of appeal in this action.
CONTENTIONS
Kobayashi and Hall contend the trial court erred in dismissing the case rather than entering a default judgment in their favor and against Foster. In addition, Kobayashi renews his attack on the November 17, 2000 order declaring him a vexatious litigant.
DISCUSSION
1. This Appeal Is Barred by Principles of Res Judicata
Kobayashi and Hall argue the trial court exceeded its authority when, despite Foster’s default, it dismissed Kobayashi and Hall’s complaint. We need not consider the merits of this contention because the underlying claims were fully and finally resolved against Kobayashi and his original assignee Camacho by Division One when it issued its opinion affirming dismissal of the November 2003 action. Whether or not Camacho has since purported to assign those claims to yet another party (Hall), both Kobayashi and Camacho are precluded by principles of res judicata from relitigating those issues in this appeal. (See Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 222.)
“The doctrine of res judicata precludes the relitigation of certain matters which have been resolved in a prior proceeding under certain circumstances. [Citation.] Its purpose is ‘to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment by vexatious litigation.’ [Citations.] [¶] The doctrine has two aspects. It applies to both a previously litigated cause of action, referred to as claim preclusion, and to an issue necessarily decided in a prior action, referred to as issue preclusion. [Citations.] The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding.” (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.)
Moreover, even though a cause of action is titled differently or a new “theory” is raised, the doctrine of res judicata prevents a party from relitigating the same “issue” or “primary right” raised in prior litigation. (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1427; see also Lincoln Property Co., N.C. , Inc. v. Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 912-913.) A party cannot split a primary right into different legal theories or different causes of action. When there is only one primary right, an adverse judgment in the first suit is a bar, even though the second suit is based on a different theory or seeks a different remedy. (Lincoln Property, at p. 913; see also Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897 [noting doctrine of res judicata promotes judicial economy by ensuring that “all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date”]; Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245 [“‘[r]es judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief’”].)
In the situation when, as here, two separate lawsuits involving the same causes of action are pursued simultaneously, and judgment in one lawsuit becomes final during the pendency of an appeal in the other lawsuit, the final judgment is res judicata and bars further litigation in the second lawsuit. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 8:187.5, pp. 8-121 to 8-122, citing Palm Springs Paint Co. v. Arenas (1966) 242 Cal.App.2d 682, 688 [“[w]here there are two separate pending actions involving the same issue and same parties in different courts, it is the first final judgment, even though rendered in the second suit, that renders the issue res judicata in the other suit”]; see also Domestic & Foreign Petroleum Co., Ltd. v. Long (1935) 4 Cal.2d 547, 562 [same].)
There is no question the February and November 2003 actions were premised on the same primary right -- Kobayashi’s alleged injuries occasioned by Foster entering into a lease directly with Kiyan -- and contained the same factual allegations to support the various causes of action asserted. Indeed, as Division One noted in its opinion affirming dismissal of the November 2003 action, “much of the instant first amended complaint is copied verbatim from the complaint in [the February 2003 action].” (Kobayashi v. Foster, supra, B181743 at p. 4.) Moreover, Kobayashi and Camacho admitted as much in the first amended complaint in the November 2003 action, which affirmatively stated, “Because the dismissal of the [February 2003 action] was without prejudice, and not on its merits, plaintiffs file this action in order to prevent running of statute of limitations.” The trial court sustained Foster’s demurrer without leave to amend in the November 2003 action, and Division One decided the appeal on the merits and affirmed the trial court’s dismissal on all claims.
Hall is equally bound by this decision as his interest is in direct privity with both Kobayashi and Camacho.
To be sure, the complaint in the November 2003 action was dismissed after the trial court sustained a general demurrer, which in some instances may not be a decision on the merits sufficient to support application of the res judicata doctrine: “[A] judgment on general demurrer may not be on the merits, for the defects set up may be technical or formal, and the plaintiff may in such case by a different pleading eliminate them or correct the omissions and allege facts constituting a good cause of action, in proper form.” (Goddard v. Security Title Ins. & Guar. Co. (1939) 14 Cal.2d 47, 52.) Nonetheless, “a judgment given after the sustaining of a general demurrer on a ground of substance, for example, that an absolute defense is disclosed by the allegations of the complaint, may be deemed a judgment on the merits, and conclusive in a subsequent suit; and the same is true where the demurrer sets up the failure of the facts alleged to establish a cause of action, and the same facts are pleaded in the second action.” (Ibid.; accord, Keidatz v. Albany (1952) 39 Cal.2d 826, 828 [order dismissing suit after general demurrer has been sustained “is a judgment on the merits to the extent it adjudicates that the facts alleged do not constitute a cause of action, and will, accordingly, be a bar to a subsequent action alleging the same facts. [Citations.] Moreover, even though different facts may be alleged in the second action, if the demurrer was sustained in the first action on a ground equally applicable to the second, the former judgment will also be a bar”]; Pollock v. University of Southern California, supra, 112 Cal.App.4th at p. 1428 [fact that appeal in prior case “resulted from the sustaining of a general demurrer does not preclude application of the res judicata doctrine”].)
As discussed, the complaints in both the February 2003 and November 2003 actions allege the same facts and assert the same claims; and the legal grounds recognized by Division One to affirm the dismissal of the November 2003 action -- that res judicata barred relitigation of the constitutionality of the vexatious litigant statute, the allegations were insufficient to show extrinsic fraud, Foster’s statements were covered by the litigation privilege and several of the claims were barred on their face by the applicable statutes of limitations -- were equally applicable to the February 2003 action. In other words, Kobayashi and Camacho have at all times understood the November 2003 action mirrored the February 2003 action and a final decision in either case would constitute a final resolution of the alleged claims. Thus, in June 2006, when Division One issued its opinion resolving all claims in the November 2003 action against them, Kobayashi and Camacho indisputably knew that the claims in the February 2003 action were no longer viable. Nonetheless, they elected to proceed with this appeal.
Although dismissal of an action based on the statute of limitations is usually deemed a technical or procedural, rather than a substantive, termination and thus without res judicata effect (see, e.g., Mid-Century Ins. Co. v. Superior Court (2006) 138 Cal.App.4th 769, 776-777; Koch v. Rodlin Enterprises (1990) 223 Cal.App.3d 1591, 1595-1596), Division One held, to the extent Kobayashi’s claims were not barred by the litigation privilege, each of his causes of action were based on events that occurred on or before July 31, 1998. That holding with respect to the November 2003 action, whether viewed through the lens of claim preclusion or issue preclusion, is equally applicable to the February 2003 action, which is therefore barred to the same extent. (Goddard v. Security Title Ins. & Guar. Co., supra, 14 Cal.2d at p. 52.)
Because this appeal is utterly without merit, we exercise our inherent power to dismiss it. (Ferguson v. Keays (1971) 4 Cal.3d 649, 658 [“we emphasize that the appellate courts possess the further inherent power to summarily dismiss any action or appeal which has as its object to delay, vex or harass the opposing party or the court, or is based upon wholly sham or frivolous grounds”]; People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1318 [same]; Zimmerman v. Drexel Burnham Lambert Inc. (1988) 205 Cal.App.3d 153, 161 [“[a]ppellate courts have an inherent power to summarily dismiss any appeal which is designed for delay or which is based on sham or frivolous grounds”].) “Bluntly speaking, the judicial system does not have the resources to indulge petulant litigants” (Portola Hills Community Assn. v. James (1992) 4 Cal.App.4th 289, 294-295, disapproved on other grounds in Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 386), nor are “[o]ur courts [] obliged to provide a forum for litigation that has no objective chance of success.” (Neufeld v. State Bd. of Equalization (2004) 124 Cal.App.4th 1471, 1477-1478.)
2. Sanctions Against Kobayashi and His Counsel Are Warranted in This Action
Kobayashi did not merely prosecute a meritless appeal in this matter. Even though Kobayashi is represented by the same counsel who represented him in the earlier appeal, which finally resolved these claims against him, Kobayashi and his attorney Obi failed in their briefs to this court to disclose, let alone discuss, Division One’s decision. In light of these irrefutable facts, we issued an order to show cause and asked for additional briefing to determine whether we should impose sanctions on Kobayashi and his counsel for pursuing this appeal, which is, by any measure, frivolous.
We chose not to include Camacho or Hall in our order to show cause because Camacho’s purported interest was transferred first to Lee and then to Hall within weeks of the issuance of Division One’s opinion. The record before us does not indicate whether proper disclosures were made to Hall about the status of Kobayashi’s claims.
At Obi’s request, we supplemented our original order to show cause regarding sanctions and provided Kobayashi and Hall with a tentative decision to clarify the grounds for the proposed sanctions. We also extended the time to respond.
“‘Free access to the courts is an important and valuable aspect of an effective system of jurisprudence, and a party possessing a colorable claim must be allowed to assert it without fear of suffering a penalty more severe than that typically imposed on defeated parties.’” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 648.) At the same time, California courts are authorized not only to dismiss frivolous appeals but also to impose sanctions against a party or counsel when the right of such access is abused. (Code Civ. Proc. § 907 [“When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just”]; see Cal. Rules of Court, rule 8.276(a)(1).)
That an appeal lacks merit does not, alone, establish it is frivolous. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414.) An appeal is frivolous “when it is prosecuted for an improper motive -- to harass the respondent or delay the effect of an adverse judgment -- or when it indisputably has no merit -- when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) The first standard is tested subjectively. The focus is on the good faith of appellant and counsel. The second is tested objectively. (Id. at pp. 649-650; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶¶ 11.102 to 11.103, p. 11-34, rev. #1 (2006).) “While each of the above standards provides independent authority for a sanctions award, in practice the two standards usually are used together ‘with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay.’” (Id. at ¶ 11:104, p. 11-34.) Although the power to impose sanctions must be used “sparingly to deter only the most egregious conduct” (In re Marriage of Flaherty, at p. 651), “[r]epeated litigation of matters previously determined by final judgment constitutes harassment and should be penalized. [Citations.] Even if it can be assumed that appellant conscientiously believes he has been aggrieved, the continued misuse of the courts to relitigate matters previously determined cannot be condoned.” (Weber v. Willard (1989) 207 Cal.App.3d 1006, 1010.)
In total, Kobayashi’s obsession (we can think of no more apt word) with his former landlady Kiyan and former tenant Foster has given rise to at least seven lawsuits, all but one of them -- Kiyan’s initial unlawful detainer action -- prosecuted by Kobayashi. Over all, Foster has been forced to respond to (or to trust the court’s ability to uncover Kobayashi’s status on its own) four legal actions, none of which has been successful. As anyone who has been personally subjected to litigation would recognize, Kobayashi’s single-minded pursuit of Foster qualifies as harassment.
Even were Kobayashi to deny an intent to harass Foster, “no other conclusion is possible in view of the number of times he has been told by different courts that his actions are frivolous and groundless.” (Weber v. Willard, supra,207 Cal.App.3d at p. 1010.) Indeed, to borrow the words of another court, Kobayashi’s “apparently ‘incurable litigation complex’ has rendered him an ‘insufferable nuisance,’ imposing an unreasonable burden upon the courts and our system of administration of justice. [Citation.] The motive here may be to harass the other party, to postpone the result, or simply to satisfy some urge to engage in litigation. The court cannot permit such litigation to continue without offering the protection provided in the vexatious litigant statutes to the targets of the repeated attempts to relitigate the same issues.” (First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 870.)
Kobayashi’s conduct fully warrants the Los Angeles Superior Court’s November 17, 2000 conclusion he is a vexatious litigant. The conduct of his counsel, Ephraim Obi, is, if anything, even more troubling. Whatever arrangement Kobayashi has with his counsel in this action, “[e]very practicing lawyer is aware of the risk of being ordered to pay ‘any reasonable expenses, including attorney’s fees, incurred . . . as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.’ (Code Civ. Proc., § 128.5, subd. (a); see id., § 128.7.)” (Neufeld v. State Bd. of Equalization, supra, 124 Cal.App.4th at p. 1478.) “An attorney in a civil case is not a hired gun required to carry out every direction given by the client. [Citation.] As a professional, counsel has a professional responsibility not to pursue an appeal that is frivolous or taken for the purpose of delay, just because the client instructs him or her to do so. [Citation.] Under such circumstances, the high ethical and professional standards of a member of the bar and an officer of the court require the attorney to inform the client that the attorney’s professional responsibility precludes him or her from pursuing such an appeal, and to withdraw from the representation of the client.” (Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1103; see Keitel v. Heubel (2002) 103 Cal.App.4th 324, 342 [counsel’s professional obligations override his personal motivations in pursuing a frivolous appeal]; Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 996 [sanctioning counsel for frivolous appeal on ground counsel had professional obligation not to pursue appeal]; Rules Prof. Conduct, rule 3-700(B)(1) [counsel has professional responsibility to withdraw from employment rather than undertake frivolous appeal “just because the client instructs him . . . to do so”].) Notwithstanding these principles, Obi, who also represented Kobayashi in the appeal of the November 2003 action, briefed this appeal of the February 2003 action without once advising this panel of the decision issued by Division One. Such conduct is inexcusable.
The sole reason Kobayashi was allowed to proceed with this appeal notwithstanding his well-earned status as a vexatious litigant was his retention of counsel to prosecute the appeal on his behalf. We originally issued an OSC directing Kobayashi to demonstrate he was not represented by sham counsel based on his history as a vexatious litigant. (See In re Shieh (1993) 17 Cal.App.4th 1154, 1166-1168 [extending prefiling order to vexatious litigant ostensibly represented by “puppet” counsel].) We allowed the appeal to proceed based on his counsel’s declaration to the contrary.
Having given Kobayashi and his counsel notice by issuing an order to show cause why sanctions should not be imposed, and having afforded them an opportunity to respond both in writing and at oral argument, we conclude that sanctions are proper for pursuing a harassing appeal that is frivolous because it indisputably has no merit. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 312.) This opinion constitutes a written statement of our reasons for imposing sanctions. (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 654; see Pollock v. University of Southern California, supra, 112 Cal.App.4th at p. 1434; Bach, at p. 313.)
DISPOSITION
The appeal is dismissed. Foster, who represented himself in this proceeding, is to recover his costs on appeal. In addition, as sanctions for bringing this frivolous appeal, Kobayashi and Obi are directed to pay (as a joint and several obligation) $2,000 directly to the clerk of this court and $5,000 directly to Mark Foster. The clerk will forward a copy of this opinion to the State Bar of California. (Bus. & Prof. Code, § 6086.7, subd. (a)(3).)
A 2006 cost analysis undertaken by the clerk’s office for this district indicates the cost of processing an appeal that results in an opinion by the court is approximately $8,500, while the cost for processing a case that is resolved without opinion (for example, by dismissal for lack of an appealable order) is approximately $1,750. We allocate the largest portion of this award to Mark Foster in recognition of the financial and emotional burden imposed upon him by the actions of Kobayashi and his counsel.
We concur: WOODS, J. ZELON, J.