Tracy v. Brown CA6

Filed 6/10/25 Tracy v. Brown CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

MARK CHRISTOPHER TRACY, H052301

(Santa Clara County

Plaintiff and Appellant, Super. Ct. No. 23CV423435)

v.

PAUL BROWN,

Defendant and Respondent.

Mark Christopher Tracy brought a defamation action against multiple defendants,1

including Paul Brown. Shortly thereafter, the trial court granted Brown’s motion to

declare Tracy a vexatious litigant and enter a prefiling order. (Code Civ. Proc., §§ 391,

subd. (b)(4), 391.7, subd. (a).)2 Tracy appeals. Because substantial evidence supports the

trial court’s order, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Tracy sued defendants for libel, libel per se, false light, and intentional infliction

of emotional distress, alleging defendants published defamatory statements on a Utah

public water district website and made additional defamatory statements to others. He

1

The defendants are: Cohne Kinghorn P.C., Simplifi Company, Jeremy Rand

Cook, Eric Hawkes, Jennifer Hawkes, Michael Scott Hughes, David Bradford, Kem

Crosby Gardner, Walter J. Plumb III, David Bennion, R. Steve Creamer, Paul Brown, and

Gary Bowen. Brown is the only party to the current appeal.

2

Unspecified statutory references are to the Code of Civil Procedure.

had previously brought suit against various defendants in Utah federal court based on

allegations that a Utah-based law firm, acting on behalf of the Utah public water district

and private land developers, fraudulently retired and misappropriated water rights for a

private luxury development (FCA lawsuit). The FCA lawsuit was dismissed after

multiple appeals. In the complaint underlying this appeal, Tracy alleged defendants

shared the defamatory statements to obtain payment from California property owners in

furtherance of their fraud and to prevent further appellate review of the FCA lawsuit.

Tracy allegedly brought the defamation lawsuit “to restore his reputation and establish

Defendants’ legal liability for the fraudulent retirement of senior water rights [and]

improper concealment of drinking-water contamination[.]”

Brown, specially appearing, moved to declare Tracy a vexatious litigant and

requested the court enter a prefiling order.3 He asserted Tracy brought six nearly

identical lawsuits in Utah federal and state court and was declared a vexatious litigant

under Utah state law. Brown also emphasized Tracy was found to be vexatious in an

attorney fee order issued in the FCA lawsuit. Tracy opposed Brown’s motion.

The trial court granted Brown’s motion and request for a prefiling order. The

court found Tracy was a vexatious litigant because he had previously been declared

vexatious by Utah federal and state courts in lawsuits based upon substantially similar

facts to those alleged in the defamation suit. Tracy had reiterated the allegations of

fraudulent water rights from his previous lawsuits in his complaint, and the current

defamation suit required the facts alleged in the previous lawsuits be tried for falsity. In

making its determination, the court granted both parties’ requests for judicial notice,

3

All defendants filed successful motions to quash service of summons and the

complaint for lack of personal jurisdiction. Tracy appealed. His appeals of the two

orders granting motions to quash filed by Plumb and the personal representatives of

R. Steve Creamer’s probate estate were dismissed after his requests to permit an appeal

as a vexatious litigant were denied (H052239, H053022). Tracy’s appeal of the separate

order granting the remaining defendants’ motions to quash is pending (H052028).

2

noting it was taking judicial notice of the existence of court documents and findings but

not of the truth of the matters asserted in the documents. Tracy timely appealed.4

II. DISCUSSION

Tracy argues he was never found to be a vexatious litigant in any proceeding

substantially similar to his current defamation suit. Brown argues Tracy was declared a

vexatious litigant in prior water rights lawsuits based on identical or similar facts to his

defamation suit. The parties also disagree as to whether the trial court properly granted

Brown’s request for judicial notice.

A. Evidentiary Objections

Tracy argues the trial court erred by granting Brown’s request for judicial notice.

He asserts Brown did not properly request judicial notice by submitting the request when

he filed his motion and argues the court failed to provide sufficient notice it would grant

the request. Brown maintains Tracy forfeited his arguments regarding judicial notice by

failing to raise the issue below. He also argues the court records attached to his request

are properly subject to judicial notice and maintains he provided appropriate notice of the

request as the moving party.

The record reflects Tracy did not raise the issue of judicial notice in the trial court.

He did not oppose Brown’s request for judicial notice or object to the admissibility of the

evidence attached to Brown’s request below. (See J&A Mash & Barrel, LLC v. Superior

Court (2022) 74 Cal.App.5th 1, 25 [because a party did not oppose a request for judicial

notice or object to the admissibility of a document, any evidentiary challenges to the

document were forfeited on appeal].) Tracy has forfeited any claim the trial court

improperly took judicial notice of documents attached to Brown’s request.

4

After the filing of the notice of appeal, this Court stayed the appeal due to

Tracy’s failure to seek permission from the presiding justice of this Court to file the

appeal as required under section 391.7, subdivision (c). Tracy thereafter filed a request to

file new litigation as a vexatious litigant, which was granted.

3

Even if we consider the merits of Tracy’s argument, we discern no error. We

review the trial court’s evidentiary rulings for abuse of discretion. (People v. Clark

(2016) 63 Cal.4th 522, 597, citing People v. Avila (2006) 38 Cal. 4th 491, 578.) Brown

requested the court take judicial notice of Utah state and federal court records and

attached the evidence to a supporting declaration. He then filed a supplemental request

for judicial notice of the same court records attached to the declaration. (See Evid. Code,

§ 452, subd. (d)(2).) Brown filed the judicial notice request prior to Tracy’s opposition to

the motion, giving Tracy sufficient notice of the request prior to the trial court’s ruling.

(See Evid. Code, § 453, subd. (a).) The trial court properly limited judicial notice to the

existence of the records and the fact that factual findings were made (but not to the

substance of those findings). (See Johnson & Johnson v. Superior Court (2011) 192

Cal.App.4th 757, 768.) The trial court did not abuse its discretion by granting Brown’s

request.

B. Vexatious Litigant

“The vexatious litigant statutes (§§ 391-391.7) are designed to curb misuse of the

court system by those persistent and obsessive litigants who, repeatedly litigating the

same issues through groundless actions, waste the time and resources of the court system

and other litigants. [Citation.]” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169.) A

person must come within the definitions of section 391 to be declared a vexatious litigant.

(Morton v. Wagner (2007) 156 Cal.App.4th 963, 969.) Section 391, subdivision (b)(4)

defines a vexatious litigant as a person who “[h]as previously been declared to be a

vexatious litigant by any state or federal court of record in any action or proceeding based

upon the same or substantially similar facts, transaction, or occurrence” as the current

action. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1199.) If a plaintiff is declared

vexatious, the court may enter a prefiling order prohibiting the litigant from filing new

litigation in the courts of California in propria persona without first obtaining leave of the

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presiding justice or judge of the court where the litigation is to be filed. (§ 391.7,

subd. (a).)

“ ‘A 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. [Citation.]’ [Citations.]”

(Garcia v. Lacey (2014) 231 Cal.App.4th 402, 407-408.) Tracy has the burden to

affirmatively show error based on the record presented to this Court. (Jameson v. Desta

(2018) 5 Cal.5th 594, 608-609.)

Tracy argues he is not a vexatious litigant because no court has properly declared

him to be vexatious, and the falsity of defendants’ allegedly defamatory statements was

never at issue in his previous water rights lawsuits.5 Brown contends Tracy was declared

vexatious in Utah federal and state court and the current defamation lawsuit is based on

identical or similar facts alleged in those prior two lawsuits, rendering him a vexatious

litigant under California law.

The Third District Court in and of the State of Utah declared Tracy to be a

vexatious litigant under Utah state law in a public records suit alleging several

defendants’ failure to disclose public water level data. In the lawsuit, Tracy claimed the

defendants misappropriated water rights to support an oversized water system for a

private development.6 The United States District Court for the District of Utah found

5

In a footnote, Tracy argues the vexatious litigant order is without basis because

he has demonstrated a reasonable probability of prevailing on Brown’s motion to quash.

A court must assess a plaintiff’s reasonable probability of prevailing in the litigation only

if a defendant moves for an order requiring a plaintiff to furnish security. (§§ 391.1,

subd. (a), 391.3, subd. (a).) Brown did not move for an order requiring Tracy to furnish

security.

6

Tracy briefly argues the order by the Third District Court in and of the State of

Utah is void for lack of jurisdiction because it was issued by the trial court during

appellate proceedings. Nothing in the record supports Tracy’s contention.

5

Tracy to be vexatious when awarding attorney fees to the defendants in the FCA lawsuit

alleging similar fraudulent water rights claims. Tracy alleged the defendants made false

statements to obtain a clean water loan from the federal government and failed to comply

with the conditions of the loan by building an oversized water system and

misappropriating water rights to enrich themselves and private land developers.

Tracy’s defamation claim is based upon substantially similar facts to these two

actions. He chronicles defendants’ alleged fraudulent water rights scheme in his current

complaint, arguing they constructed an oversized water system and retired senior water

rights to support a private luxury development, and alleges defendants made defamatory

statements to suppress their ongoing fraud and hinder the appellate process of the FCA

lawsuit. He states he brought the current action to prove defendants’ liability for the

fraudulent retirement of senior water rights. There is substantial evidence to support the

trial court’s finding that Tracy is a vexatious litigant because he was previously declared

vexatious in proceedings based upon similar facts to the current action.

III. DISPOSITION

The order declaring Tracy a vexatious litigant is affirmed.

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_______________________________

Greenwood, P. J.

WE CONCUR:

______________________________________

Grover, J.

______________________________________

Wilson, J.

H052301 Tracy v. Brown