Marriage of Holtz CA4/1

Filed 12/19/22 Marriage of Holtz CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of SARAH

HOLTZ and BENJAMIN HOLTZ.

D079859

SARAH HOLTZ,

Respondent, (Super. Ct. No. 18FL007268N)

v.

BENJAMIN HOLTZ,

Appellant.

APPEAL from an order of the Superior Court of San Diego County,

Harry L. Powazek, Judge. Affirmed.

Benjamin Holtz, in pro per, for Appellant.

Mazur & Mazur and Janice R. Mazur, for Respondent.

Benjamin Holtz appeals from an order declaring him to be a vexatious

litigant (Code Civ. Proc., § 391)1 and a related prefiling order prohibiting him

from filing any new litigation in the California courts in propria persona

1 All further statutory references are to the Code of Civil Procedure.

without first obtaining leave of the presiding justice or presiding judge of the

court where the litigation is proposed to be filed. (§ 391.7.) We find no error

and affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Underlying Action

Benjamin and Sarah Holtz are parties to a marital dissolution action

filed in San Diego County Superior Court in 2018. They have one minor

child. The court entered a dissolution judgment on November 7, 2019.

On January 24, 2020, Commissioner Patti Ratekin issued a statement

of decision and ruling after a review hearing. She declined to adopt a plan for

equal sharing of child custody by both parents. The commissioner expressed

concerns about Benjamin’s “erratic behavior” and “inability to value the

mother’s role in the child’s life.” She ordered that the parents would continue

to share joint legal custody, Sarah would have the final decision-making

authority, and the child would be with Benjamin for one 48-hour period each

Sunday through Tuesday and one four-hour period each Thursday.

Benjamin was represented by counsel up until this order, but then

became self-represented after his attorney refused to file an appeal. In

September 2020, Commissioner Ratekin recused herself at Benjamin’s

request, and the matter was reassigned to the Honorable Harry L. Powazek.

In April 2021, Judge Powazek issued a statement of decision granting

Sarah’s request for a domestic violence restraining order (DVRO) and

modifying the child custody and visitation orders. Judge Powazek awarded

Sarah sole legal custody and reduced Benjamin’s visitation time.

From May through August 2021, before being declared a vexatious

litigant, Benjamin filed five statements of disqualification against Judge

Powazek in propria persona. These statements of disqualification were each

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stricken by the court on the grounds that they were untimely, they failed to

state any legal basis for disqualification, and they constituted improper

repeat challenges. Among other things, the court found that Benjamin’s

claims of bias did not require disqualification because they arose from his

mere disagreement with Judge Powazek’s statements and rulings made in

his official capacity, and the fact that Benjamin had filed a lawsuit against

Judge Powazek was also not a proper basis for disqualification. Each of these

orders stated: “This order constitutes a determination of the question of

disqualification of the [trial] judge pursuant to section 170.3, subdivision (d).”

Benjamin filed three writ petitions with this court challenging Judge

Powazek’s orders striking his requests for disqualification. We summarily

denied the first of these writ petitions (No. D078900) on May 14, 2021, and

the Supreme Court denied review on July 28, 2021. We summarily denied

the second petition (No. D078936) on May 19, 2021. We summarily denied

the third petition (No. D079079) on June 18, 2021, and the Supreme Court

denied review on August 11, 2021.2

As a self-represented litigant, Benjamin also filed multiple ex parte

applications, many seeking to protest prior rulings, accuse the family court of

abusive conduct, and relitigate issues already decided. Between July 9, 2020

and July 21, 2021, Benjamin filed at least 14 ex parte applications that were

denied and one that was taken off calendar when he failed to appear. His ex

parte applications included requests to “[r]emove the wacky court ordered

2 We grant Sarah’s unopposed request for judicial notice of records of

Benjamin’s filings in this court, the California Supreme Court, and the

United States District Court for the Southern District of California, all of

which were referred to in the trial court. (Evid. Code, §§ 452, subd. (d), 459,

subd. (a).)

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custody schedule,” grant “relief from the abusive clutches of Dept 19,” “stop

abuse,” and “please stop raping my family.”

Judge Powazek repeatedly admonished Benjamin not to file ex parte

applications unless there was an emergency (Cal. Rules of Court, rule

3.1202(c)), but Benjamin continued to do so. Judge Powazek also warned

Benjamin, “[w]e don’t re-litigate on an ex parte basis, as you know.”

Benjamin also filed and then ultimately dismissed three contempt

charges against Sarah and two DVRO requests.

B. Other Appellate Filings

In addition to the three writ petitions seeking disqualification of Judge

Powazek, Benjamin filed seven other appeals or writ petitions with this court

during a 15-month period from June 3, 2020 through September 7, 2021, all

arising out of the same underlying family court case. Benjamin abandoned

one of these appeals (Holtz v. Holtz (Apr. 16, 2021, D077723) app.

abandoned); he voluntarily dismissed a second appeal after full briefing

(Holtz v. Holtz (May 26, 2021, D078795) app. dism.); we dismissed a third

appeal on the basis that it was barred by Benjamin’s abandonment of his

prior appeals (Holtz v. Holtz (Sept. 22, 2021, D079329) app. dism.); and we

summarily denied his four other writ petitions (Nos. D078702, Mar. 24, 2021

summary denial order; D078878, May 5, 2021 summary denial order;

D079423, Sept. 8, 2021 summary denial order; and D079433, Sept. 9, 2021

summary denial order).

C. Federal Court Action

In a separate action that was removed to federal court in August 2021,

Benjamin sued Judge Powazek, two other superior court judges, a superior

court commissioner, a superior court executive officer, and three attorneys

involved in the family court proceedings. (Holtz v. Powazek (Nov. 22, 2021,

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No. 3:21-cv-01401-CAB-JLB) dism.) He asserted claims including violations

of the Civil Rights Act (42 U.S.C. §§ 1983, 1985, 1986) and the Racketeering

and Corrupt Organizations Act (18 U.S.C. § 1962). Benjamin’s complaint

alleged that he was suing “the black robed tyrants in San Diego County

Family Court and other related associates/professionals” who “shall hereafter

be referred to as the Judicial Nobility Extortion Syndicate (JNES).”

On October 19, 2021, the federal court granted a motion to dismiss the

superior court defendants based on judicial immunity. Holtz later dismissed

all claims against the remaining parties.3

D. Vexatious Litigant Order

In May 2021, Sarah filed a request for order in the trial court to have

Benjamin declared a vexatious litigant under section 391. In a supporting

declaration, she summarized 31 requests for relief Benjamin had filed as a

self-represented litigant, and the outcome of each. She also stated that she

had spent over $46,000 in attorney fees from the start of the case, much of

which was incurred in responding to Benjamin’s constant filings. In a

supplemental declaration filed before the hearing, Sarah summarized 14

more requests for relief filed by Benjamin while the motion was pending, and

the outcome of each.

On October 25, 2021, the trial court held a hearing and heard

arguments on the motion. Sarah’s counsel argued that Benjamin met each of

the alternative definitions of a vexatious litigant under section 391,

subdivision (b)(1)-(3). In response, Benjamin argued, “I did go through this

civil avenue, I tried to correct what I viewed as some wrongs, but

3 The record suggests that Benjamin also filed another civil action

against Judge Powazek and other judicial officers. At the time of the hearing

on the motion to declare Benjamin a vexatious litigant, this action had

apparently been dismissed with leave to amend.

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unfortunately they determined that my attempts are futile because there’s no

facts whatsoever that would support my arguments.” He asserted, “I mean,

I’m not vexatious. I just want to be a parent to [the child]. So, you know, if

the court feels that I’m vexatious, that’s up to you, you have that power.”

The court noted it had never questioned that Benjamin had a strong

bond with his son. The court also noted its reluctance to declare someone a

vexatious litigant. However, the court expressed concerns about Benjamin’s

multiple unsuccessful filings and took the matter under submission.

Four days after the hearing, before any final ruling, Benjamin filed a

sixth statement of disqualification of Judge Powazek. On November 2, 2021,

Judge Powazek issued an order striking the sixth statement on the ground

that it was “untimely, fails to allege any legal basis for disqualification, and

is an improper repeat challenge because there are no new substantive

allegations raised in the instant request to disqualify Judge Powazek from

this case.” The court noted that “[t]he majority of the Sixth Statement

appears to be cut and pasted from [Benjamin]’s prior Statements of

Disqualification.”4

Also on November 2, 2021, the court issued an order after hearing

granting Sarah’s motion to have Benjamin declared a vexatious litigant. The

court found that Benjamin “while acting in [propria] persona has repeatedly

filed unmeritorious motions, pleadings and other papers and has engaged in

tactics that were frivolous within the meaning of [Code of Civil Procedure]

section 391[, subdivision] (b)(3) and therefore, he is declared a vexatious

4 Apparently unaware of Judge Powazek’s order, the supervising judge

later issued a separate order denying Benjamin permission to file the sixth

statement of disqualification and ruling that his “latest effort includes no new

facts, evidence or legal argument that compel a new look at these issues.”

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litigant.” The court did not decide whether Benjamin met the alternative

definitions of a vexatious litigant under section 391, subdivision (b)(1) or (2).

The court stated that it had considered the following unsuccessful

filings by Benjamin in making the vexatious litigant determination:

(1) fifteen ex parte applications, 14 of which were denied and one taken off

calendar when Benjamin failed to appear; (2) three dismissed contempt

proceedings; (3) two dismissed DVRO requests; (4) five judicial

disqualification requests that were stricken; and (5) ten unsuccessful

proceedings in the Court of Appeal and Supreme Court.

The court also imposed a prefiling order under section 391.7. The

prefiling order stated that “unless represented by an attorney,” Benjamin

was “prohibited from filing any new litigation in the courts of California

without approval of the presiding justice or presiding judge of the court in

which the action is to be filed.”

Two days later, Benjamin filed a declaration accusing Judge Powazek

of “absolute disregard for the law” and stating that “[s]eeking Mr. Powazek’s

removal from my case because he is a liar is not frivolous” because “I have

proven him a liar.” Benjamin asserted: “What this is all about is

Mr. Powazek writing Orders because he does not like anyone who questions

him.”

After filing another notice of appeal, Benjamin requested permission to

appeal. The presiding justice of this court granted his request in a written

order stating: “The appeal is limited to the November 2, 2021 order(s)

declaring appellant a vexatious litigant and imposing a prefiling order.”

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DISCUSSION

A. Standard of Review

We review a trial court’s order declaring a party to be a vexatious

litigant for substantial evidence. (Goodrich v. Sierra Vista Regional Medical

Center (2016) 246 Cal.App.4th 1260, 1265 (Goodrich).) We must presume the

order is correct and imply findings necessary to support the vexatious litigant

designation. (Id. at pp. 1265-1266.) A reversal is required only if there is no

substantial evidence to imply findings in support of the vexatious litigant

designation. (Id. at p. 1266.)

B. Vexatious Litigant Statutes

The vexatious litigant statutes (§§ 391-391.7) are designed to curb

misuse of the court system by those acting in propria persona who repeatedly

file groundless lawsuits or motions to relitigate issues previously decided

against them. (Goodrich, supra, 246 Cal.App.4th at p. 1265.) Section 391,

subdivision (b) provides four alternative definitions of a vexatious litigant,

including 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.” (§ 391, subd. (b)(3).)

Section 391.7, subdivision (a) provides that the court may “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 justice or presiding judge of the court where the

litigation is proposed to be filed.”

C. Analysis of Vexatious Litigant Order

As noted, the trial court declared Benjamin a vexatious litigant under

section 391, subdivision (b)(3) based on its finding that he had repeatedly

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filed unmeritorious motions, pleadings, and other papers, and had engaged in

tactics that were frivolous. Specifically, the court relied on Benjamin’s

unsuccessful ex parte applications, the dismissed contempt proceedings, the

dismissed DVRO requests, the multiple requests for disqualification of Judge

Powazek, and the 10 unsuccessful appeals and writ petitions.

For several reasons, Benjamin has failed to meet his burden of

demonstrating any error. First, Benjamin has failed to provide us with an

adequate record on appeal. A judgment or order of the lower court is

presumed correct, and error must be affirmatively shown. (In re Julian R.

(2009) 47 Cal.4th 487, 498-499.) Consequently, the appellant has the burden

of providing an adequate record. (Bowser v. Ford Motor Co. (2022)

78 Cal.App.5th 587, 610.) Failure to provide an adequate record on appeal

requires that the issue be resolved against the appellant. (Ibid.)

Although Benjamin argues on appeal that he did not repeatedly file

unmeritorious or frivolous pleadings, the appellate record does not include

most of the pleadings the trial court relied on in reaching a contrary

conclusion. Specifically, the record does not include the dismissed contempt

charges, the dismissed DVRO requests, the multiple requests for

disqualification of Judge Powazek, the unsuccessful writ petitions and

appellate filings, and many of Benjamin’s unsuccessful ex parte applications.

Benjamin cannot overcome the presumption that the trial court’s ruling

is correct without including the relevant pleadings in the appellate record.

We would have to review these pleadings to determine whether the trial

court properly found them to be unmeritorious. And the fact that Benjamin

is self-represented does not excuse his failure to provide an adequate

appellate record. Self-represented litigants must follow the same rules of

procedure as litigants who are represented by counsel. (Rappleyea v.

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Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122

Cal.App.4th 1229, 1247.)

Second, even if we were to decide the merits of the appeal based on the

limited record before us, there would still be ample evidence to support the

trial court’s order. In one four-month period, Benjamin filed five repetitive

requests seeking disqualification of Judge Powazek, as well as three

repetitive writ petitions seeking the same relief. After they were all denied,

he filed a sixth statement of disqualification just days before he was declared

a vexatious litigant. In his appellate briefing, Benjamin makes no effort to

justify these duplicative requests for disqualification, explain why it was

proper for him to relitigate the same disqualification issue multiple times, or

demonstrate that any of these requests or writ petitions had a reasonable

probability of success.

Our independent review of the trial court’s orders convinces us that

Benjamin had no reasonable probability of prevailing on any of his

disqualification requests. As Judge Powazek ruled, “the fact that [he] ruled

in a particular way, or in a way [Benjamin] believes is erroneous, is

insufficient to constitute legal evidence of prejudice, bias, or the inability to

be impartial.” (Brown v. American Bicycle Group, LLC (2014)

224 Cal.App.4th 665, 674 [“[t]he mere fact that the trial court issued rulings

adverse to [plaintiff] on several matters in this case, even assuming one or

more of those rulings were erroneous, does not indicate an appearance of

bias, much less demonstrate actual bias”].) No matter how much they may

have upset Benjamin, these rulings and the opinions Judge Powazek formed

and expressed during the course of the judicial proceedings do not even

arguably amount to a disqualifying bias. (Moulton Niguel Water Dist. v.

Colombo (2003) 111 Cal.App.4th 1210, 1219-1220.) “When making a ruling, a

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judge interprets the evidence, weighs credibility, and makes findings. In

doing so, the judge necessarily makes and expresses determinations in favor

of and against parties. How could it be otherwise?” (Id. at p. 1219.) And it is

settled that a litigant cannot disqualify a judge who has issued adverse

rulings just by filing a lawsuit against him. (First Western Development

Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 867.)

There was certainly no reasonable basis for Benjamin to file multiple,

repetitive statements of disqualification. The statute itself provides: “A

party may file no more than one statement of disqualification against a judge

unless facts suggesting new grounds for disqualification are first learned of or

arise after the first statement of disqualification was filed. Repetitive

statements of disqualification not alleging facts suggesting new grounds for

disqualification shall be stricken by the judge against whom they are filed.”

(§ 170.4, subd. (c)(3).) Benjamin does not contend that he had any new

grounds for disqualification justifying his multiple requests. Thus, the record

supports a finding that Benjamin’s duplicative requests for disqualification

were unmeritorious.

These requests for disqualification would be enough to sustain the trial

court’s order finding Benjamin to be a vexatious litigant under section 391,

subdivision (b)(3)—even without considering any of his other unsuccessful

requests for relief. An essential purpose of the statute is “to curb misuse of

the court system by those acting as self-represented litigants who repeatedly

relitigate the same issues.” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635,

italics added.) A litigant’s “persistent and obsessive use of judicial

challenges . . . without regard to timeliness or validity, rises to the level of a

frivolous litigation tactic that qualifies them as vexatious litigants under

section 391, subdivision (b)(3) . . . .” (Id. at p. 639.) And five (or six)

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duplicative requests for disqualification plus three repetitive writ petitions

seeking disqualification are more than enough. Indeed, “as few as three

motions might form the basis for a vexatious litigant designation where they

all seek the exact same relief, which has already been denied . . . .”

(Goodrich, supra, 246 Cal.App.4th at p. 1266; see also id. at p. 1268 [holding

litigant “repeatedly” filed unmeritorious motions within the meaning of

subdivision (b)(3) by filing three motions attempting to relitigate final

judgment].)

Benjamin has also failed to demonstrate any error in the trial court’s

reliance on his other unsuccessful filings. The record shows that Benjamin

repeatedly filed ex parte applications to relitigate issues already decided and

make accusations of allegedly “abusive” treatment by the court. Benjamin

also ignored repeated warnings from the court about his improper use of ex

parte applications. Even the ones Benjamin has chosen to include in the

appellate record contain patently frivolous requests for relief, such as “relief

from the abusive clutches of Dept 19” and a request to “please stop raping my

family.” Likewise, Benjamin has shown no error in the trial court’s reliance

on the three dismissed contempt proceedings, the two dismissed DVRO

requests, and the multiple unsuccessful writ petitions and appeals to make

its ruling under section 391, subdivision (b)(3).

Benjamin asserts that not every one of his multiple requests for relief

was denied. As a matter of law, however, this does not preclude a finding

that Benjamin is a vexatious litigant within the meaning of section 391,

subdivision (b)(3). (See, e.g., In re Luckett (1991) 232 Cal.App.3d 107, 109

[finding individual was vexatious litigant notwithstanding “his successes in

certain lawsuits”].)

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Finally, although the trial court only relied on section 391, subdivision

(b)(3) as a basis for declaring Benjamin to be a vexatious litigant, its ruling

may also be affirmed under the alternative definition contained in

subdivision (b)(1). (See Perlin v. Fountain View Management, Inc. (2008)

163 Cal.App.4th 657, 663-664 [appealed order must be sustained if correct on

any theory of law applicable to the case].) Subdivision (b)(1) defines a

vexatious litigant to include someone 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 . . . finally determined adversely to the person . . . .” (§ 391, subd.

(b)(1).)

As a self-represented litigant, Benjamin filed three writ petitions

challenging the trial court’s disqualification rulings in 2021. We summarily

denied all three petitions. When a writ petition is the exclusive means for

obtaining appellate review of the challenged order, a summary denial “is

properly considered a final determination of litigation for purposes of

qualifying for vexatious litigant status under section 391, subdivision (b)(1).”

(Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1173 (Fink).) This applies to

“a ruling on a motion to disqualify a judge under section 170.3, subdivision

(d).” (Id. at p. 1172.) Such a ruling “is not an appealable order and may be

reviewed only by a writ of mandate . . . .” (§ 170.3, subd. (d).) Thus, our

summary denials of these three writ petitions each qualify as final adverse

determinations under section 391, subdivision (b)(1).5

5 Our summary denials of Benjamin’s other writ petitions do not qualify

under subdivision (b)(1), because they pertained to orders for which writ

relief was not the exclusive means of obtaining appellate review. (Fink,

supra, 180 Cal.App.4th at pp. 1172-1173.)

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Benjamin also filed three appeals as a self-represented litigant in 2020

through 2021 (not including this one). He abandoned one of these appeals; he

dismissed a second appeal after full briefing; and we dismissed the third

appeal on the basis that it was barred by Benjamin’s abandonment of his

prior appeals.

The word “litigation” in section 391, subdivision (b)(1) includes appeals.

(Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406 (Garcia).) Moreover, “[a]

litigation is finally determined adversely to a plaintiff if he does not win the

action or proceedings he began, including cases that are voluntarily

dismissed by a plaintiff.” (Ibid.) “A party who repeatedly files baseless

actions only to dismiss them is no less vexatious than the party who follows

the actions through to completion.” (Tokerud v. Capitolbank Sacramento

(1995) 38 Cal.App.4th 775, 779.) Thus, the dismissal or abandonment of each

of the three prior appeals Benjamin filed in 2020 through 2021 also qualify

under section 391, subdivision (b)(1). (See Fink, supra, 180 Cal.App.4th at

pp. 1173-1174 [appeals dismissed as untimely qualified as final

determination of litigation under § 391, subd. (b)(1)].)

Benjamin’s three unsuccessful appeals plus his three unsuccessful writ

petitions on judicial disqualification yield a total of six qualifying adverse

determinations against him under section 391, subdivision (b)(1). The record

therefore establishes that Benjamin commenced more than five litigation

matters in propria persona within the seven-year period preceding the trial

court’s order that were finally determined adversely to him. (§ 391, subd.

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(b)(1).) Accordingly, the trial court’s order declaring him a vexatious litigant

was proper under section 391, subdivision (b)(1) and (3).6

Like the trial court, we have no reason to question Benjamin’s bond

with his son. We also recognize that heightened emotions often come into

play in a child custody dispute. But a self-represented litigant is still

expected to play by the rules. He may not take out his frustrations on the

judicial system by obsessively filing unmeritorious and repetitive motions,

pleadings, appeals, and writ petitions seeking to relitigate matters already

decided. Such vexatious conduct imposes unreasonable burdens and costs on

the opposing party and the courts—which the vexatious litigant statutes are

designed to prevent.

6 We need not decide whether any of Benjamin’s unsuccessful petitions

for review in the California Supreme Court or his withdrawn DVRO and

contempt requests also qualify under section 391, subdivision (b)(1). We also

do not rely on the federal court’s dismissal of his lawsuit against Judge

Powazek and others, as we cannot determine from the record whether the

dismissal order is still subject to appellate review. (See Garcia, supra,

231 Cal.App.4th at p. 407, fn. 5 [“A particular litigation is finally determined

when avenues for direct review (appeal) have been exhausted or the time for

appeal has expired.”].)

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DISPOSITION

The order declaring Benjamin to be a vexatious litigant and the

prefiling order are affirmed. Respondent shall recover her costs on appeal.

BUCHANAN, J.

WE CONCUR:

McCONNELL, P. J.

DO, J.

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