Blizzard Energy v. Schaefers

Filed 11/29/22 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BLIZZARD ENERGY, INC., 2d Civil No. B314740 (Super. Ct. No. 17CVP-0266) Plaintiff and Appellant, (San Luis Obispo County)

v.

BERND SCHAEFERS,

Defendant and Respondent.

We hold that, for purposes of the vexatious litigant statute, a defendant who files a cross-complaint has commenced a separate, distinct, and independent cause of action. Thus, respondent’s cross-complaint in a Kansas action counts as one of the “five litigations” required for a vexatious litigant finding under Code of Civil Procedure section 391, subdivision (b)(1).1 The statute targets a person. It does not matter where the litigation was filed. Blizzard Energy, Inc., appeals from an order denying its motion to declare respondent Bernd Schaefers a vexatious litigant and prohibit him “from filing any new litigation in

All statutory references are to the Code of Civil Procedure 1

unless otherwise stated.

propria persona in the California courts without first obtaining leave of the presiding judge of the court in which the litigation is proposed to be filed.” We reverse because the order was based on the trial court’s erroneous interpretation of section 391, subdivision (b)(1). The trial court concluded that the statute does not apply to prior litigation commenced by the filing of a cross- complaint. It does apply. This is the third time that the parties have come before this court. (See Blizzard Energy, Inc. v. Schaefers (2020) 44 Cal.App.5th 295; Blizzard Energy, Inc. v. Schaefers (2021) 71 Cal.App.5th 832.) The Order Is Appealable Appellant’s motion was authorized by section 391.7, subdivision (a), which provides: “[T]he 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 justice or presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court.” “[T]here is no question that the prefiling order contemplated by section 391.7, subdivision (a) is an injunction.” (Luckett v. Panos (2008) 161 Cal.App.4th 77, 85.) “[A]n order granting . . . or refusing to grant . . . an injunction” is appealable. (§ 904.1, subd. (a)(6).) Therefore, the order denying appellant’s motion is appealable as an order refusing to grant an injunction. (See In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1347.)