Filed 8/19/22 Brookshire v. Albers Yze, LLC CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

C.L. BROOKSHIRE,

Plaintiff and Appellant,

v.

ALBERS YZE, LLC,

Defendant and Respondent.

 B306461

 (Los Angeles County

 Super. Ct. No. 18STCV03281)

APPEALSfrom orders of the Superior Court of 

Los Angeles County, Stephanie M. Bowick, Judge. Affirmed;

dismissed as moot.

C.L. Brookshire, in pro. per., for Plaintiff and 

Appellant.

No appearance for Defendant and Respondent.
2

INTRODUCTION

Faced with a motion to have him declared a vexatious 

litigant, appellant C.L. Brookshire voluntarily dismissed this 

action without prejudice. The trial court proceeded to hear 

and grant the motion, declaring Brookshire a vexatious 

litigant on three independent grounds, and issuing a 

prefiling order under Code of Civil Procedure section 391.7.1 

Brookshire did not appeal the prefiling order. Instead, he 

filed a series of repetitive motions challenging the order, 

including three motions to vacate the order under section 

473, subdivision (d). The court denied Brookshire’s first 

motion to vacate in a detailed decision after hearing, 

concluding, inter alia, that his voluntary dismissal of the 

action had not deprived the court of jurisdiction to enter the 

prefiling order. The court struck Brookshire’s second motion 

to vacate because, inter alia, Brookshire personally filed the 

motion without authorization from his then-counsel (who 

was later granted leave to withdraw from the 

representation). The court issued an order to show cause 

(OSC) why Brookshire should not be sanctioned for 

personally filing documents while represented by counsel, in 

violation of an earlier order of the court prohibiting such 

filings. Brookshire appealed the OSC. While the appeal was 

pending, the court found sanctions were unwarranted and 

discharged the OSC.

1 Undesignated statutory references are to the Code of Civil 

Procedure.
3

The court struck a verified statement of 

disqualification filed by Brookshire, concluding, inter alia, 

that he had not served the statement on the court. The court 

also struck Brookshire’s third motion to vacate the prefiling 

order, concluding, inter alia, that it was a defective motion 

for reconsideration of the court’s ruling denying his first 

motion to vacate on its merits. Brookshire responded by 

filing a motion to vacate the order striking his third motion 

to vacate. The court issued an order striking this motion, 

too, again concluding the motion was a defective motion for 

reconsideration (the Strike Order). Brookshire appealed the 

Strike Order.

On appeal, Brookshire contends: (1) the Strike Order is 

void because it was entered after Brookshire voluntarily 

dismissed the action; (2) alternatively, the Strike Order is 

void because it was entered after the court impliedly 

consented to disqualification, by failing to timely respond to 

a statement of disqualificationallegedly served on it; and 

(3) the Strike Order constituted an abuse of discretion and 

violated Brookshire’s due process right to be heard on his 

third motion to vacate the prefiling order. Brookshire raises 

no issue concerning his appeal from the since-discharged 

OSC. We dismiss as moot the appeal from the OSC. Finding 

no jurisdictional or other defect in the Strike Order, we 

affirm.
4

PROCEEDINGS BELOW

A. Prefiling Order

In November 2018, Brookshire filed his in pro. per. 

complaint in this action against respondent Albers YZE, 

LLC, seeking to enjoin his then-pending eviction from an 

apartment. In December 2018, respondent filed a motion to 

have Brookshire declared a vexatious litigant under section 

391. Respondent’s motion sought two complementary 

remedies under separate statutes: (1) an order under section 

391.1, requiring Brookshire to furnish security to continue 

litigating the action; and (2) a prefiling order under section 

391.7, requiring Brookshire to obtain judicial permission 

before bringing future litigation in pro. per. In January 

2019, before the scheduled hearing on respondent’s 

vexatious litigant motion, Brookshire voluntarily dismissed 

the action without prejudice. As a result, the courttook the 

hearing off calendar. 

Later in January 2019, respondent applied ex parte for 

an order resetting the hearing on that portion of its

vexatious litigant motion seeking a prefiling order under 

section 391.7 (respondent abandoned its request for an order

requiring securityunder section 391.1). Respondent argued 

that as held in Pittman v. Beck Park Apartments Ltd. (2018) 

20 Cal.App.5th 1009, 1022 (Pittman), a plaintiff’s voluntary 

dismissal of an action does not deprive the court of 
5

jurisdiction to enter a prefiling order. The court placed the

hearing back on calendar.

2 

Brookshire opposed the vexatious litigant motion

(which is not in the record), raising various challenges to 

respondent’s evidence of Brookshire’s vexatious litigation 

conduct. Brookshire argued certain prior litigations had not 

been finally determined adversely to him, as required to 

support a vexatious-litigant finding under section 391, 

subdivision (b)(1), because they had been resolved by a 

global settlement agreement. In support, Brookshire relied 

on his exhibit A (submitted in duplicate with his supporting 

declaration and request for judicial notice), comprising: (1) a 

two-page Notice of Settlement in one prior litigation, dated 

January 24, 2019, and referring to an attached Notice of 

Global Settlement Agreement (which Brookshire omitted 

from his exhibit); and (2) the first and final pages of an 

eight-page settlement agreement concerning two other prior 

litigations, bearing signatures by Brookshire (dated March 

23, 2018) and the defendants’ counsel (undated). At the 

March 2019 hearing on the vexatious litigant motion, 

Brookshire acknowledged he had omitted the remaining six 

2

The court found respondent had given Brookshire proper 

notice of the ex parte application, presumably relying on the 

declaration of notice executed by respondent’s counsel and 

submitted with the application. On appeal, Brookshire asserts 

notice was not given. But he neither addresses the contrary 

finding and declaration, nor suggests that his purported lack of 

notice is relevant to any issue on appeal.
6

pages of the latter settlement agreement, stating the 

agreement was confidential. The court heard argument from 

both parties and took the matter under submission. 

In April 2019, the court issued a prefiling order under 

section 391.7, along with a minute order setting forth its 

reasoning in detail. On the basis of respondent’s evidence of 

Brookshire’s vexatious conduct in prior litigations, the court 

found Brookshire was a vexatious litigant under each of the 

first three subdivisions of section 391, subdivision (b).

3 The 

court denied Brookshire’s request for judicial notice of the 

settlement documents submitted as exhibit A, explaining: 

(1) the submitted copy of the Notice of Settlement 

3

“‘Vexatious litigant’ means a person who does any of the 

following: [¶] (1) In 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 . . . . [¶] 

(2) After 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. [¶] (3) 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.” (§ 391, 

subd. (b).)
7

Agreement was incomplete, as it omitted the reportedly 

attached Notice of Global Settlement Agreement; and (2) the 

submitted copy of the eight-page settlement agreement was 

likewise incomplete, as it omitted the middle six pages and 

any term providing for a release, and in any event, there was 

no indication the agreement had been filed with the court in 

the underlying litigations (the court noted defense counsel’s 

signature was undated). For the same reasons, the court 

rejected Brookshire’s related argument that as a result of 

the global settlement allegedly reflected in exhibit A, the 

underlying litigations had not been finally adversely 

determined against him. The court concluded: “Given the 

extensive nature of Brookshire’s court filings that have been 

determined adversely to him and frivolous tactics . . . solely 

intended to cause unnecessary delay, the Court finds that a 

pre-filing order is warranted pursuant to Code of Civil 

Procedure section 391.7(a).” The court denied respondent’s 

abandoned request for an order requiring security under 

section 391.1, reasoning that Brookshire’s voluntary 

dismissal of the action had rendered this request moot. 

Brookshire did not appeal the prefiling order.4

4 We need not address Brookshire’s assertions of error in the 

prefiling order, which is not properly before us on appeal. (See In 

re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1347 

[by failing to pursue appeal from prefiling order, vexatious 

litigant lost right to challenge it on appeal].) However, in our 

discussion below rejecting his identical jurisdictional challenge to 

the Strike Order, we reject Brookshire’s contention that his 

(Fn. is continued on the next page.)
8

B. Motion for Reconsideration

In May 2019, Brookshire filed a motion for 

reconsideration of the prefiling order under section 1008, 

subdivision (a). Brookshire argued, inter alia, that the court 

erred in rejecting his reliance on the settlement documents 

submitted as exhibit A. Brookshire falsely asserted that the 

court’s ruling overlooked exhibit A and instead relied on 

Internet court records, which did not then reflect the alleged 

global settlement (but had since been updated to reflect it). 

Although Brookshire reserved and noticed a July 30, 

2019 hearing on his motion for reconsideration, he failed to 

appear on that date, without explanation. Implicitly 

denying the motion, the court ordered the motion off 

calendar. Seven weeks later, Brookshire filed notice that he 

had retained counsel, who applied ex parte to have the 

motion for reconsideration placed back on calendar, claiming 

neither he nor Brookshire had appeared at the hearing 

because each had believed the other would appear. The 

court denied the application, finding Brookshire hadunduly 

delayed in raising the issue. 

C. First Motion to Vacate

In October 2019, Brookshire filed his first motion to 

vacate the prefiling order under section 473, subdivision (d). 

Brookshire renewed his argument that the court erred in 

voluntary dismissal of the action deprived the court of 

jurisdiction to enter the prefiling order.
9

relying on Internet court records that omitted his alleged 

global settlement of several underlying litigations, 

characterizing this omission as a clerical error of “the clerk’s 

department at the appellate court,” and arguing the clerical 

error was subject to correction by the trial court under 

section 473, subdivision (d). Additionally, Brookshire argued 

his voluntary dismissal of the action had deprived the court 

of jurisdiction to hear respondent’s vexatious litigant motion, 

rendering the prefiling order void. Respondent opposed the 

motion to vacate, again arguing that under Pittman, supra, 

20 Cal.App.5th 1009, the court had retained jurisdiction 

notwithstanding the voluntary dismissal. 

In November 2019, the court held a hearing on 

Brookshire’s first motion to vacate, at which Brookshire was 

represented by counsel. The court denied the motion in a 

detailed minute order. Citing Pittman, the court concluded 

the prefiling order was not void for lack of jurisdiction, 

notwithstanding Brookshire’s voluntary dismissal of the 

action. The court rejected Brookshire’s argument concerning 

the appellate clerk’s error in failing to timely record 

settlement documents, explaining: “[Section 473, subdivision 

(d)] allows this Court to correct clerical errors made by this 

Court in the cases before it, not clerical mistakes by the clerk 

of the Court of Appeal. [Citations.] Nevertheless, the Court 

notes that in opposition to the motion to declare him a 

vexatious litigant, Plaintiff presented various arguments 

regarding global settlements, yet failed to present a complete 

Notice of Settlement (Exhibit A) in support of his opposition 
10

and request for judicial notice. The Court considered 

Plaintiff’s arguments regarding the globally settled cases in 

ruling on that motion. . . . Hence, the Court finds that 

Plaintiff is essentially attempting to improperly present and 

argue his motion for reconsideration relating to the Court’s 

vexatious litigant determination once again.” Finally, the 

court declined to vacate the prefiling order on its own 

motion. Brookshire did not appeal the denial of his first 

motion to vacate.

Later in November 2019, the court issued an order 

prohibiting Brookshire from personally filing documents 

while represented by counsel, and warning that any 

violation of the order would result in the issuance of an OSC 

why Brookshire should not be sanctioned.5 

D.Second Motion to Vacate, OSC, and Statement 

of Disqualification

In February 2020, Brookshire filed a second motion to 

vacate the prefiling order under section 473, subdivision (d), 

purportedly signed by his counsel. Brookshire renewed his 

arguments that: (1) the prefiling order was void because it 

5

It appears this order might have been prompted by 

Brookshire’s personally filing, while represented by counsel, an in 

pro. per. request for court reporting services at the scheduled

hearing on his first motion to vacate. In denying the motion, the 

court noted Brookshire’s counsel neither delivered a courtesy 

copy of the in pro. per. request with his motion papers, nor 

mentioned the request during the hearing. 
11

was entered after he voluntarily dismissed the action; and 

(2) the prefiling order was marred by a clerical error that 

had omitted settlement documents from court records. 

Brookshire additionally argued the prefiling order (an 

injunction) should be dissolved under section 533, but 

asserted no ground for relief under that statute other than 

“the fact the [prefiling] order should have not be[en] granted 

in the first instance,” for the same reasons he argued in 

support of relief under section 473.6

On April 15, 2020, Brookshire’s counsel filed a request 

to strike Brookshire’s second motion to vacate, declaring he 

(counsel) had not drafted, signed, or otherwise authorized 

the motion. The next day, Brookshire filed a request to 

withdraw his counsel’s request, asserting without 

explanation that the request had been filed in error. The 

same day, Brookshire’s counsel applied ex parte for leave to 

withdraw as counsel. The court scheduled a hearing on 

counsel’s motion to withdraw, along with his request to 

strike the second motion to vacate. 

On April 30, 2020, the court issued an OSC why 

Brookshire should not be sanctioned for personally filing 

documents -- including his second motion to vacate, and his 

6

Section 533 authorizes a court to modify or dissolve an 

injunction “upon a showing that there has been a material 

change in the facts upon which the injunction or temporary 

restraining order was granted, that the law upon which the 

injunction or temporary restraining order was granted has 

changed, or that the ends of justice would be served . . . .”
12

request to withdraw his counsel’s request to strike the 

motion -- while represented by counsel, in violation of its 

November 2019 order prohibiting such filings. Brookshire 

filed a notice of appeal from the OSC. Brookshire also filed 

in pro. per. objections to the court’s jurisdiction to issue the 

OSC (and other orders) after his voluntary dismissal of the 

action. 

On June 25, 2020, Brookshire filed an in pro. per., 

verified “challenge for cause,” seeking to disqualify the court 

(Judge Stephanie M. Bowick) and setting forth facts

allegedly showing the court was biased against him. 

According to the attached certificates of service, Brookshire

purportedly served the challenge by email, and its 

supporting documents by mail. Five days later, the court 

issued an order construing Brookshire’s challenge as a 

verified statement of disqualification, and striking the 

statement on two grounds. First, the court struck the 

statement for lack of service, finding: “The Court . . . has not 

received service of the Statement; therefore, Plaintiff failed 

to accomplish proper service as required by Code of Civil 

Procedure section 170.3(c)(1) (‘Copies of the statement . . . 

shall be personally served on the judge alleged to be 

disqualified, or on his or her clerk, provided that the judge is 

present in the courthouse or in chambers.’).” The court also 

struck the statement on the independent ground that it 

demonstrated on its face there were no legal grounds for 

disqualification, as its allegations of bias were improperly 

based on dissatisfaction with the court’s rulings and other 
13

invalid grounds. In addition to striking the statement, the 

court signed a verified answer denying Brookshire’s 

allegations of bias. The court’s order reminded Brookshire of 

his right to seek review by writ of mandate in the Court of 

Appeal. Brookshire did not seek writ review.

On July 2, 2020, the court held a hearing on the OSC,

Brookshire’s counsel’s request to strike the second motion to 

vacate, and counsel’s motion to withdraw. The reporter’s 

transcript of this hearing is not in the record. At the 

conclusion of the hearing, the court discharged the OSC, 

finding sanctions were unwarranted because Brookshire had 

not received notice of the court’s order prohibiting him from 

personally filing documents while represented by counsel. 

The court took the other matters under submission.

On July 9, 2020, the court issued an order striking 

Brookshire’s second motion to vacate and granting 

Brookshire’s counsel leave to withdraw. The court concluded 

Brookshire had improperly drafted, signed, and filed the 

motion without authorization from counsel, as Brookshire 

had admitted at the hearing. In response to Brookshire’s 

jurisdictional objections, the court -- again citing Pittman, 

supra, 20 Cal.App.5th 1009 -- concluded “trial courts retain 

jurisdiction over ancillary/collateral proceedings, including 

motions regarding orderly court proceedings, even after 

dismissal or trial of a case.” Finally, quoting Even Zohar 

Construction & Remodeling, Inc. v. Bellaire Townhouses, 

LLC (2015) 61 Cal.4th 830, 839 (Even Zohar), the court 

concluded, “It appears that Plaintiff is ‘endlessly bring[ing] 
14

the same motions over and over’ in violation of Code of Civil 

Procedure section 1008.” (See id. at 838-840 [section 1008 

limits courts’ jurisdiction to consider parties’ motions for 

reconsideration or renewed motions, serving legislative

purpose “‘“to conserve judicial resources by constraining 

litigants who would endlessly bring the same motions over 

and over”’”].)

E. Third Motion to Vacate and Strike Order

A week after the court struck his second motion to 

vacate (on July 17, 2020), Brookshire filed a third motion to 

vacate the prefiling order under section 473, subdivision (d). 

His third motion to vacate was nearly identical to his first 

and second, renewing his arguments that: (1) the prefiling 

order was void because it was entered after he voluntarily 

dismissed the action; (2) the prefiling order was marred by a 

clerical error concerning the omission of settlement 

documents from court records; and (3) the prefiling order 

should be dissolved under section 533 because it should not

have been granted in the first instance. 

On July 21, 2020, the court issued an order striking 

Brookshire’s third motion to vacate. Observing the motion 

repeated the arguments made in Brookshire’s first motion to 

vacate, which the court had heard and denied in a detailed 

decision, the court concluded the third motion to vacate was 

“essentially an untimely motion for reconsideration” under 

section 1008, as well as “improper, frivolous and repetitive of 

the [first] motion to vacate denied on November 21, 2019.” 
15

Again citing Even Zohar, supra, 61 Cal.4th 830, the court 

repeated its observation that Brookshire appeared to be 

violating section 1008 by endlessly bringing the same 

motion. The court declined to hold a hearing on the motion, 

concluding no hearing was required because the motion was 

not a critical pretrial matter. 

In August 2020, Brookshire filed a motion to vacate the 

order striking his third motion to vacate. Brookshire 

renewed his prior arguments. He additionally argued the 

court lacked authority to strike his third motion to vacate, 

“even if it was a repeat motion filed and heard on November 

21, 2019.” Although he thus appeared to acknowledge his 

third motion to vacate was repetitive of his first, he argued 

the court erred in considering it a defective motion for 

reconsideration under section 1008. 

In October 2020, the court issued the Strike Order, 

striking Brookshire’s most recent motion as an exercise of 

the court’s “inherent power to control proceedings and 

prevent the misuse of process.” For the same reasons it had 

struck Brookshire’s third motion to vacate, the court 

concluded the new motion was “essentially an untimely 

motion for reconsideration” under section 1008, as well as 

“improper, frivolous and repetitive of the previous 

arguments set forth in his [first] motion to vacate that was 

denied on November 21, 2019, and the pleadings [including 

his second motion to vacate] that were stricken from the 

record on July 21, 2020.” The court again concluded the 

motion was not a critical pretrial matter requiring a hearing, 
16

adding: “The Plaintiff has taken full opportunity and 

advantage to brief all his arguments and objections 

regarding the Court’s previous rulings, decisions and 

jurisdiction over these matters since the order declaring him 

a vexatious litigant was issued on April 15, 2019. No 

additional factual or legal information, or arguments at a 

hearing would change the outcome here.” 

In November 2020, Brookshire filed objections to the 

Strike Order, arguing the order was void because it was 

entered after the court impliedly consented to 

disqualification, by failing to timely respond to a verified 

statement of disqualification allegedly served on it. 

Brookshire acknowledged that in its June 30 order striking 

the verified statement of disqualificationhe had filed on 

June 25, the court expressly found it had not been served. 

“[I]n direct contradiction to” this finding, Brookshire argued 

the court had been served with a 133-page statement of 

disqualification on June 26, 2020. In support, however, 

Brookshire cited only a single-page exhibit to his supporting 

declaration. Although this exhibit was stamped received by 

the court on June 26, 2020, it lacked any case caption, and 

stated only: “Challenge for cause per CCP 170.1 and 170.3 

[¶] 6/25/20 [¶] Attention Dept[.] 19 [¶] Judge Bowick [¶] 

Stanley Mosk Courthouse.” Thus, the exhibit did not set 

forth -- or verify -- any facts constituting grounds for 

disqualification. Brookshire represented that “according to 

the [reporter’s transcript] from July 2, 2020,” he brought the 

court’s attention to its alleged error in overlooking the 
17

documents served on June 26 (instead, striking “the wrong 

document” filed on June 25), and the court expressly 

declined to issue any order concerning the June 26

documents. He did not submit the July 2 reporter’s 

transcript as an exhibit.

Days after filing his objections to the Strike Order, 

Brookshire timely appealed the order. In both of his 

appeals, challenging the OSC and the Strike Order 

respectively, Brookshire elected to proceed without a record 

of the oral proceedings.7

DISCUSSION

Before addressing the orders from which Brookshire 

appeals, we first address several requests Brookshire filed in 

this court after filing his appellate brief.

A. Appellate Requests

1. Request for Independent Review

On July 27, 2022, months after his appellate brief 

raised the contentions addressed below, Brookshire filed a 

request that we independently examine the record for error 

pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). 

We deny the request. Wende does not apply in civil appeals. 

(Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs 

7

The court subsequently overruled Brookshire’s objections to 

the Strike Order, stating it had previously considered and 

rejected his claim of disqualification. 
18

(The Rutter Group 2021) Ch. 8-C ¶ 8:122.) The principal 

cases on which Brookshire relies were criminal appeals, and 

acknowledged that even criminal defendants are not entitled 

to Wende review on appeal from the denial of postconviction 

relief. (See People v. Gallo (2020) 57 Cal.App.5th 594, 598-

599; People v. Flores (2020) 54 Cal.App.5th 266, 268-269, 

271, 273-274.) In the civil case on which Brookshire relies, 

the appellate court merely “indulged” the appellant by 

conducting an independent review of the record, “even 

though” he was not entitled to it. (Foster v. Civil Service 

Com. (1983) 142 Cal.App.3d 444, 449.) Assuming, arguendo, 

we have discretion to similarly indulge Brookshire’s request 

for an independent review, we decline to exercise that 

discretion.

2. Requests Related to Oral Argument

On June 29, 2022, Brookshire filed a request that we 

issue a tentative decision in advance of oral argument, 

acknowledging that we do not issue tentative decisions 

pursuant to our usual procedures. On August 1, 2022, 

Brookshire filed a request that we arrange for oral argument 

to be transcribed by a court reporter. On August 4, 2022, we 

issued an order denying the latter request, but noting: “The 

clerk shall provide an audio sound recording of the 

proceedings to appellant without charge.” On August 5, 

2022, Brookshire filed a motion requesting that we order the 

audio recording of oral argument to be considered the 

“‘Official Verbatim Record’” of the proceedings (or clarify 
19

that we ordered as much on August 4, which we did not). On 

August 10, 2022 (the day before oral argument), Brookshire 

filed a notice that we had not yet addressed his pending 

requests.

We deny as moot Brookshire’s request for issuance of a 

tentative decision. We note that Brookshire failed to show 

good cause for his requested exception to our usual

procedures.

We also deny Brookshire’s request that we order the 

audio recording of oral argument to be considered the 

“‘Official Verbatim Record’” of the proceedings. Although the 

precise meaning of this request is unclear, Brookshire 

appears to request that we order the audio recording to be 

included in the record that may properly be considered on 

review by a higher court. He cites no authority suggesting 

we have the power to determine the material a higher court 

may consider, and no such power was implied in Jameson v. 

Desta (2018) 5 Cal.5th 594, on which Brookshire relies.8

8

There, our Supreme Court invalidated a superior court 

policy that allowed reporter’s transcripts to be prepared at the 

expense of those litigants who could afford the services of private 

court reporters, but failed to arrange for comparable services to 

be provided to indigent litigants. (Jameson v. Desta, supra, 5 

Cal.5th at 599.) The Court reasoned that the policy created an 

unfair disparity between indigent and wealthier litigants in their 

ability to present appellate courts with verbatim records of trial 

court proceedings, the absence of which would frequently be fatal 

on appeal. (Id. at 608, 622-623.) The Court did not address 

reporter’s transcripts of appellate arguments, much less audio 

(Fn. is continued on the next page.)
20

Indeed, the Supreme Court routinely reviews decisions of the 

Courts of Appeal, even though “none follow a policy of having 

written transcripts prepared.” (Eisenberg et al., Cal.

Practice Guide: Civil Appeals & Writs, supra, Ch. 10-B 

¶ 10:64.1; see also Barriga v. 99 Cents Only Stores LLC

(2020) 51 Cal.App.5th 299, 322, fn. 10 [declining to consider 

transcript of oral argument, where respondent transcribed 

Court of Appeal’s Internet webcast and attached transcript 

to supplemental brief: “we are aware of no authority that 

supports a party privately transcribing oral argument and 

filing a transcript with the court”].)

3. Requests for Judicial Notice

On August 9, 2022, Brookshire filed a request for 

judicial notice, attaching exhibits A through T. The next 

day, he submitted a supplemental request for judicial notice, 

attaching additional exhibits A and B.

We grant Brookshire’s request for judicial notice of 

Jameson v. Desta, supra, 5 Cal.5th 594 (exhibit N). We 

otherwise deny his requests. To the extent Brookshire 

requests notice of judicial opinions that he failed to cite in 

his appellate brief (exhibits B, C, D, F, G, and M to his first 

request for judicial notice), including several nonpublished 

opinions, his requests are improper attempts to circumvent 

appellate rules. (See Eisenberg et al., Cal. Practice Guide: 

recordings thereof. Nor did the Court suggest that its own review 

depended on official verbatim records of appellate arguments.
21

Civil Appeals & Writs, supra, Ch. 5-B ¶ 5:158.1 [“Requests

for judicial notice cannot be used to circumvent appellate 

rules and procedures (such as the prohibition against citing 

unpublished opinions, [citation]). Thus, a court will not take 

judicial notice of a case that was not cited in the briefs”].) 

Brookshire’s remaining materials -- including several 

judicial opinions his brief cited only in challenging the 

prefiling order, which is not properly before us on appeal --

need not be noticed because they are irrelevant to the 

dispositive points addressed below. (See Rutter, supra, 

¶ 5:156.2 [“Appellate courts will not take judicial notice of 

matters irrelevant to the dispositive point on appeal”].) Even 

had we taken notice of these materials, we would decline to 

address them. (See id. ¶ 5:159 [“Although it decides to take 

judicial notice, the appellate court is not obligated to 

consider the noticed matter in resolving the issues on appeal 

and may in fact choose to disregard it”].)

B. The OSC

We dismiss as moot Brookshire’s appeal from the sincedischarged OSC concerning potential sanctions that were 

never imposed. “Generally, an appeal will be dismissed as 

‘moot’ when . . . the occurrence of an event renders it 

impossible for the appellate court to grant appellant any 

effective relief. [Citations.] ‘The legal test for effective relief 

is whether there is a prospect of a remedy that can have a 

practical, tangible impact on the parties’ conduct or legal 

status.’” (Eisenberg et al., Cal. Practice Guide: Civil Appeals 
22

& Writs, supra, Ch. 5-B ¶ 5:22.) Here, shortly after 

Brookshire filed his notice of appeal from the OSC regarding 

potential sanctions, the court found sanctions were 

unwarranted and discharged the order. We discern no 

remaining possibility of effective relief from the OSC. In his 

appellate brief, Brookshire neither requests relief from the 

OSC nor develops any argument concerning it. Thus, even 

had we not dismissed this appeal as moot, we would 

conclude Brookshire forfeited any challenge to the OSC. 

(See People v. Guzman (2019) 8 Cal.5th 673, 683, fn. 7 

[appellant forfeited due process claim by failing to “develop 

the argument”]; In re Phoenix H. (2009) 47 Cal.4th 835, 845 

[“‘“Contentions supported neither by argument nor by 

citation of authority are deemed to be without foundation 

and to have been abandoned”’”].)

C. The Strike Order

On appeal from the Strike Order, Brookshire contends: 

(1) the order is void because it was entered after he

voluntarily dismissed the action; (2) alternatively, the order 

is void because it was entered after the court impliedly 

consented to disqualification, by failing to timely respond to 

a statement of disqualification allegedly served on it; and 

(3) the order constituted an abuse of discretion and violated 

his due process right to be heard on his third motion to 

vacate the prefiling order. We address each contention in 

turn.
23

1. Voluntary Dismissal

“[A] plaintiff’s voluntary dismissal of an action 

generally deprives the court of jurisdiction in the case.” 

(Pittman, supra, 20 Cal.App.5th 1009, 1022.) 

“Notwithstanding this general principle, ‘courts have carved 

out a number of exceptions to this rule in order to give 

meaning and effect to a former party’s statutory rights.’ 

[Citation.] When a postdismissal or postjudgment motion 

involves collateral statutory rights, then the court may 

retain jurisdiction to determine and enforce those rights.” 

(Ibid.) Thus, a court retains jurisdiction after a voluntary 

dismissal to decide, inter alia, a motion for attorney fees or a 

motion for sanctions. (Ibid.) “Like a motion for attorney fees 

or sanctions, a motion to declare a self-represented plaintiff 

a vexatious litigant deals with an ancillary issue and has no 

bearing on the finality of the judgment or dismissal.” (Id. at 

1024.) Further, “[t]o fulfill the statute’s aim of protecting 

future potential litigants, the ability to declare an individual 

a vexatious litigant must survive even after the action has 

been dismissed.” (Id. at 1025.) “A contrary rule would allow 

a litigant to strategically escape a vexatious litigant finding 

altogether by dismissing a party or an action prior to a 

ruling on the vexatious litigant motion and then refiling his 

or her claims in a later proceeding.” (Id. at 1024-1025.) 

Accordingly, “voluntary dismissal of an action does not 

deprive the court of jurisdiction to rule on a pending 

vexatious litigant motion.” (Weil & Brown, Cal. Practice 
24

Guide: Civil Procedure Before Trial (The Rutter Group 2022) 

Ch. 1-G ¶ 1:914, citing Pittman, at 1024-1025.)

We agree with the reasoning and holding of our 

colleagues in Division Seven in Pittman, on which the trial 

court relied. We therefore conclude Brookshire’s voluntary 

dismissal of the action did not deprive the court of 

jurisdiction to rule on respondent’s then-pending motion for 

a prefiling order, or on Brookshire’s subsequent motions 

challenging that ruling. In sum, we conclude the Strike 

Order is not void for lack of jurisdiction.

In arguing to the contrary, Brookshire relies on section 

391.1, arguing Pittman could not “override” the text of that

statute. Brookshire’s reliance on section 391.1 is misplaced, 

because prefiling orders are authorized under a different 

statute, viz., section 391.7. (See Fink v. Shemtov (2010) 180 

Cal.App.4th 1160, 1175-1176 [section 391.1 was inapplicable 

on appeal from prefiling order under section 391.7]; Bravo v. 

Ismaj (2002) 99 Cal.App.4th 211, 222 [same].) Sections 

391.1 and 391.7 provide “two complementary sets of 

remedies.” (Pittman, supra, 20 Cal.App.5th at 1013, fn. 2.) 

Section 391.1 provides: “In any litigation pending in any 

court of this state, at any time until final judgment is 

entered, a defendant may move the court, upon notice and 

hearing, for an order requiring [a vexatious-litigant] plaintiff 

to furnish security . . . .” (§ 391.1, italics added.) Section 

391.7, in contrast, makes no reference to pending litigation 

or entry of judgment, and authorizes entry of a prefiling 

order “[i]n addition to any other relief” authorized by the 
25

vexatious-litigant statutes. (§ 391.7, subd. (a).) “A motion 

for a prefiling order under C.C.P. 391.7 is not required to be 

made during pending litigation, as is a motion for security 

under C.C.P. 391.1. By its very nature, the prefiling order of 

C.C.P. 391.7 affects a vexatious litigant’s future filings.” 

(3 Witkin, Cal. Proc. 6th Actions § 398 (2022), citing Bravo v. 

Ismaj, supra, at 222.) Here, after Brookshire voluntarily 

dismissed the action, respondent abandoned its request for 

an order requiring security under section 391.1, and the 

court denied this request as moot. The court entered only a 

prefiling order under section 391.7. Under the statute and 

case law, it retained jurisdiction to do so. (See Pittman, at 

1024-1025.)

 

2. Alleged Disqualification

“If a judge who should disqualify himself or herself 

refuses or fails to do so, any party may file with the clerk a 

written verified statement objecting to the hearing or trial 

before the judge and setting forth the facts constituting the 

grounds for disqualification of the judge. . . . Copies of the 

statement . . . shall be personally served on the judge alleged 

to be disqualified, or on his or her clerk, provided that the 

judge is present in the courthouse or in chambers.” (§ 170.3, 

subd. (c)(1).) “Within 10 days after the filing or service, 

whichever is later, the judge may file a consent to 

disqualification . . . , or the judge may file a written verified 

answer admitting or denying any or all of the allegations 

contained in the party’s statement . . . .” (§ 170.3, subd. 
26

(c)(3).) Alternatively, “if a statement of disqualification is 

untimely filed or if on its face it discloses no legal grounds 

for disqualification, the trial judge against whom it was filed 

may order it stricken.” (§ 170.4, subd. (b).) “A judge who 

fails to file a consent or answer within the time allowed shall 

be deemed to have consented to his or her disqualification 

. . . .” (§ 170.3, subd. (c)(4); see also Wegner et al., Cal. 

Practice Guide: Civil Trials & Evidence (The Rutter Group 

2021) Ch. 3-A ¶ 3:116 [same rule applies to judge’s failure to 

timely strike statement].) With limited exceptions, “a 

disqualified judge shall have no power to act in any 

proceeding after his or her disqualification . . . .” (§ 170.4, 

subd. (d).)

Here, the record does not support Brookshire’s claim 

that he properly served the court with a verified statement 

of disqualification, much less that the court failed to timely 

respond. The record contains only one verified statement of 

disqualification, which Brookshire filed on June 25, 2020, 

and served (if at all) by mail. Service by mail was improper. 

(See § 170.3, subd. (c)(1) [copies of statement shall be 

“personally” served on challenged judge or clerk thereof].) In 

any event, five days after the statement was filed and 

allegedly served, the court timely struck and answered the 

statement. (See §§ 170.3, subd. (c)(3), 170.4, subd. (b).) In 

striking the statement, the court found that: (1) Brookshire 

had not properly served the statement on the court; and 

(2) the asserted grounds for disqualification were legally 

invalid on their face.
27

Brookshire challenges the court’s finding of lack of 

service, citing the single-page exhibitthat he submitted in 

objecting to the Strike Order, which was stamped received 

by the court on June 26, 2020 -- the day after he filed the

statementtimely struck by the court. Brookshire’s 

appellate brief refers to this exhibit as “the cover page” of a 

verified statement of disqualification personally served on 

June 26. But the record contains no other page from the 

June 26 statement, and the single page fails to set forth -- or 

verify -- any facts constituting grounds for disqualification, 

much less grounds different from those the court rejected in 

timely striking the June 25 statement. (See § 170.3, subd. 

(c)(1) [“verified” statement must “set[] forth the facts 

constituting the grounds for disqualification”].) Moreover,

because Brookshire elected to proceed on appeal without a 

record of the oral proceedings,the record contains no

reporter’s transcript of the July 2, 2020 hearing at which, 

according to Brookshire, he and the court discussed the 

court’s alleged error in overlooking the documents served on 

June 26. As a result of Brookshire’s failure to provide an 

adequate record, we must presume that this discussion 

supported the court’s finding that it had not been properly 

served with a verified statement of disqualification. (See 

Jameson v. Desta, supra, 5 Cal.5th at 609 [“‘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. 

“[I]f any matters could have been presented to the court 

below which would have authorized the order complained of, 
28

it will be presumed that such matters were presented”’”]; In 

re Valerie A. (2007) 152 Cal.App.4th 987, 1002 [appellant 

was considered to have “abandoned” claim that juvenile 

court erred at post-permanency planning review hearing, 

where appellant failed to provide transcript of hearing: “It is 

the appellant’s responsibility to include in the appellate 

record the portions of the reporter’s transcript relevant to 

appellant’s issues on appeal”].) As an alternative basis for 

upholding the court’s rulings, we presume the remaining 

pages of the June 26 statement set forth the same grounds 

for disqualification that the court found invalid in its June 

30 order timely striking the June 25 statement, and 

therefore did not require a separate response. In sum, the 

record does not show the court was disqualified. We 

conclude the court had jurisdiction to enter the Strike Order.

3. Due Process

Brookshire contends that by striking his third motion 

to vacate the prefiling order under section 473, subdivision 

(d), the trial court abused its discretion and violated his due 

process right to be heard. We disagree. As the court 

properly concluded,the motion was a defective motion for 

reconsideration under section 1008.

“[S]ection 1008 imposes special requirements on 

renewed applications for orders a court has previously 

refused. A party filing a renewed application must, among 

other things, submit an affidavit showing what ‘new or 

different facts, circumstances, or law are claimed’ [citation] 
29

to justify the renewed application, and show diligence with a 

satisfactory explanation for not presenting the new or 

different information earlier [citations].” (Even Zohar, 

supra, 61 Cal.4th at 833.) By its terms, section 1008 “applies 

to all applications to reconsider any order of a judge or court, 

or for the renewal of a previous motion . . . .” (§ 1008, 

subd. (e), italics added).) These include renewed motions for 

relief from default under section 473, subdivision (b), 

because that statute neither “purports to exempt” motions 

from section 1008’s requirements, nor “purport[s] to 

authorize unlimited repetitions of the same motion.” (Even 

Zohar, at 841.) The same is true of subdivision (d) of the 

same statute, on which Brookshire relied. (See § 473, subd. 

(d) [“The court may, upon motion of the injured party, or its 

own motion, correct clerical mistakes in its judgment or 

orders as entered, so as to conform to the judgment or order 

directed, and may, on motion of either party after notice to 

the other party, set aside any void judgment or order”].)

Where a party’s renewed motion or motion for 

reconsideration fails to satisfy the requirements of section 

1008, the court lacks jurisdiction to consider the motion. 

(§ 1008, subd. (e) [“This section specifies the court’s 

jurisdiction with regard to applications for reconsideration of 

its orders and renewals of previous motions . . . . No 

application to reconsider any order or for the renewal of a 

previous motion may be considered by any judge or court 

unless made according to this section”]; see also Even Zohar, 

supra, 61 Cal.4th at 837.) The sole recognized exception to 
30

this jurisdictional limitation was set forth in Le Francois v. 

Goel (2005) 35 Cal.4th 1094 (Le Francois), where our 

Supreme Court held section 1008 has no effect on a court’s 

jurisdiction to reconsider its previous interim orders on its 

own motion, even while limiting its jurisdiction to do so on a 

party’s motion. (Even Zohar, at 840, citing Le Francois, at 

1096-1097.) This limitation serves section 1008’s purpose 

‘“to conserve judicial resources by constraining litigants who 

would endlessly bring the same motions over and over . . . .”’ 

(Even Zohar, at 839; see also Pittman, supra, 20 Cal.App.5th

at 1021, fn. 13 [“The rule allowing an aggrieved party to 

challenge an order void on its face at any time does not mean 

a party may perpetually move to vacate the order until he or 

she receives a favorable ruling. ‘“Somewhere along the line, 

litigation must cease”’”].)

Here, the trial court properly concluded Brookshire’s 

third motion to vacate the prefiling order under section 473, 

subdivision (d), was a defective motion for reconsideration of 

the court’s denial of his first such motion.9 In his third 

motion to vacate, Brookshire renewed the same arguments 

the court had heard and rejected on their merits in denying 

his first motion to vacate (and had rejected again in striking 

9

Although Brookshire identified section 533 as additional 

authority for his second and third motions to vacate, he asserted 

no ground for relief under that statute, other than the purported 

fact that the prefiling order should not have been granted in the 

first instance, for the same reasons he identified as grounds for 

relief under section 473, subdivision (d).
31

his second), including arguments that the prefiling order 

was (1) void because it was entered after he voluntarily 

dismissed the action, and (2) marred by a clerical error that 

had omitted settlement documents from court records. 

Brookshire did not even attempt to satisfy the requirements 

for a motion for reconsiderationunder section 1008. He did 

not submit an affidavit identifying new or different facts or 

law, much less show diligence with a satisfactory 

explanation for not presenting new or differentinformation 

earlier. (See Even Zohar, supra, 61 Cal.4th at 833.) 

Accordingly, the court properly rejected Brookshire’s motion. 

(See id. at 837; § 1008, subd. (e).) 

Brookshire’s reliance on Le Francois is misplaced, as 

that case supports our conclusion the court was not required 

to consider his defective motion for reconsideration. (See Le 

Francois, supra, 35 Cal.4th at 1108 [party’s motion for 

reconsideration has no “procedural significance” if it does not 

satisfy requirements of section 1008: “The court need not 

rule on any [mere] suggestion that it should reconsider a

previous ruling”].) Further, Brookshire misrepresents this 

court’s decision in Lee v. Wells Fargo Bank, N.A. (2001) 88 

Cal.App.4th 1187 (Lee), suggesting we held that section 1008 

could never apply to a motion for relief under section 473. 

In fact, we merely held that section 1008 did not apply to a 

plaintiff’s first and only motion for relief under section 473, 

where no motion for reconsideration(or renewed motion) had 
32

been filed.

10

 (See id. at 1191, fn. 6.) Nothing in Lee

contradicts our present conclusion that section 1008 applies 

where, as here, a plaintiff repeatedly moves for relief under 

section 473 on repetitive grounds, even after his first motion 

has been heard and denied on its merits.

Contrary to Brookshire’s suggestion, our affirmance of 

the Strike Order will not permanently foreclose relief from 

the prefiling order. If, at some future date, changed facts 

and circumstances warrant it, he may apply for relief on the 

ground that he has “‘mendedhis ways’” with respect to his 

vexatious conduct. (Luckett v. Panos (2008) 161 Cal.App.4th 

77, 96; § 391.8, subds. (a)-(c) [authorizing applications to 

10 In Lee, the plaintiff filed an untimely motion for attorney 

fees and sought relief from its untimeliness in his reply papers, 

but did not then invoke section 473. (Lee, supra, 88 Cal.App.4th 

at 1189-1190.) The trial court denied the fee motion as untimely. 

(Id. at 1191.) The plaintiff then filed his first and only motion for 

relief under section 473, which the court granted under both 

section 473 and (purportedly) section 1008. (Ibid.) The court 

construed the motion as one for reconsideration under section 

1008, reasoning that it could have granted relief under section 

473 at the time it ruled on the fee motion. (Id. at 1191 & fn. 6.) 

In affirming relief under section 473, however, this court

disagreed with the trial court’s view that section 1008 applied: 

“The fact that the trial court might have treated the arguments 

and declarations in [the plaintiff’s] reply papers as a request for 

relief under section 473 did not transform [the plaintiff’s] motion 

for attorney fees into a section 473 motion or require that the

[section 473] motion filed [later] be deemed a motion for 

reconsideration.” (Id. at 1191, fn. 6.)
33

vacate prefiling order upon showing that underlying facts 

have materially changed and that justice would be served]; 3 

Witkin, Cal. Proc. 6th Actions § 400 (2022) [noting section 

391.8 codified Luckett v. Panos].) We emphasize that such 

an application should be based on evidence showing, as 

Brookshire has not yet attempted to show: (1) “an accurate

confrontation with the facts on which the prior vexatious 

litigant finding was made, as well as intervening facts that 

might not put the application in a favorable light”; (2) “some 

genuine remorse for the costs of litigation inflicted on the 

defendants who were the object of previous lawsuits,” and for 

the consumption of “public judicial resources better devoted 

elsewhere”; (3) “some genuine effort at restitution toward the 

previous victims of his litigation, including actual payment 

of cost orders made by the courts in that litigation,” to the 

extent “consistent with his . . . financial situation”; and (4) 

“actually giv[ing] up the habit of suing people as a way of 

life.” (Luckett v. Panos, supra, at 93-94.)
34

DISPOSITION

The Strike Order is affirmed. The appeal from the 

April 2020 order to show cause is dismissed as moot.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.