Filed 8/18/22 Miller v. Bernie CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

CHARLES A. MILLER,

Plaintiff and Appellant,

v.

KEVIN F. BERNIE,

Defendant and Respondent.

F080064

(Kings Super. Ct. No. 12C0112)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Kathy 

Ciuffini, Judge.

Charles A. Miller, in pro. per., for Plaintiff and Appellant.

Scampini, Mortara & Harris, Haig A. Harris, Jr., and Neil S. Turner for Defendant 

and Respondent.

-ooOoo-
2.

Charles Anderson Miller appeals after he was designated as a vexatious litigant 

who was unlikely to prevail on the merits of his lawsuit and had his case dismissed when 

he could not post the required security ordered by the trial court. (Code Civ. Proc., 

§ 391.3.)1 In addition, Miller appeals following the trial court’s decision to issue a 

prefiling order against him. (§ 391.7.) For the reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The litigation underlying this case has been proceeding for more than a decade and 

has undergone multiple appeals. We recount facts relevant to the issues before us in this 

appeal.

The Complaint and Entry of Default

On June 4, 2012, Miller filed a first amended complaint in his civil action against 

Kevin F. Bernie.2 The complaint requested more than $2 million in damages based on an 

attached letter purporting to concede the amount owed was a debt resulting from a prior 

loan from Miller to Bernie and unpaid wages from work Miller had done for Bernie. The 

June 17, 2010 letter broke down the debt as consisting of $1.7 million that was allegedly 

borrowed in 2008, $48,000 for paralegal work “on the Mitchell vs. Alexander case,” and 

$12,500 for paralegal work “performed on behalf of Lolonis Winery, Inc.” through June 

2008, along with interest. Repeatedly referenced in the letter was an alleged phone 

conversation on June 15, 2010, in which these promises were purportedly made and 

which the letter indicated “were no doubt also recorded by the [Department of 

Corrections and Rehabilitation] prison security telephone system.”

On August 22, 2012, Miller filed a case management statement asserting that 

Bernie had been served with the amended complaint but had not appeared. Included with 

the filing were documents suggesting that one Patti Rodrigues had signed for a document 

1 All future statutory references are to the Code of Civil Procedure, unless otherwise noted.

2 The original complaint, containing substantially similar factual assertions, was filed 

March 12, 2012.
3.

mailed to Bernie in Hawaii on June 27, 2012, and an assertion by Miller that he had

requested an entry of default on August 3, 2012, but the document had been 

“delayed/refused” by the court clerk. Also attached was a rejection slip from the superior 

court noting Miller’s “default and proof of service are being returned to you unfiled: 

Your Notice of Acknowledgment of Receipt must have a date of signature. We cannot 

accept as is.”

On September 14, 2012, Miller filed both a proof of service and a request for entry 

of default. The six-page proof of service was signed by one Sergey Lazarenko of 

Novato, California and included an extensively detailed description of how he 

purportedly served someone named “CYNDY” who was living at Bernie’s condominium 

in Walnut Creek, California. Lazarenko described Cyndy as an adult female “50+” years 

of age, with “sandy-blonde hair, green eyes, about 135 LBS in weight, and 5’7” in height 

[sic].” In his description of his attempts at service, Lazarenko asserted that Cyndy had 

repeatedly avoided accepting service, made several rude and crude comments in the

course of his attempts, and after being served, dropped the papers on the floor, claimed 

she could not accept service, and refused to pick them up even as Lazarenko was leaving. 

The document appears to have been filled out with a typewriter, utilizing multiple fonts, 

and contains multiple legal citations in support of claims the service was proper. The 

request for entry of default was also purportedly mailed to Bernie at the same 

condominium on September 12, 2012, by Sean McCarthy, a prison inmate.

Shortly thereafter, on September 18, 2012, Miller filed an amended case 

management statement again noting his desire to obtain a default entry. In this filing, 

Miller noted he had twice filed proofs of service and requests for default, and that the 

second set had been accepted. Subsequently, a hearing was set for the prove up of 

damages.

Prior to the hearing, Miller submitted a lengthy declaration from one Kathleen 

Marie Stevens, which purported to affirm the signature of Bernie on the letter supporting 
4.

Miller’s claims. In her declaration, Stevens claimed to have been a former girlfriend of 

Bernie but conceded he had obtained a restraining order against her. She claimed the 

letter was authentic, but noted it was on Bernie’s “old” letterhead. She also conceded, in 

discussing her claimed knowledge of the $1.7 million loan, that certain documents 

claiming to show Miller’s interest in a company that money had been invested in were 

“fabricated and/or fictitious.”

Miller also submitted his own declaration. In it he explained he had been a 

paralegal and had worked for Bernie before he had been convicted and sentenced to a life 

term under California’s “Three Strikes” law in 1998. He claims to have continued doing 

paralegal work through 2009, “with knowledge of [Department of Corrections and 

Rehabilitation] prison officials,” and attached billing statements and checks written by 

Bernie to pay for some of those services, while detailing work occurring around 2006 to 

2008. Miller further stated he had previously invested in a partnership and had been 

bought out from that group in 2008 for $1.7 million, which funds he then entrusted to 

Bernie to loan to Lolonis Winery. Miller acknowledged that an escrow closing statement 

allegedly sent to him by a prior business partner and showing this investment “later 

proved to be a fabrication.” Miller ultimately claimed the investment was never made, 

but rather that Bernie kept the funds.

On December 11, 2012, the trial court issued its judgment after default hearing. 

The trial court recounted the facts supporting the lawsuit, noting both that the “Escrow 

Closing Statement” Miller claimed to have received was an acknowledged fabrication 

and that Miller had previously filed a lawsuit in 2009 over the $48,000 paralegal fees that 

had been dismissed. Relying on the letter submitted by Miller and his declaration, the 

trial court entered a default judgment in the amount of $2,105,196.80.

Set Aside of Default and First Appeal

Shortly after the entry of default, Bernie moved to set aside the judgment on 

grounds of fraud and a lack of notice. Bernie argued that service in the case was part of 
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one extensive attempt to fraudulently obtain a default judgment. He alleged he had no 

knowledge of the lawsuit until his brother informed him on November 25, 2012, that 

papers about the default judgment had been sent to the brother’s house. Bernie further 

disputed many aspects of the proof of service on Cyndy, noting that the condominium 

complex he resides in does not match the descriptions given in several material ways, 

including with respect to how parking spaces were numbered, how people would enter 

the building, and the names of potential people residing in the building. And Bernie 

asserted that no documents relating to the lawsuit had arrived at any of his properties 

prior to his brother contacting him, despite several filings and notices allegedly being sent 

there. Finally, Bernie submitted multiple declarations in support of his request.

One declaration came from Rodrigues concerning the first attempt at service. 

Rodrigues worked as a reservationist at the complex where Bernie owns a condominium. 

She stated she had received multiple calls asking if Bernie was present in Hawaii and told 

the caller he had not been to that location in “quite some time.” The caller insisted 

Bernie would arrive soon and asked if they could mail him something here. Rodrigues 

stated that was possible, and later signed for an envelope “decorated in stickers and glitter 

of whales, fish and shells,” which she then placed in a filing cabinet and left unopened 

until November 26, 2012, when Bernie asked whether anything had been accepted for 

him at that location.

Another declaration came from Cynthia Simoncini, the person alleged to be Cyndy

in the Lazarenko proof of service. Simoncini stated she had never gone by “Cyndy” but 

had been known as Candy. She admitted to living with Bernie at the time service was 

alleged but denied being served or meeting with Lazarenko at any point. Simoncini 

stated she would have provided Bernie with any documents served on her as she knew he 

was a lawyer and insisted she would never speak to a stranger in the terms Lazarenko had 

described. Simoncini noted that the physical description given of her by Lazarenko did 

not match her height or weight. Finally, Simoncini explained she had met Stevens, 
6.

whom she called Miller’s fiancée, previously when Bernie was seeking a restraining 

order and speculated Stevens had provided Miller with a description of her.

On February 22, 2013, following a hearing, the trial court set aside the default. 

The trial court wrote that it found “Simoncini’s declaration credible” and that “if she had 

been served with the paperwork she would have given the paperwork” to Bernie. The 

court also found “it unusual that the proof of service is single spaced and fairly 

controversial with reference to a proof of service with unnecessary detail.” Based on 

these findings, the trial court concluded there was no “actual knowledge by ... Bernie of 

the summons and complaint in time to defend this action.”

On April 2, 2013, Miller appealed the trial court’s order to this court. In an 

unpublished opinion dated October 10, 2014, this court affirmed the trial court’s ruling. 

(Miller v. Bernie, Oct. 14, 2014, F067619.) This court wrote that while there was 

conflicting evidence in the record, the trial court made a credibility finding that Bernie 

lacked notice of the lawsuit and that there “was competent evidence sufficient to support 

the trial court’s finding.”

Discovery, Dismissal, and Second Appeal

Upon remand, the case proceeded to pretrial matters and discovery. Relevant to 

this appeal, Miller filed three discovery motions that were denied by the trial court.

The first motion, filed ex parte, sought to name Stevens as a “legal runner, 

Assistant, and/or legal non-attorney representative,” purportedly to assist Miller with the 

litigation. Stevens, who had since married Miller, was requested under the premise that 

pro se attorneys could name individuals who were authorized to visit them to serve as 

their legal runners under the applicable regulations.

The second motion sought an order to compel further compliance with a subpoena 

issued to the Department of Corrections and Rehabilitation (CDCR) to produce 

recordings of telephone conversations relating to Miller. In this motion, Miller 

acknowledged that the relevant recordings had been provided to him in a format that 
7.

required a computer to access. Noting that he could only possess a CD player, Miller 

requested the recordings be reformatted and reproduced to him in a “useable” format.

The third motion sought an order compelling further compliance with a subpoena 

issued to the CDCR through Pleasant Valley State Prison to produce visitor logs relating 

to Miller. In response to Miller’s initial subpoena for such records, the CDCR provided a 

declaration from a custodian of records stating that they did not maintain those specific 

records. Miller argued this statement contradicted written policies on where the 

documents should be stored and noted he had seen portions of the records in the 

possession of a different officer.

The trial court denied each of these motions after holding a hearing on each. On 

the first motion, the court’s confirmed at the outset that the CDCR was not a party to the 

lawsuit and thus could only be compelled to act by mandamus. Miller, often overtalking 

the court, then conceded the case law did not permit the court to appoint his wife as a 

legal runner with respect to the CDCR. The court then explained to Miller that he would

need to go through the normal prison-side procedures to have a legal runner appointed. 

In further discussions, it became clear that the normal process for appointing a runner 

could take several months, and Miller wanted an advisory opinion from the court that 

could assist with having Stevens appointed by the prison. The trial court refused to do 

this.

The trial court heard the second and third motions at the same time. It denied the 

second motion writing that “EIS[, the custodian of record for the CDCR,] already 

fulfilled its legal obligation by producing the telephone call records in the form in which 

they are ordinarily maintained and in a form that is reasonably useable, and EIS cannot 

reproduce the recordings in the format requested by Miller.” The court denied the third 

motion noting “Pleasant Valley State Prison is not the proper custodian of records for 

Miller’s visiting records.” At the hearings on these motions, the CDCR explained to the 

court that the visitor log files would be kept at Miller’s current prison, that no regulation 
8.

required them to be kept where Miller argued they were, that the CDCR would work with 

Miller to help him understand who to ask for the records, that they had produced the 

audio files in the format they were kept, and that they had no software that would convert 

the files to another format. The court accepted these representations in denying the 

motions.

In addition to the proceedings on these motions, Bernie sought to dismiss the 

action against him on the ground the trial court could not permit the action to proceed 

unless it determined the lawsuit was a bona fide action. The trial court ultimately granted 

this motion, dismissing Miller’s action, and Miller appealed.

In an unpublished opinion, this court reversed the dismissal. (Miller v. Bernie, 

June 15, 2018, F073153.) In the course of the opinion, this court recounted many of the 

facts presented by both sides regarding the case, noting Miller’s claims that he had not 

been paid for paralegal work and had loaned Bernie an alleged $1.7 million that had been 

improperly diverted, along with Bernie’s claims that all of the relevant documents 

regarding the purported loan were fabricated and that the paralegal work claims were 

barred both by statute of limitation and regulatory hurdles. This court then looked at the 

nature of Bernie’s motion to dismiss, lacking in any statutory authority, and determined it 

was an improper speaking motion to dismiss, a form of motion that had been statutorily 

eliminated by the summary judgment statutes.

Having reached this conclusion, this court explained that the appeal exemplified 

the reasons for the current summary judgment proceedings, focusing on the limited 

briefing schedule and the deluge of evidence presented to the trial court in the course of 

the motion. Concluding that the record contained “triable issues of material fact” and 

that Bernie “did not follow the proper procedures for bringing a motion for summary 

judgment,” which is how it should have treated the motion to dismiss, this court reversed 

the order dismissing the action.
9.

Following this conclusion, the opinion extensively considered whether the rules 

are different for a prisoner-plaintiff. Reviewing the case law, this court found there were 

some circumstances where an indigent prisoner-plaintiff may be required to demonstrate 

the existence of a bona fide action in order to obtain supplemental services necessary to 

ensure access to the courts. However, such circumstances would not warrant a minitrial 

on the plaintiff’s evidence but would focus upon the evidence presented in the light most 

favorable to the plaintiff. Finally, this court dismissed the argument the court could 

dismiss the action as frivolous because that argument had not been properly raised in the 

briefing or raised below.

Remittitur and Cost Motions

Given the trial court’s order dismissing the case was reversed, the matter was 

remanded to the trial court for further proceedings. On June 26, 2018, the trial court 

entered a notice of hearing after remittitur, scheduling the hearing for August 6, 2018. In 

response, Miller attempted to file a memorandum of costs related to the costs awarded to 

him in the prior appeal. This filing, however, was rejected based on a faulty proof of 

service. On July 24, 2018, Bernie filed a motion to strike Miller’s request for costs, 

arguing the request was prematurely filed. On July 30, 2018, the court vacated the 

scheduled hearing after remittitur, noting it was prematurely set in error. On August 30, 

2018, the remittitur issued, and a new hearing was scheduled for September 21, 2018. 

Shortly thereafter, on September 10, 2018, the trial court granted Bernie’s motion to 

strike the costs filing that had been rejected by the clerk’s office. The order shows that 

Miller did not appear for the telephonic hearing which occurred on August 21, 2018, 

prior to the remittitur issuing.

Separately, on or around September 1, 2018, Miller filed a memorandum of costs, 

seeking $6,313.83 in appellate costs. Bernie filed motions to tax the requested costs on 

the ground Miller did not actually incur the majority of them and to apply any award to a 

lien Bernie held against Miller. Following a hearing, the trial court struck all but $593.60 
10.

associated with “the preparation of the relevant reporter’s transcript” and granted the 

motion to apply that sum against the lien.

The Vexatious Litigant Motions, Rulings, and Present Appeal

On May 6, 2019, Bernie filed two related motions seeking to have the court 

declare Miller a vexatious litigant, determine he had no reasonable probability of success 

on the merits, and order Miller post a security to proceed. Bernie’s argument focused on 

the litigation history detailed above, contending Miller frivolously attempted to obtain a 

default judgment through improper service, fabricated documents, and pursued an 

unmeritorious appeal, before engaging in unmeritorious and frivolous discovery 

proceedings, and ultimately filing unmeritorious and frivolous costs requests. Miller 

opposed the request. Following a hearing, the trial court granted Bernie’s motions.

The trial court’s written order determined that Miller qualified as a vexatious 

litigant under section 391, subdivision (b)(3). The court reached this determination by 

concluding Miller had “filed eight frivolous motions, pleadings and other papers without 

colorable merit.” The court stated these filings were “frivolous based on fabricated 

proofs of service, and litigation tactics, for ulterior motives to defraud and harass Mr. 

Bernie and/or the [CDCR].” The court then looked at the eight filings individually. On 

the first, the court found Miller filed a “case management conference statement and asked 

for an entry of a default judgment based on a defective proof of service” to “fraudulently 

later obtain a default judgment.” The court found this frivolous because the service was 

purportedly made in Hawaii “while Mr. Miller knew that [Bernie] did not live in Hawaii, 

as shown through deceptive phone calls to a reservationist ....” The second, the 

fabricated proof of service, was a filing the court called “a glaring fabrication” and “a key 

pin to the lawsuit.” The court specifically noted its conclusion that “Miller fabricated this 

proof of service” in part because of the unique nature of the proof of service and the 

court’s conclusion “that the font on that proof of service appeared to be from Mr. Miller’s 
11.

typewriter.” Similarly, the court considered Miller’s pursuit of the first appeal to be part 

of this fraudulent service of process issue.

The fourth, fifth, and sixth filings were the three discovery motions following the 

first appeal. The court called the request for a legal runner to be “unmeritorious and 

frivolous” in part “because [Miller] knew the Court had no personal jurisdiction over the 

CDCR due to his failure to serve a subpoena or Writ of Mandate.” The court called both 

the request for phone records and the request for visitation records “unmeritorious” 

because “the code relating to record production is quite clear with respect to the form in 

which those recordings would be produced” and because “the custodian stated under oath 

that he did not have those visitation records in his possession.”

The seventh and eighth filings were the two cost requests. The court called the 

first “unmeritorious” because it was “premature in that it was filed prior to the issuance 

of the remittitur” and resulted in “Bernie having to defend that.” The eighth was found 

“unmeritorious” based on the large difference between the costs requested and those 

awarded.

Having determined Miller to be a vexatious litigant, the trial court next determined 

there was “no reasonable possibility” that Miller would prevail in the action against 

Bernie. The court noted it was permitted to weigh the evidence in the case when making 

this determination before identifying three reasons why the case was not likely to be 

successful. Two of the reasons for the court’s findings were based on procedural hurdles. 

First, the trial court concluded Miller’s claims were likely barred by the statute of 

limitations. The court noted the alleged paralegal work was completed in 2005 and 2006, 

but the complaint was not filed until 2012, well beyond the four-year statute of 

limitations for oral or written contracts. Second, the court found that Miller was a 

prisoner at the time of the alleged work and thus was barred from enforcing any 

agreement for payment under section 3924, subdivision (a) of Title 15 of the California 
12.

Code of Regulations, which requires permission from the warden for any inmate to 

perform paid work.

The third reason was more substantive. Extensively discussing the evidence it 

relied upon, the trial court concluded that “the documents underlying the lawsuit” were 

“fabricated.” Looking at key evidence supporting Miller’s claims, the court found many 

problems. First, it concluded the key evidence supporting Miller’s claim, a letter 

purportedly sent from Bernie to Miller on June 17, 2010, was “a forgery.” The court 

noted that the letter referenced a June 15, 2010 phone call and that subpoenaed records 

from that date included one 14-minute phone call from that date. However, the transcript 

of that call contained no discussion of any debt owed to Miller regarding paralegal fees. 

The court further noted that a forensic examiner had examined the letter memorializing 

the purported June 15, 2010 call and, as the court put it, “He didn’t state it in those terms, 

but the Court has made an inference based on his statement and his findings that the 

letter, in fact, was a forgery.”3 Continuing on, the court found the “envelope that Mr. 

Miller allegedly received the letter in was, in fact, an envelope that Mr. Miller received 

from Lolonis Winery containing a book of stamps and regular envelopes.”4 Wrapping up 

the forgery analysis, the court expressed its view that the “forgery is very apparent when 

3 The actual declaration from the examiner in the record, who looked at several signatures 

for comparison, states the signature on the letter “pictorially resembles some of the obvious 

handwriting features that are present in the K-1 through K-12 genuine signatures of Kevin F. 

Bernie; However, any real similarity ends there.” The examiner continues by stating, “[T]here 

are numerous differences present between the questioned and known signatures which strongly

indicate that the writer of the questioned signature made an effort to imitate the obvious 

uppercase ‘K’ and uppercase ‘F,’ which were carelessly simulated.” The examiner concludes,

“[T]here still is sufficient evidence present for me to positively conclude that the questioned 

signature is not the normal or genuine signature of Keven F. Bernie when compared with the K-1 

through K-12 signatures. Rather, there was an attempt by an individual to imitate the genuine 

signature of Kevin F. Bernie.”

4 This was based on declarations submitted to the court explaining Lolonis Winery would 

often send such envelopes to Miller and additional phone recordings from June 17, 2010, where 

Miller asked for a book of stamps and regular envelopes.
13.

compared to the proof of service with respect to the service of Mr. Bernie. And that is 

the proof of service allegedly authored by Sergey Lazarenko, which was used in support 

of a default judgment.”

The court then briefly looked at the possibility Miller had loaned $1.7 million to 

Bernie. The court noted it “proved out to be that [Miller] did not have the $1.7 million.” 

The court pointed to Miller’s admission that the escrow statement suggesting he had the 

money was an admitted forgery and that phone records were subpoenaed from Pleasant 

Valley State Prison which showed “there was never a telephone conversation with 

Lolonis Winery about Mr. Miller investing in this partnership of Lolonis Winery and 

receiving $1.7 million from Mr. Miller.”

Based on these findings the court ordered Miller to post a security in the amount 

of $265,000 to proceed with the litigation.5 In addition, at the hearing on these motions, 

the court stated it was “going to issue a prefiling order under ... 391.7.” This order was 

entered March 3, 2020. Miller did not pay the required security and his case was 

eventually dismissed.

Miller timely appealed the order declaring him a vexatious litigant and requiring 

he provide security to proceed. We construe that notice to also include the prefiling 

order, which was ordered prior to the appeal, but not entered until after, and was part of 

Miller’s previously granted request to file this litigation as required under the vexatious 

litigant statutes.

DISCUSSION

Basis for the Vexatious Litigant Statutes

There are various permeations of the explanation for California’s vexatious litigant 

statutory scheme. Our Supreme Court has explained that “[t]he vexatious litigant statutes 

(§§ 391–391.7) are designed to curb misuse of the court system by those persistent and 

5 Miller has dropped any argument the amount of the security was an abuse of discretion, a 

point upon which we reach no conclusions.
14.

obsessive litigants who, repeatedly litigating the same issues through groundless actions, 

waste the time and resources of the court system and other litigants.” (Shalant v. Girardi

(2011) 51 Cal.4th 1164, 1169 (Shalant).) Another court recounted: “ ‘ “The purpose of 

the statutory scheme is to deal with the problem created by the persistent and obsessive 

litigant who has constantly pending a number of groundless actions, often against the 

judges or other court officers who decide or were concerned in the decisions of previous 

actions adversely to him.” ’ ” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 634 

(Golin).) Curbing such abuses was deemed necessary because such “ ‘ “abuse of the 

system not only wastes court time and resources but also prejudices other parties waiting 

their turn before the courts.” ’ ” (Id. at p. 635.) “ ‘Since fewer sanctions are available 

against a pro per litigant, the power to declare him vexatious becomes an important tool 

for the courts to manage their dockets and prevent frivolous claims.’ ” (Shalant, supra, 

51 Cal.4th at p. 1176.)

The statutes contain “two distinct and complementary sets of remedies. In 

pending litigation, a defendant may have the plaintiff declared a vexatious litigant and, if 

the plaintiff has no reasonable probability of prevailing, ordered to furnish security. If 

the plaintiff fails to furnish the security, the action will be dismissed. [Citation.] In 

addition, a potential defendant may prevent the vexatious litigant plaintiff from filing any 

new litigation in propria persona by obtaining a prefiling order and, if any new litigation 

is inadvertently permitted to be filed in propria persona without the presiding judge’s 

permission, may then obtain its dismissal.” (Shalant, supra, 51 Cal.4th at p. 1171, italics 

added.)

The first remedy arises out of sections 391.1 through 391.6, while the second 

arises out of section 391.7. Both remedies share the foundational requirement of 

identifying a vexatious litigant if the court is to implement them. Under section 391.1, 

any motion seeking an order requiring security to proceed “shall be based upon the 

ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there 
15.

is not a reasonable probability that he or she will prevail in the litigation against the 

moving defendant.” Under section 391.7, “[i]n addition to any other relief provided” in 

the statutory scheme, 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.” (§ 391.7, subd. (a).)

Standard of Review and Applicable Law

A vexatious litigant is defined as one satisfying one of four tests, of which only the 

third is applicable to this case. Under that test, a vexatious litigant is one 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).) 

This test has been considered disjunctive by prior courts, looking at whether the plaintiff 

satisfied any of the listed courses of conduct individually, either by repeatedly filing 

unmeritorious motions, by conducting unnecessary discovery, or by engaging in frivolous 

litigation tactics. (Golin, supra, 190 Cal.App.4th at pp. 638–639.) The term “repeatedly” 

has been construed to refer “to a past pattern or practice on the part of the litigant that 

carries the risk of repetition in the case at hand.” (Holcomb v. U.S. Bank Nat. Assn.

(2005) 129 Cal.App.4th 1494, 1505 (Holcomb).) The term “frivolous” has been 

construed to include actions “ ‘(A) totally and completely without merit or (B) for the 

sole purpose of harassing an opposing party’ ” as well as “a ‘ “ ‘flagrant abuse of the 

system,’ ” ’ having ‘ “no reasonable probability of success,” ’ or lacking ‘ “reasonable or 

probable cause or excuse.” ’ ” (Golin, supra, 190 Cal.App.4th at p. 639, fn. 29.)

“At the hearing upon the motion the court shall consider any evidence, written or 

oral, by witnesses or affidavit, as may be material to the ground of the motion.” 

(§ 391.2.) “When considering a motion to declare a litigant vexatious, the court must 

weigh the evidence to decide whether the litigant is vexatious based on the statutory 
16.

criteria and whether the litigant has a reasonable probability of prevailing.” (Goodrich v. 

Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265 (Goodrich).) 

The “normative conclusion that, in any litigation, the plaintiff has engaged in 

‘unnecessary’ discovery or ‘other tactics that are frivolous or solely intended to cause 

unnecessary delay’ ” is an evaluative function that requires the trial court to weigh the 

evidence. (Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 786 

(Moran).) Where evidence on the relevant issues is conflicting, “ ‘ “It is for the trial 

court to weigh the evidence and its finding, based upon substantial conflicting evidence, 

is in this as in every civil case binding upon the appellate court.” ’ ” (Id. at pp. 784–785.) 

Of course, “[a]ny determination that a litigant is vexatious must comport with the intent 

and spirit of the vexatious litigant statute.... Therefore, to find that a litigant is vexatious, 

the trial court must conclude that the litigant[’]s actions are unreasonably impacting the 

objects of [the] appellant’s actions and the courts as contemplated by the statute.” 

(Morton v. Wagner (2007) 156 Cal.App.4th 973, 970–971 (Morton).)

Accordingly, we “review the trial court’s order declaring a party to be a vexatious 

litigant for substantial evidence. [Citation.] We are required to presume the order 

declaring a litigant vexatious is correct and imply findings necessary to support that 

designation. [Citation.] A reversal is required only where there is no substantial 

evidence to imply findings in support of the vexatious litigant designation.” (Goodrich, 

supra, 246 Cal.App.4th at pp. 1265–1266.) “Likewise, a court’s decision that a vexatious 

litigant does not have a reasonable chance of success in the action is based on an 

evaluative judgment in which the court weighs the evidence. If there is any substantial 

evidence to support the court’s determination, it will be upheld.” (Golin, supra, 

190 Cal.App.4th at p. 636.)

Substantial Evidence Supports the Vexatious Litigant Finding

The trial court’s order in this case determined Miller was a vexatious litigant under 

section 391, subdivision (b)(3) based on the fact he had “filed eight frivolous motions, 
17.

pleadings and other papers without colorable merit.” The court found these filings 

frivolous or meritless “based on fabricated proofs of service, and litigation tactics, for 

ulterior motives to defraud and harass ....”

Miller spends significant effort breaking apart the various filings discussed by the 

trial court and attempting to demonstrate that there is no substantial evidence on an 

individual basis to conclude that any filings were frivolous or otherwise filed for an 

improper purpose. We do not agree. Indeed, upon review of the record, we conclude 

there is more than enough evidence for the trial court to determine Miller engaged in 

frivolous litigation tactics, specifically through the use of fraudulent service documents to 

obtain a default judgment. Miller’s arguments to the contrary generally seek to impose 

additional burdens on Bernie and the trial court to specifically prove Miller’s intent on a 

filing-by-filing basis or have this court weigh the evidence submitted independently and 

agree with Miller that it does not demonstrate an intent to “harass, annoy, burden 

financially, or cause undue distress” to Bernie.6 But there is no basis for this court to do 

so. The statutory scheme permits a global finding of vexatious litigation tactics that does 

not turn on “individual unmeritorious filings.” (Golin, supra, 190 Cal.App.4th at p. 639.) 

It is this global analysis that we review when considering whether substantial evidence 

supports the trial court’s ruling.

Looking at the record, we conclude substantial evidence exists upon which the 

trial court could conclude that Miller fabricated the Lazarenko proof of service and failed 

to inform Bernie of the lawsuit against him until after a default judgment was entered. 

On this point, Bernie submitted declarations from himself and Simoncini regarding notice 

of the lawsuit and the allegations made in the Lazarenko proof of service. In setting aside 

6 Because this court affirms the trial court’s finding on the basis of frivolous tactics, we 

need not specifically reach the alternative potential bases of multiple unmeritorious filings or 

unnecessary discovery. We specifically note in this context that our conclusion here does not 

touch on whether Miller’s cost filings constitute an independent basis for the trial court’s rulings.
18.

the default, the trial court specifically concluded that Simoncini’s declaration that she had 

not, in fact, been served in the case was credible. Further, additional evidence in the form 

of contradictions between statements made by Lazarenko about the building and people 

he encountered in the declaration and the actual facts regarding the building and the 

people present at the site as detailed in Bernie’s declaration support the conclusion that 

Simoncini was not actually served.

That Miller’s actions were part of a broader frivolous litigation tactic is then 

further supported by the declaration submitted by Rodrigues detailing the deceptive 

attempt to serve Bernie in Hawaii. Although Miller contends that his later filing of case 

management conference statements cannot support the vexatious litigant finding because 

Bernie had not yet appeared and the filings were required by court rules, it is not the just 

the filings that are relevant but also the underlying actions in attempting to serve Bernie 

in a location he was not residing and through potentially deceptive phone calls and 

mailings in order to seek a default. The court could readily rely on these record facts to 

conclude Miller’s actions were frivolous, as fraudulent proofs of service “qualify as 

substantial evidence of frivolous tactics in that such conduct is a flagrant abuse of the 

system.” (Golin, supra, 190 Cal.App.4th at p. 640.) That Miller then pursued his 

improperly obtained default judgment through an appeal and lost further solidifies the 

trial court’s implied conclusion that Miller was acting in a manner that warranted 

application of the vexatious litigant statutes because he was “unreasonably impacting the 

objects of [Miller]’s actions and the courts as contemplated by the statute.” (Morton, 

supra, 156 Cal.App.4th at p. 971.)

Miller contends on appeal that Bernie waived any right to seek relief under the 

vexatious litigant statutes by waiting until this case had proceeded for many years, and 

through multiple appeals, to raise the issue with the trial court. Miller argues the delay 

was prejudicial because the time delay meant multiple judges ruled on different aspects 
19.

of the case. Miller also argues that the lack of any prior judge sanctioning Miller affirms 

his claim of prejudice in the delay. We do not agree.

It is true that attempting to rely on cold docket sheets, particularly when 

referencing actions in prior cases, can render it “impossible to discern whether the 

particular motion was completely meritless, or made for an improper purpose.” 

(Holcomb, supra, 129 Cal.App.4th at p. 1506.) But that is not the case here. Bernie 

could rely not just on ultimate rulings listed in a docket, but also on direct evidence in the 

form of declarations submitted in the pending case and written rulings from the trial court 

that considered those declarations supporting Bernie’s positions. There is also no 

indication that the trial court in this case was in any worse position than any other court 

to make the relevant vexatiousness determination. And there is no history of motions for 

sanctions being denied. (See ibid. [court in prior litigation had considered same evidence 

and rejected vexatious litigant request].) Although Miller notes he has not been

previously sanctioned, he points to no law which requires such conduct before the trial 

court can conclude that a party’s overall litigation tactics are frivolous. (See Shalant, 

supra, 51 Cal.4th at p. 1176 [“ ‘Since fewer sanctions are available against a pro per

litigant, the power to declare him vexatious becomes an important tool for the courts to 

manage their dockets and prevent frivolous claims.’ ”].)

Nor is any purported delay in seeking the vexatious litigant ruling inappropriate. 

Not only does section 391, subdivision (b)(3) “not specify either a timeframe or quantity 

of actions necessary to support a vexatious litigant finding,” but the broader statutory 

scheme states that a motion can be filed “at any time until final judgment is entered.” 

(Morton, supra, 156 Cal.App.4th at p. 971; § 391.1.) Moreover, even if delay was a 

defense, the facts of this case do not imply there was an improper delay. Bernie has filed 

only one motion seeking relief and has done so in the case in which Miller’s conduct 

occurred. Moreover, Bernie’s filing came only after more direct attempts at resolving the 

alleged underlying fraud in the case were unsuccessful. While Bernie’s motion could 
20.

have been filed earlier, this court sees no reason why Bernie cannot muster a fuller 

evidentiary record before filing, particularly where issues of fraud and overall litigation 

tactics are concerned.

Ultimately, the trial court was in a position to review the full record of the case 

and weigh the potentially competing evidence regarding whether Miller qualified as a 

vexatious litigant under the statutory scheme. Although Miller may disagree with the 

trial court’s factual findings, upon review we find no basis to conclude they were 

unsupported by substantial evidence. Indeed, the record contains a flood of evidence 

indicating that Miller is exactly the type of litigant that the vexatious litigant statutes seek 

to control—one that will engage in a decade long litigation founded on multiple attempts 

to fraudulently obtain a default judgment and containing a multitude of potentially 

meritless filings. Accordingly, as the trial court is entitled to consider and weigh the 

evidence presented to it, and we are bound to affirm that balancing if properly supported, 

we affirm the trial court’s vexatious litigant finding and its later issuance of a prefiling 

order. We next turn to whether the trial court properly imposed a security requirement 

upon a finding that Miller lacked a reasonable probability of success on the merits.

Substantial Evidence Supports the Finding of No Reasonable Probability of Success

The trial court determined Miller had no reasonable probability of success on the 

merits based on its analysis of both legal and factual hurdles facing the case. From a 

legal standpoint, the court concluded that Miller could not overcome the relevant statute 

of limitations or certain controlling regulations with respect to his claims for paralegal 

fees. From a factual standpoint, the court concluded Miller could not demonstrate he 

ever loaned $1.7 million dollars to Bernie. Relevant to all of these determinations was 

the court’s conclusion that the core evidence Miller submitted with his complaint—a 

purported letter from Bernie—was fabricated.

The evidence supporting these conclusions was certainly substantial and the legal 

conclusions the court drew from them were sound. With respect to the paralegal work, 
21.

the court pointed to evidence in the record that the alleged paralegal work was completed 

in 2005 and 2006, but the complaint was not filed until 2012, well beyond the two-year 

statute of limitations for oral contracts and the four-year statute of limitations for written 

contracts. (§§ 337, 339.) The court also noted that no evidence presented demonstrated 

the warden of any of Miller’s prisons had granted him permission to engage in business 

activities. As Bernie notes, without such permission, Miller’s alleged contract is 

unenforceable. (See Homani v. Iranzadi (1989) 211 Cal.App.3d 1104, 1109 [“ ‘ “The 

general principle is well established that a contract founded on an illegal consideration, or 

which is made for the purpose of furthering any matter or thing prohibited by statute, or 

to aid or assist any party therein, is void.” ’ ”]; see also Manning v. Bunnell (E.D.Cal.

May 23, 2013, No. 2:12-cv-2440 MCE AC P) 2013 U.S.Dist. Lexis 74098, 49 [“The 

undersigned agrees with defendants that because Manning is a prisoner and barred by the 

regulation from conducting business and profiting from his writing, he can have no 

legally-enforceable contractual rights or expectation of prospective economic advantage 

in relation to the publication of his books”].)

With respect to the $1.7 million loan to Bernie, the court pointed to the fact that 

Miller could not demonstrate he ever had that amount of money, and that the only 

document implying such funds ever existed was admitted by Miller to be a forgery. The 

court also pointed to the June 15 phone call purporting to memorialize the debt, noting 

“there was never a telephone conversation with Lolonis Winery about Mr. Miller 

investing in this partnership of Lolonis Winery and receiving $1.7 million from 

Mr. Miller.” The failure to have or lend the money would preclude a claim for recovery. 

(See Pleasant v. Samuels (1896) 114 Cal. 34, 36–38 [to state a common count for money 

lent, the plaintiff need only allege that the defendant is indebted in a certain sum for 

money loaned by the plaintiff and that the defendant has not repaid the money]; Pike v. 

Zadig (1915) 171 Cal. 273, 276 [to prevail on a common count for money had and 
22.

received, the plaintiff must prove that the defendant is indebted to the plaintiff for money 

the defendant received for the use and benefit of the plaintiff].)

Finally, with respect to all claims, the court noted that the primary evidence Miller 

relied upon to prove his case was the purported letter from Bernie confirming the debts 

owed. The court reviewed the evidence submitted regarding that letter and concluded it 

was a forgery. In doing so, the court pointed to substantial evidence in the record 

including transcribed phone calls that did not mention the debt, forensic examinations 

that found Bernie’s signature to not be authentic, a comparison of the letter with the 

Lazarenko proof of service, another perceived forgery, implying both were created by the 

same person, and evidence explaining how Miller came into possession of the documents 

needed to forge the letter. All of this evidence was before the trial court and the court’s 

factual findings regarding the weight and veracity of that evidence is well within its 

discretionary authority. (See Golin, supra, 190 Cal.App.4th at p. 636 [“Likewise, a 

court’s decision that a vexatious litigant does not have a reasonable chance of success in 

the action is based on an evaluative judgment in which the court weighs the evidence. If 

there is any substantial evidence to support the court’s determination, it will be 

upheld.”].)

Despite the presence of this evidence, Miller argues the trial court could not weigh 

the evidence and find Miller lacked a reasonable probability of success. Miller argues 

that the law of the case, as detailed in the second prior appeal, prevents any factual 

conclusions that he lacks a reasonable probability of success. Additionally, Miller argues 

the record in this case shows the trial court abused its discretion by relying upon the 

overturned order underlying the second appeal in concluding Miller lacked a probability 

of success. Neither contention is availing.

Under the law of the case doctrine, a decision made by an appellate court in an 

action binds both trial and appellate courts in subsequent proceedings in that same case. 

(Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) Thus, “[t]he rule of ‘law of the 
23.

case’ generally precludes multiple appellate review of the same issue in a single case.” 

(Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434.) “The doctrine, as the name 

implies, is exclusively concerned with issues of law and not fact.” (People v. Shuey 

(1975) 13 Cal.3d 835, 842, overruled on other grounds in People v. Bennett (1998) 

17 Cal.4th 373, 389–390, fn. 4.)

It is true that a ruling reversing summary judgment based on the existence of a 

material issue of fact can trigger the law of the case. (See Yu v. Signet Bank/Virginia 

(2002) 103 Cal.App.4th 298, 309–310, disapproved on other grounds in Newport Harbor 

Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 646.) 

However, the scope of the doctrine is limited to those legal issues necessarily decided and 

does not bar subsequent consideration of similar issues under different legal standards. 

(See Donohue v. State of California (1986) 178 Cal.App.3d 795, 801–802 [noting prior 

determination that issues of fact precluded summary judgment did not prevent court from 

later granting judgment on the pleadings].)

Miller’s arguments in this case seek to apply a standard that views all evidence in 

the light most favorable to the opposing party and asks whether there are any material 

issues of fact that must be tried to resolve the case to a situation where the trial court is 

tasked specifically with weighing competing evidence and determining whether a 

security is required because the vexatious litigant opposing the motion lacks a reasonable 

probability of success on the merits. (See Aguilar v. Atlantic Richfield Co. (2001) 

25 Cal.4th 826, 843 [describing summary judgment standards].) From the contrasting 

standards alone, it is clear that any finding Miller has come forward with evidence upon 

which a claim could be tried does not preclude the trial court from later weighing that 

evidence under authority granted by the vexatious litigant statutes and concluding it fails 

to show a reasonable probability of success on the merits. The legal findings in each 

instance are simply different, meaning the law of the case does not limit the court’s 

authority under these different standards.
24.

Miller’s argument fails for the additional reason that this court’s prior appellate 

opinion did not rely upon any conclusion that Miller had satisfied the summary judgment 

standards. Rather, this court found that the trial court had wrongly circumvented the 

substantive and procedural safeguards afforded by the summary judgment statutes in 

order to make factual findings that would not otherwise be appropriate if summary 

judgment was utilized. The closest this court came to considering the evidence presented 

in the context of the summary judgment standard was a concluding sentence in that 

portion of the analysis where we wrote: “Because defendant did not follow the proper 

procedures for bringing a motion for summary judgment, and because the evidence 

indicated there were triable issues of material fact, defendant’s motion should have been 

denied.” This one sentence recognition of conflicting evidence in the record was not 

material to the decision given that the trial court’s failure to adhere to any aspects of the 

summary judgment law constituted reversible error and, more importantly, was not a 

legal conclusion as to the validity of any of the evidence presented by Miller.

Indeed, the entire point of this court’s analysis was that no such analysis of 

conflicting facts could be done under a motion that had to be treated as a request for 

summary judgment. As such, we find no merit in Miller’s assertion that this court 

previously implicitly or explicitly ruled a trial is necessary to determine for all purposes 

whether the statute of limitations applies, certain regulations preclude recovery, or 

Miller’s core documents are fabricated. Nor do we find merit in Miller’s claim that 

Bernie was required to present new evidence, not presented during the improperly 

conducted summary judgment proceedings, to prevail. Rather, this court merely held that 

the trial court could not make factual findings in the course of a motion that had to be 

analyzed under the summary judgment rubric. Whether such an analysis could be 

triggered by separate statutory authority was not before us, and we see no reason why an 

issue of fact precluding summary judgment would bar a court from later considering 
25.

whether one properly deemed a vexatious litigant had a reasonable probability of success 

on the merits.

In a partially related argument, Miller contends the trial court abused its discretion 

by relying on the order reversed in the second appeal in order to determine Miller lacked 

a reasonable probability of success on the merits. Although Miller claims the trial judge 

“is entitled to the ‘presumption’ that she properly performed her duties without bias,” he 

claims this presumption is overcome by the fact the trial court was provided with a copy 

of the prior motion in the briefing and made similar factual findings. We do not agree. 

Nothing in the record suggests the trial judge disregarded her duties. Rather, it is 

apparent that substantial thought and consideration went into the court’s ruling. 

Regardless, this court reviews the judgment, not the court’s reasoning, upon appeal. (See 

Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 769–770.) As 

discussed extensively above, the record contains substantial evidence supporting the 

court’s findings independent of any information contained in the contested order.

Motions for Judicial Notice and Sanctions

In the course of briefing this appeal, Miller filed two motions, one for judicial 

notice and one for sanctions against Bernie. We deny both motions.

Miller’s motion for judicial notice requests this court take judicial notice of 

multiple appellate and trial court documents and the unpublished appellate opinion from a 

case called Semendinger v. California Department of Corrections and Rehabilitations

(January 31, 2012, F060472 [2012 Cal.App.Unpub. LEXIS 814]). Miller argues that 

proofs of service used in that case are substantially similar to the Lazarenko proof 

submitted in this case and that this similarity arises because Miller sent exemplars from 

that case to Lazarenko. There is no dispute that these documents were not presented to 

the trial court. Accordingly, we deny the request for judicial notice. (See Simmons v. 

Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 366–367 [courts need not 

take judicial notice of late discovered documents that could impeach or discredit a 
26.

witness].) The documents are not relevant to the issues on appeal, namely whether 

substantial evidence supported the trial court’s ruling.

Miller’s motion for sanctions asks this court to utilize its inherent authority to 

penalize Bernie and his counsel for alleged “bad faith tactics” which include the 

nonstatutory speaking motion reversed in the second appeal and the present vexatious 

litigant motion, which Miller alleges violates the law of the case. Assuming this court 

has authority to issue sanctions, we find no basis to do so. Miller obtained a sufficient 

remedy in the prior appeal and Bernie’s filing of the vexatious litigant request has been 

affirmed in this appeal.

DISPOSITION

The judgment is affirmed. Miller’s “Motion for Judicial Notice,” filed March 11, 

2021, is DENIED. Miller’s “Motion for Issue, Evidence, or Monetary Sanctions,” filed 

April 13, 2021, is DENIED. Costs are awarded to Bernie.

HILL, P. J.

WE CONCUR:

DETJEN, J.

MEEHAN, J.