Burke v. Erik's Bike Shop CA4/3

Opinion

Filed 8/31/26 Burke v. Erik’s Bike Shop CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

GREGORY BURKE,

Plaintiff and Appellant, G066343 v. (Super. Ct. No. 30-2025- 01457874) ERIK’S BIKE SHOP, INC., OPINION Defendant and Respondent.

Appeal from an order of the Superior Court of Orange County, Kimberly A. Knill, Judge. Reversed and remanded with instructions. Gregory Burke, in pro. per. for Plaintiff and Appellant. Newmeyer & Dillon, James J. Ficenec, and Christopher C. Steckbauer; Winthrop & Weinstine, and Anthony Todero for Defendant and Respondent. Appellant Gregory Burke appeals from an order declaring him a vexatious litigant and prohibiting him from filing any new state court litigation in propria persona without first obtaining leave to do so. Burke contends the order must be reversed because the trial court misapplied case law. We agree. We therefore reverse the order and remand with instructions. We express no opinion on the merits of the motion. FACTUAL AND PROCEDURAL BACKGROUND The underpinning of this case is a civil matter regarding the sale of a bike. In June 2025, Erik’s Bike Shop, Inc. (Erik) filed a motion to have Burke declared a vexatious litigant. Burke opposed the motion arguing, among other things, that some of the cases Erik cited as adverse determinations were settlements with merit, and thus, should not be considered adverse determinations. He provided redacted settlement agreements in support. Before the trial court held a hearing on the vexatious litigation determination, it ordered Burke to provide unredacted settlement agreements for three of the cases Erik cited. The court then issued a tentative ruling denying Erik’s motion to declare Burke a vexatious litigant because Burke had demonstrated three of the seven actions Erik cited were not frivolous. After considering the arguments of the parties, both written and oral, the trial court granted Erik’s motion. In its written ruling, the court listed six court filings Burke had filed that were adversely determined against him. Burke had voluntarily dismissed four of the actions and two of the appeals. The court explained that “settling a case then dismissing it constitute[d] an adverse determination.” In support, the court cited “the most 2 recent case addressing the issue,” Karnazes v. Lauriedale Homeowners Assn. (2023) 96 Cal.App.5th 275 (Karnazes). Burke timely appealed. DISCUSSION Burke challenges the order granting Erik’s motion to declare him a vexatious litigant. He argues we should reverse the trial court’s order because the court applied the wrong legal standard when it concluded he had at least five litigations finally determined adversely against him. He also contends the court abused its discretion by changing its tentative ruling, improperly determining the denial of a writ constituted a litigation finally determined adversely, and incorrectly accepting there is a limit on how many cases a self-represented litigant may file. I. VEXATIOUS LITIGANT DECLARATION A. Legal Principles “The vexatious litigant statute ([Code Civ. Proc.,] § 391 et seq.) was enacted ‘“to curb misuse of the court system”’ by ‘“persistent and obsessive” litigants.’” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1198.) “‘A court exercises its discretion in determining whether a person is a vexatious litigant’” based on statutory criteria. (In re Marriage of Deal (2020) 45 Cal.App.5th 613, 621; see [Code Civ. Proc.,] § 391, subd. (b).) As pertinent to this appeal, a vexatious litigant includes anyone who “[i]n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.” (Code Civ. Proc., § 391(b)(1).)

3 “Once a person has been declared a vexatious litigant, the court, on its own or a party’s motion, may ‘enter a prefiling order which prohibits [the person] from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.’” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1170; see Code Civ. Proc. § 391.7.) B. Standard of Review “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 v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265–1266.) “Questions of statutory interpretation, however, we review de novo.” (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1499.) “[W]hen the trial court’s order involves the interpretation and application of . . . case law, questions of law are raised and those questions of law are subject to de novo (i.e., independent) review on appeal. [Citation.] It is an abuse of discretion for a trial court to misinterpret or misapply the law.” (Prigmore v. City of Redding (2012) 211 Cal.App.4th 1322, 1333–1334.) C. Analysis Burke contends the trial court improperly applied Karanazes, supra, 96 Cal.App.5th 275 in determining all dismissals are considered adverse determinations. We agree. In Karanazes, supra, 96 Cal.App.5th 275, the appellate court concluded the appellant was a vexatious litigant because she had 4 “‘commenced, prosecuted, or maintained’ nine appeals” that had “been ‘finally determined adversely’ to her.” (Id. at p. 278.) The appellant argued she was “not vexatious because some of the appeals were resolved on terms satisfactory to her.” (Id. at p. 281.) The appellate court found “no evidence to support” her “self-serving statement.” (Ibid.) The appellate court explained that even if it were true, “a dismissal—voluntary or not—constitutes an adverse determination; it is the loss that matters, not whether a litigant is satisfied with the result.” (Ibid.) Applying this definition, the appellate court concluded nine appeals had been determined adversely to appellant. (Ibid.) In Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779–780 (Tokerud) the trial court found appellant was a vexatious litigant because he had prosecuted in propria persona five actions within the previous seven years, and all of them were finally determined adversely to him. (Id. at p. 778.) On appeal, appellant challenged three of the five matters, arguing he had voluntarily dismissed them without prejudice. (Id. at pp. 778, 781.) The Court of Appeal rejected appellant’s contention that a voluntarily dismissed action cannot be counted for purposes of the vexatious litigant statute, stating this contention was “contrary to the underlying intent of that legislation.” (Id. at p. 779.) The Tokerud court explained that “[a]n action which is ultimately dismissed by the plaintiff, with or without prejudice, is nevertheless a burden on the target of the litigation and the judicial system, albeit less of a burden than if the matter had proceeded to trial. A party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the actions through to completion. The difference is one of degree, not kind.” (Ibid.) However, the Tokerud court explained that “[i]n the comparable context of a malicious prosecution action, a voluntary, unilateral dismissal of 5 the underlying dispute is generally considered a termination in favor of the defendant. [Citation.] Only where the dismissal leaves some doubt regarding the defendant’s liability, as where the dismissal is part of a negotiated settlement, will the dismissal not be deemed a termination favorable to the defendant.” (Tokerud, supra, 38 Cal.App.4th at pp. 779–780, italics added, fn. omitted.) The Tokerud court further explained a plaintiff opposing a vexatious litigant determination creates “doubt” about a previous dismissal only by setting forth contrary proof. (Id. at p. 780 & fn. 3 [“[v]oluntary dismissal is only prima facie proof the litigation was ‘determined adversely’ to the plaintiff,” who “may rebut this showing by contrary proof”].) For example, if a landlord’s unlawful detainer complaint causes a nonpaying tenant to voluntarily vacate, then the landlord may have achieved the goal of the litigation, even though the landlord thereafter dismissed it. (Id. at pp. 779– 780 and fn. 3.) Here, the trial court seemingly acknowledged Burke could show some of the voluntary dismissals were not adverse terminations because they were part of negotiated settlements. At an October 2025 hearing, the court ordered Burke to submit the unredacted settlement agreements in three of the seven cases Erik cited.1 Moreover, in its December 2025 tentative ruling, it denied Erik’s motion and explained three of the seven cases Erik cited were not frivolous. In the court’s final ruling, however, it stated it was relying on “the most recent case” addressing voluntary dismissals, Karanazes, supra, 96 1 Despite the trial court’s order, Erik contends in his reply brief that Burke “improperly filed” confidential settlement agreements related to the motion. Erik also contends that, at the October 2025 hearing, the court “instructed Burke not to file any additional documents.” Erik’s position is belied by the record.

6 Cal.App.5th 275. Relying on Karnazes, the court determined “settling a case then dismissing it constitutes an adverse determination.” Consequently, the court did not analyze the potential “contrary proof” that could have rebutted the presumption that some of the voluntary dismissals were adverse determinations. (Tokerud, supra, 38 Cal.App.4th at p. 780, fn. 3.) This was error. The Karnazes court did not find the appellant was vexatious based on voluntary dismissals. Rather, all the adverse determinations in that case were appeals that had been involuntarily dismissed or affirmed on appeal. (Karanazes, supra, 96 Cal.App.5th 275, 278–279.) Moreover, the Karnazes court did not specifically disapprove of or overrule Tokerud in its analysis. (Id. at p. 281.)2 Thus, the trial court abused its discretion by failing to consider Burke’s evidence that may have rebutted the prima facie finding the dismissals were determined adversely to him. (Tokerud, supra, 38 Cal.App.4th at p. 780 & fn. 3.) II. SUMMARY WRIT DENIAL Burke next contends the trial court erred in finding a denial of a summary writ constitutes an adverse determination under Code of Civil Procedure section 391. Burke appears to either misunderstand or misstate the record. The writ he takes issue with, Burke v. Superior Court of Orange County (case number G061869), is listed as case number five in the court’s minute order. However, the order indicates the court relied on actions one 2 To the extent Karnazes can be read to hold a dismissal, whether voluntary or involuntary, constitutes an adverse determination for purposes of the vexatious litigant analysis in every circumstance, we disagree.

7 through four, six, and seven, not five. Thus, the record shows the court did not determine the denial of a summary writ constitutes an adverse determination under Code of Civil Procedure section 391. III. TENTATIVE RULING Burke further argues the trial court abused its discretion by changing its tentative ruling. In support, Burke cites case law for the propositions that a court abuses its discretion when it applies an incorrect legal standard, disregards controlling authority, or fails to reconcile its ruling with its own factual findings. The cases cited by Burke are irrelevant to the issue of whether the court may issue a final order that is different than its tentative ruling. In contrast, it is well established “a trial court’s tentative ruling is not binding on the court.” (Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 300.) The court is free to change its ruling until it issues its final order. (Ibid; Guzman v. Visalia Community Bank (1999) 71 Cal.App.4th 1370, 1378 [“A tentative ruling is just that, tentative”].) IV. LIMIT ON FILINGS BY SELF-REPRESENTED LITIGANT Finally, Burke claims the trial court “appeared to accept” that Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 49 holds there is an implicit limit on how many cases a self-represented litigant may file. Burke does not cite to any part of the record showing the trial court relied on Wolfgram in making its ruling, and we find none.

8 DISPOSITION We reverse the order finding Burke to be a vexatious litigant and entering a prefiling order. We remand with directions to the court to apply Tokerud, supra, 38 Cal.App.4th 775 and to enter a new ruling on the motion. Burke is entitled to his costs on appeal.

DELANEY, ACTING P. J.

WE CONCUR:

GOODING, J.

SCHWARM, J.* *Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.