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SUPERIOR COURT OF CALIFORNIA

County of San Francisco

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Department No. 405

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Petitioner,

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CASE RESOLUTION ORDER# 8

FINDINGS & ORDER AFTER HEARING
RE: SUPPORT, VEXATIOUS LITIGANT,
ATTORNEYS' FEES, SANCTIONS,
DISCOVERY & CHANGE OF VENUE

vs.

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Case No.: FDI-111-773974

RICHARD RJFKIN

KIMBERLY CARTY
Respondent.

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On August 23, 2012 the parties appear to address the remaining issues set forth in Case

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Resolution Order#7. Petitioner, Richard Rifkin, appears with new counsel, Flora Garcia

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Sepulveda, and Respondent, Kimberly Carty, appears with counsel, L. Bailey Penzotti.

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Hereafter, the parties respectively are referred t o as Petitioner or father and Respondent or

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mother. 1Iaving considered the evidence offered, the arguments of counsel and the parties'

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subsequent submissions, the Court issues the following Order.

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//

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CaseNo.: FDI-11-773974

Case Resolution Order#

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

Support

Father seeks child and spousal support. He testifies that his only source of income is

$1,189 in disability payments as a consequence of his recent operation for throat cancer. He

states that he went to Los Angeles to resume work as a mortgage broker but that the issuance of

the CLETS restraining order precludes him from obtaining the requisite license. At this time, he

bas no idea how to pursue employment. Petitioner's current I & E reflects expenses of $4,330.

He testifies that he receives family help and/or loans but does not provide any detail regarding

such support apart from his I& E which states that $3,141 of his expenses

In the Statement of Decision filed on July 27, 2012, there is a quotation from an email authored

are

"paid by others".

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by Petitioner wherein he states that he has the full support of his family, his family's resources

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have "no frnancial limits whatsoever" and as a consequence, he has more resources than mother.

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The record also reflects that father has retained more than one attorney in the course of this

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litigation and estimates that he has paid attorneys approximately $40,000 and owes counsel

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approximately that sum.

Mother is employed as an accountant on a contract basis at the rate of $6,250 per month.

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Presently, she is looking for work in the Los Angeles area but has yet to secure a position. Her

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temporary position in the Bay Area is to end in the near term. Mother's I & E reflects health

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care insurance costs of $249 and $50 of uninsured medical costs.

Father's medical condition is undisputed and beyond the disability payments, his source

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of income is ambiguous. In calculating child support, the Court imputes to father $4,330 per

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month based on his current expenses and the ambiguity of his responses to questions regarding

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the source of funds he receives from family and others.

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As noted above, Petitioner appears at the above hearing with counsel and as recently as February2012, he appears

at the first Case Resolution Conference with counsel from a well known family law firm.
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Case No.: FDI-11-773974

Case Resolution Order# 8

Given what can be discerned, it is appropriate to modify child support based on the

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parties' present circumstances. Based on the attached Dissomaster calculation, father is to pay

monthly child support as of October 1, 2012 in the amount of$563 to mother.

Petitioner's request for spousal support is denied. This is a short term marriage;

Petitioner has engaged in domestic violence and a campaign of harassment toward Respondent.

It would be inequitable given the circumstances of this case to grant Petitioner's request.

Motion to Find Petitioner to Be a Vexatious Litigant

Respondent's motion gives Petitioner timely notice. The motion is based on CCP

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391(b)(3): "In any litigation while acting in propria persona, [vexatious litigant means a person

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who] repeatedly files unmeritorious motions , pleadings, or other papers, conducts unnecessary

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discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary

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delay." In support of the motion, Respondent offers the following facts:

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A Temporary Restraining Order is entered against Petitioner on or about December 22,

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2009 in which mother is granted temporary sole legal and physical custody of the

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parties' child, Chaim, born September 2, 2008.

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Father responds while represented by counsel with an ex parte request that asserts that

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mother is a risk to abduct, abuse and neglect their minor child as well as charging

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mother with fraud.

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There are seven continuances before the Marin County Superior Court addresses these

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issues in the course of a two day hearing. In the interim, Petitioner becomes a self-

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represented litigant on April 22, 2010.

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As a self-represented litigant, Petitioner files a motion on June 23, 2010 asserting that

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Respondent is a risk to abduct, abuse and neglect Chaim, mother's children from a prior

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marriage and again accusing mother of fraud.

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Case No.: FDI 11-773974

Case Resolution Order#

On August 5, 2010 Petitioner objects to the recommendation from the Marin Family

Court Services regarding custody and visitation again asserting that mother is a risk to

abduct, abuse and neglect Chaim as well

as

her other two children.

On August 9, 2010 the Marin County Superior Court enters a Restraining Order After

Hearing against Petitioner wherein the above allegations of Petitioner are before the

Court and rejected.

abuse and neglect Chaim, mother's other children and again accuses mother of fraud.

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On September 16, 2010, Petitioner again alleges that Respondent is a risk to abduct,

The same allegations are made by Petitioner on the dates indicated -

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October 14, 2010 in Opposition to the report of Marin's Family Court Services

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March 10, 2011 ex parte application to modify custody/visitation that is denied

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April 13, 2011 ex parte application to modify custody/visitation that is denied

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July 7, 2011 OSC to modify custody/visitation

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July 28, 2011 ex parte request to modify custody/visitation that is denied

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August 1, 2011 in filings seeking to hold Respondent in contempt

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August 5, 2011 ex parte application to change exchange location

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September 27, 2011 ex parte application to modify custody/visitation

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October 27, 2011 ex parte application and declaration of contempt2

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November 17, 2011 ex parte application re contempt

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January 3, 2012 additional contempt allegations

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February 22, 2012 another contempt allegation

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April 4, 2012 seeking a DV TRO against Respondent's son

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May 23, 2012 ex parte application to modify custody/visitation

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2 other ex parte applications

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filed by Petitioner on November2, 7, 11 and30 related to the pending matters.

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Case No.: FDI-11-773974

Case Resolution Order# 8

June 11, 2012 ex parte application to modify custody/visitation

Respondent points out that the issue of mother posing a risk of abducting, abusing and

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neglecting Chaim and asserted allegations of fraud is first raised in December 2009 and is

rejected on January 10, 2010 by the Marin Superior Court. Moreover, the Marin Superior Court

holds an evidentiary hearing on August 9, 2010 to address child custody, visitation and

Respondent's request for a Domestic Violence Restraining Order rejecting father's contentions

and granting mother the protection of a restraining order as well as setting up the custody and

visitation plan. As the record reflects, Petitioner continues to litigate this issue, using one tactic

after another.
On January 18, 2012, this Court on its own motion moved this case from a regular law

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and motion department and placed it in the Court's Case Resolution program that manages high

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conflict cases by defining the issues, setting a plan to litigate the issues and requiring that all

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requests for a hearing first be reviewed by the Judge overseeing the case. That did not stop

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Petitioner's repeated filings but it did put a structure around the claims culminating in the

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evidentiary hearings on May 27 -29 and the above hearing on August 23.
The decision in Bravo v. lsmaj (2002) 99 Cal.App.4m 211, 224 holds:

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The primary goal of the vexatious litigant statutes is to curb misuse of the court system by

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unmeritorious lawsuits. This objective is accomplished by requiring vexatious litigants to post

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individuals acting in propria persona who repeatedly relitigate the same issues or file numerous

security to continue to pursue a pending matter or to obtain permission before filing a new
lawsuit. Only vexatious litigants are subject to such burdens. (Citation omitted.)
In Galin v. Allenby (2010) 190 Cal.App.4m 616, 639, the Court of Appeal holds that CCP

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391(b)(3) is met when it is shown that the objective of a party's litigation tactics is to "grind

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down the other side" or to "keep them from 'being able to move forward' in the litigation". That

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is the showing that Respondent has made. Moreover as explained in the Statement of Decision

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filed on July 27, 2012, Petitioner warns Respondent of that unless she agrees to his terms for

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Case No.: FDI-11-773974

Case Resolution Order# 8

child custody and removal of the restraining order that Petitioner will grind her down. Petitioner

proceeds to do just that all the while stifling Respondent's ability to address her request to move.

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For the reasons stated, the Court finds Petitioner to be a vexatious litigant under CCP
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39 1(b)(3). Presently under this Court's Case Resolution program, Petitioner is subject to having
his requests for relief reviewed by the Judicial Officer overseeing the case. However as
explained hereafter, all parties agree to a change of venue to Los Angeles County where both
parties will be residing on or before mid- October. For that reason, the Court finds that
Petitioner is subject to the pre filing requirements of CCP 391. 7 to be implemented by the Los
Angeles County Superior Court.

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Attorneys' Fees
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Petitioner requests attorneys' fees based o n the parties disparate income. Respondent
requests fees based on Petitioner's conduct in the course of the litigation which is reflected in the
Court's Statement of Decision.

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The Court denies Petitioner's request. The record reflects that he has paid substantial
sums to counsel and yet has seen fit to engage in scorched earth litigation replete with
unmeritorious motions and requests for relief. Despite father's testimony that he only wanted
peace and made repeated offers to do so, the record is directly to the contrary. Petitioner's
definition of settlement is that he gets exactly what he wants and when that does not occur, the
record reflects a pattern of harassing litigation conduct consistent with his express statement in
father's email of July 10, 2011 cited in the Statement of Decision as Exhibit E.

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Respondent also is subject to the same review as part of case management not as a consequence of Respondent's

litigation tactics.
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Case No.: FDlll-773974

Case Resolution Order# 8

The Court grants Respondent's request pursuant to Family Code 271. If ever a case

called for the invocation of this section, this is the case. Petitioner's multiple contempt motions

lacked merit, were filed to delay resolution of the important issue related to the move away and

then when that hearing is concluded, father announces that he does not have an objection and

immediately moves to Los Angeles. He then complains that the visits with his son are not

occurring forthwith in Los Angeles. Of course the visits not occurring there because it takes

time for mother to find employment and complete the move.

The Court finds that Petitioner is responsible for the paymnt of all fees incurred by Ms.

Penzotti ($18,996.96) in representing Respondent in defense of the contempt OSC's and related

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issues as well as certain fees based on the work of Tara Flanagan ($5,200). Petitioner's counsel

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cites work done not directly related to the defense of the contempt OSC's. However, Petitioner's

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new counsel has not had the opportunity to observe what transpires during this period and how

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all of Ms. Penzotti's work is directed to fending off the relentless attacks of Petitioner.

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Change of Venue
Everyone agrees that by mid- October, mother will have relocated to Los Angeles. As a

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consequence, venue shall be transferred to Los Angeles and a separate order shall issue on that

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subject.

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Discovery Limits
Subsequent to the issuance of the Statement of Decision, Petitioner causes a subpoena

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duces tecum to be issued to Jodi Klugman-Robb, the therapist who testified at the hearing. At

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the hearing on August 23, Petitioner states that he shall withdraw the subpoena. The issuance of

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the subpoena is, without question, harassment of a trial witness and such conduct must cease.

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Given Petitioner's conduct, he is hereby ordered to refrain from issuing subpoenas to any person

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who testified at the hearing without seeking prior court approval to do so.

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Case No.: FDI-11-773974

Case Resolution Order# 8

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Summary of Findings
1. Respondent is entitled to receive child support in the sum of $563 per month to be paid
starting on the first date of each month starting

as

of October 1, 2012.

2. Petitioner is not entitled to spousal support.

3. Petitioner is declared to be a vexatious litigant and is subject to the pre-filing

requirements ofCCP 391(c).

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4. Petitioner is obligated to pay attorneys fees in the amount of $24, 196.96 pursuant to

Family Code 271; $18,996.96 of that sum is to be paid to the Superior Court of San

Francisco.

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5. Venue is to be transferred to Los Angeles County. The parties are to be equally

responsible for the payment of the fees associated with the transfer.

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6. All pending discovery initiated by Petitioner subsequent to the Statement of Decision

filed July 27, 2012 is stayed pending further Order of the Court.

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September 13, 2012

c

. Mahoney

e Superior Court

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CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

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Case No.: FDI-11-773974

Case Resolution Order # 8

CJBNS.ORG

ATTORNEY, AGENCY. OR PAATY WITHOUT ATTORNEY {NAMEAND AD0Ra5)

TELEPHONE NO

San Francisco
Superior Court of California

ATTORNEY FOR.
CASE NUMBER:

DISSOMASTER REPORT
2012, Monthly

In put Da ta

Father

Mother

Number of children

14/o

0%

Single

HH/MLA

2'

o/o time with NCP

Filing status
#Federal exemptions
+

Guideline (2012)

Cash Flow Analysis

Nets (a djusted)
3,330

Father

Net spendable income

2,767

5,285

0/o combined spendable

34.4%

65.6/o

1,000

1,279

3,228

4,940

Payment (cost)/benefit

(563)

563

Net spendable income

2,767

5,285

34.4%

65.6%

Presumed

-563

Other taxable income

Basic CS

(563)

TANF plus CS received

Add-ons

Support

Total taxes

Per Kid

New-spouse income

Child 1

(563)

Spousal
support

blocked

SS paid other marriage

Retirement contrib if ATI

Nee job-related exp.

Basic CS

Add-ons
Per Kid

Adj. to income (ATI)

(563)

Proposed, tactic 9

Required union dues

(563)
0

CS paid other relationship

Child 1

(563)

Spousal
support

blocked

249

Itemized deductions

Other medical expenses

Property tax expenses

Combined
Savings
No releases

Ded. interest expense

Charitable contribution

Miscellaneous itemized

Required union dues

Mandatory retirement

Hardship deduction
Other gdl. deductions

AMT info (IRS Form 6251)

Child support add-ons

(Rev. January 1, 2009)

cfir

DissoMater 20121

Total

Total taxes
#withholding
allowances
Net wage paycheck/mo

0
0

o/o combined spendable

0/o of saving over gdl

-563

SS paid other marriage

Health insurance

Net wage paycheck/mo

NSl change from gdl

Total

Presumed

#withholding
allowances

Proposed

Other nontaxable income

563

4,722

6,250

Self-employment income

(563)

8,052

Wages + salary

Payment (cost)/benefit

Mother

4,330

salary

Mother

Total

Self-employment income

Wages

Father

Guideline

O"!o

0%

1,000

1,279

3,228

4,940

(563)
0

Default Case Settings

DissoMaster Report (Monthly)

San Francisco, Superior Court of California

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