Lakusta v. Evans et al

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UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
ALEXIS MAGER LAKUSTA,
Debtor.
ALEXIS MAGER LAKUSTA,
Plaintiff,
vs.
MARK H. EVANS, SHARON LA FOUNTAIN,
and ALVIN C. SILVERNAGEL,
Defendants.
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Case No. 02-31521 STC
Chapter 7
Adv. Proc. No. 03-3549 TC
Date: August 11, 2006
Time: 9:30 a.m.
Ctrm: Hon. Thomas E. Carlson
235 Pine Street
San Francisco, CA
MEMORANDUM RE MOTION TO DECLARE
ALEXIS LAKUSTA A VEXATIOUS LITIGANT
At the above date and time, the court held a hearing on the
Motion of Mark Evans to Declare Alexis Lakusta A Vexatious
Signed and Filed: September 08, 2006
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
September 08, 2006
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 03-03549 Doc# 82 Filed: 09/08/06 Entered: 09/08/06 13:46:28 Page 1 of 8

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Litigant. 	This memorandum constitutes the court’s findings of fact
and conclusions of law regarding the Motion.
FACTS
Alexis M. Lakusta (“Lakusta”) filed chapter 11 on June 4,
2002. 	The case was converted to chapter 7 on December 19, 2002.
Lakusta sued Mark Evans (“Evans”) in bankruptcy and state court in
an effort to recover real property that Lakusta had transferred to
Evans prepetition. 	As described in more detail below, Lakusta lost
that litigation, and has been unable to accept this loss.
The First Action
Lakusta filed AP No. 02-3125 against Evans in this court on
June 10, 2002 (the “First Action”). 	The complaint includes the
following allegations. 	Lakusta owned three real properties located
on Old La Honda Road in Woodside, California. 	On March 26, 2002,
Lakusta entered into a general partnership with Evans to develop
548 Old La Honda Road and 579 Old La Honda. 	Evans was to act as
the general contractor. 	By April 22, 2002, Evans convinced Lakusta
to convey his entire interest in 548 Old La Honda, and a “full
interest” in Lakusta’s home at 633 Old La Honda. 	Evans caused the
grant deeds to be recorded, after which he “forcibly removed”
Lakusta from the property at 633 Old La Honda and took Lakusta’s
valuable personal property from the premises. 	The transactions
alleged in the First Action are hereinafter collectively referred
to as the “2002 Transactions”.
Shortly after Evans filed a timely answer in the First Action,
the parties settled the action via a signed settlement agreement
(the “Settlement Agreement”). 	This court signed an order approving
Case: 03-03549 Doc# 82 Filed: 09/08/06 Entered: 09/08/06 13:46:28 Page 2 of 8

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the settlement on August 20, 2002 (the “Settlement Order”). 	Under
the express terms of the Settlement Agreement, Lakusta and Evans
released all claims they had against each other, including a
release of all claims under California Civil Code section 1542.
Two and one-half months after entry of the Settlement Order,
Evans filed a motion to enforce the Settlement Agreement, and
Lakusta countered with a motion to vacate the Settlement Order.
Prior to a determination on these cross motions, the First Action
was dismissed via a stipulation filed on June 18, 2003.
The Second Action
On August 5, 2003, Lakusta filed an action against Evans in
San Mateo Superior Court (No. CIV 433241) seeking to void the March
2002 transfer to Evans of 633 Old La Honda (the “Second Action”).
Lakusta filed the Second Action while his chapter 7 case was open,
despite the fact that the chapter 7 trustee had not abandoned to
Lakusta any litigation claims, and notwithstanding the release of
claims against Evans. 	In the Second Action, Lakusta alleged that
the contract transferring 633 Old La Honda did not comply with
California Civil Code section 1695. 	The complaint also named as
defendants Sharon La Fountain, a California notary public, and
Alvin C. Silbernagel, a licensed California real estate broker.
Evans filed a timely notice of removal of the action, which was
assigned Adv. Proc. No. 03-3549.
The Second Action proceeded to trial, and this court entered
judgment in favor of Evans on June 7, 2005 (the “Judgment”). 	The
Judgment provided that the Settlement Agreement was fully
Case: 03-03549 Doc# 82 Filed: 09/08/06 Entered: 09/08/06 13:46:28 Page 3 of 8

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enforceable, and that the Second Action was barred as a result of
the release provisions in that Agreement.
Lakusta did not appeal the Judgment. 	On June 21, 2005,
Lakusta pro se filed a Rule 60(b) motion for amendment of the
Judgment, which the court denied on the basis that the motion
identified no legally cognizable grounds for relief. 	The motion,
exhibits, and related memorandum of points and authorities totaled
34 pages.
On June 8, 2006, almost one year after denial of the first
Rule 60(b) motion, Lakusta pro se filed a second Rule 60(b) motion.
This second motion, exhibits, and related memorandum of points and
authorities totaled 96 pages. 	The court also denied the second
motion on the ground that it stated no basis for relief from
judgment cognizable under Rule 60(b).
The Third Action
On April 15, 2006, Lakusta filed an emergency motion for
relief from stay to file a new action against Evans before the
statute of limitations ran. 	This court, which was out of town,
granted the motion in order to preserve the statute of limitations
while the court decided whether the action should proceed.
Pursuant to the stay-relief order, on April 21, 2006, Lakusta filed
an action in San Mateo Superior Court against Evans, Evans’ company
(Old La Honda Properties), and Evans’ former counsel in the Second
Action, asserting a breach-of-contract claim regarding the 2002
Transactions (the “Third Action”). 	Also on April 21, 2006, Lakusta
filed a motion to compel the chapter 7 trustee to abandon the
estate’s interest in all claims against Evans, his agents and
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employees, including but not limited to all of the claims alleged
in the First Action and in the Second Action. 	Lakusta’s counsel
withdrew prior to the scheduled hearing on the motion to abandon,
and substituted Lakusta in pro per.
The court denied the motion for abandonment, finding that the
Trustee remained the real plaintiff in any new action, that the
Third Action also arose out of the 2002 Transactions, and that
Lakusta therefore improperly was seeking to relitigate the issues
resolved via the Judgment. 	The court also vacated the limited
stay-relief order and ordered the Trustee as plaintiff real-party-
in-interest to dismiss the Third Action.
On May 22, 2006, Lakusta filed a Notice of Appeal of the order
denying the motion for abandonment. 	That appeal apparently still
is 	pending.
Since the 2002 settlement between Lakusta and Evans, Evans has
incurred more than $200,000 in attorney fees to defend against
Lakusta’s lawsuits and motions regarding the 2002 Transactions.
Lakusta filed no written opposition to Evans’ present Motion
to Declare Lakusta A Vexatious Litigant, but rather appeared at the
hearing and stated on the record at the hearing that he had a
lengthy new Rule 60(b) motion that he wished to have adjudicated.
LAW
A bankruptcy court has authority to protect and enforce its
judgments. 	11 U.S.C. § 105(a); Walker v. Stanley, 231 B.R. 343
(N.D. Cal. 1999) (“There is strong precedent establishing the
inherent power of federal courts to regulate the activities of
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abusive litigants by imposing carefully tailored restrictions under
the circumstances.”) (citations omitted).
The court should weigh the following factors in determining
whether or not to restrict a litigant’s future access to the court:
(1) the litigant’s history of litigation and in
particular whether it entailed vexatious, harassing or
duplicative lawsuits; (2) the litigant’s motive in
pursuing the litigation . . . (3) whether the litigant is
represented by counsel; (4) whether the litigant has
caused needless expense to other parties . . . or has
posed an unnecessary burden on the courts and their
personnel; and (5) whether other sanctions would be
adequate to protect the courts and other parties. . . .
The final and ultimate factor is ‘whether a litigant who
has a history of vexatious litigation is likely to
continue to abuse the judicial process. . . .’
Walker, 231 B.R. at 350-51 (quoted case omitted).
Lakusta had a full and fair opportunity to litigate all claims
arising out of the 2002 Transactions. 	Judgment was entered against
him more than one year ago. 	The Judgment is final because Lakusta
did not appeal it. 	Lakusta has had two additional chances to
obtain amendment of the Judgment, but has been unable to identify a
proper basis for doing so, causing needless expense to Evans.
Lakusta is able to impose expense on Evans, who is represented by
counsel, without imposing expense on himself, because Lakusta
represents himself. 	Absent an injunction, Lakusta is likely to
continue trying to relitigate his alleged entitlement to one or
more of the La Honda properties, as evidenced by his new Rule 60(b)
motion, the state-court complaint filed in April, and his appeal of
the order denying the motion to compel abandonment of the
litigation claims. 	There does not appear to be any other sanction
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that would be adequate to protect Evans regarding the 2002
Transactions.
Accordingly, the court will enter a separate order providing
that, absent prior permission from this court, Lakusta is
permanently enjoined from filing any action in any court against
Mark Evans, Sharon La Fountain, Alvin C. Silbernagel, Old La Honda
Properties, or their agents or employees, regarding the 2002
Transactions, the Settlement Agreement, the Settlement Order, or
the Judgment.
**END OF MEMORANDUM**
Case: 03-03549 Doc# 82 Filed: 09/08/06 Entered: 09/08/06 13:46:28 Page 7 of 8

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Court Service List
Alexis Mager Lakusta
1259 El Camino Real, Suite 245
Menlo Park, CA 94025-4208
Catherine Schlomann Robertson, Esq.
225 West Santa Clara Street
Suite 1500
San Jose, CA 95113-1700
Aron M. Oliner, Esq.
Law Offices of Duane Morris
1 Market Spear Tower #2000
San Francisco, CA 94105-1411
Case: 03-03549 Doc# 82 Filed: 09/08/06 Entered: 09/08/06 13:46:28 Page 8 of 8