Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC101482. Terry B. Friedman, Judge.
Theodore A. Pinnock for Plaintiff and Appellant.
Westlake Law Group, David Blake Chatfield for Defendant and Respondent.
ARMSTRONG, J.
Plaintiff Barbara Humphrey (Humphrey) challenges the orders of the trial court, issued under Code of Civil Procedure section 391, declaring her to be a vexatious litigant, requiring her to post a $10,000 bond, ordering her to obtain leave of court before filing any new litigation, and dismissing her lawsuit against defendant Gingerbread Court, L.P. upon her failure to post the bond. Because we determine that Humphrey does not fit within any of the statutory definitions of a vexatious litigant under section 391, we reverse the judgment and orders.
FACTUAL AND PROCEDURAL BACKGROUND
We deny defendant's request that we take judicial notice of the declaration of Noni Gotti as well as of eight civil case summary records of the Los Angeles Superior Court. These matters were not before the trial court, and have no bearing on our resolution of this appeal.
After securing a fee waiver, Humphrey, through her attorney, Thomas Pinnock (Pinnock), filed suit against defendant alleging violations of the Americans With Disabilities Act (42 U.S.C. §§ 12182(a) et seq.), the Unruh Act (Civ. Code, §§ 51 and 52), and the Disabled Persons Act (Civ. Code, §§ 54, 54.1 and 54.3.) Specifically, Humphrey alleged that she is a person with physical impairments which substantially limit her ability to walk, and that she uses a motorized wheelchair for mobility. She was unable to enter defendant's commercial property, which includes a variety of shops on Venice Beach, because there were multiple steps but no ramp, and no directional signage to an accessible entrance. Humphrey sought injunctive relief, statutory damages and attorney fees.
Defendant filed a motion seeking to have Humphrey and her counsel declared vexatious litigants. The basis for the motion was not that Humphrey had filed multiple, unsuccessful lawsuits in pro. per. (she had not), but that her counsel, Pinnock, was using her as a "straw plaintiff" in order to skirt the vexatious litigant statute. In this connection, defendant submitted evidence that Pinnock filed over 2, 000 lawsuits against nearly 10, 000 small businesses, either in his name, in the name of an association formed by him, or in the name of indigent individuals who acted as plaintiffs in name only, including more than 50 lawsuits filed on Humphrey's behalf during 2009, none of which resulted in a judgment for Humphrey.
The trial court recognized that Humphrey did not meet the definition of a vexatious litigant under Code of Civil Procedure section 391. The court nevertheless declared Humphrey a vexatious litigant, ordered her to post $10,000 security within 20 days, and issued a pre-filing order prohibiting her from filing any new litigation without first obtaining leave of the court's presiding judge. Humphrey failed to furnish the $10,000 security, and the court dismissed her lawsuit.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Humphrey appeals the dismissal of her action together with the orders declaring her to be a vexatious litigant and requiring her to obtain leave of court to file future lawsuits.
Standard of Review
"'A court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] We uphold the court's ruling if it is supported by substantial evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment.' (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219, 120 Cal.Rptr.2d 879.) Questions of statutory interpretation, however, we review de novo. (Ibid.)" (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1498-1499.)
DISCUSSION
Section 391, subdivision (b)(1) describes a vexatious litigant as a person 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." As noted above, the trial court recognized that Humphrey did not fit within this definition of a vexatious litigant, because she had never filed any litigation in pro. per., but had always been represented by Pinnock. Nevertheless, the court relied on the reasoning of Camerado Insurance Agency, Inc. v. Superior Court (1993) 12 Cal.App.4th 838 (Camerado) to conclude that Humphrey is subject to the vexatious litigant law.
Three additional definitions of the term appear in section 391, subdivision (b), none of which defendant contends are applicable here.
The issue in Camerado, supra, was whether section 391, subdivision (b) "applies to a litigant who is presently represented by counsel, despite having commenced five litigations in propria persona in the previous seven years." (Id. at p. 840.) The appellate court ruled that both a plain reading of the statute and the legislative purpose in enacting the law supported the conclusion that a party need not be acting in pro. per. in the current litigation in order to be declared a vexatious litigant pursuant to section 391, subdivision (b)(1), so long as the party was self-represented in at least five lawsuits in the immediately preceding seven years.
Defendant acknowledged that the facts of Camerado differed from those present in this case, so that Camerado was not directly applicable. It argued, however, that just as a party cannot avoid the vexatious litigant statute by hiring a lawyer to prosecute the current litigation, a lawyer who is actually litigating a matter on his own behalf may not "hire" a straw plaintiff in order to avoid being declared a vexatious litigant. The trial court found this reasoning compelling. However, rather than declare Pinnock a vexatious litigant, the court found Humphrey to be one. This was error.
Not only does Humphrey not fit the statutory definition of a vexatious litigant, but she is not among the class of persons whose behavior the Legislature sought to address with the enactment of section 391. If, as defendant asserts, Humphrey is merely a straw plaintiff whom Pinnock is manipulating for his own ends, she is no less a victim of Pinnock's allegedly spurious tactics than is defendant. She has never filed a lawsuit in propria persona; thus there is no basis in law to circumscribe Humphrey's right to seek redress from the courts as there is in the case of the "obsessive and persistent [pro. per.] litigant[] whose conduct can cause serious financial results to the unfortunate object of his attack." (Camerado, supra, 12 Cal.App.4th at p. 842, quoting First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 867.) If, as defendant argues, Pinnock retains disabled persons to act as straw plaintiffs in these lawsuits, having entered into no genuine attorney client relationship with the named plaintiffs and with no ability on the part of the putative plaintiffs to control the litigation, then Pinnock is "an attorney at law acting in propria persona" (§ 391, subd. (d)), and is, as such, himself subject to the provisions of section 391 et seq.
DISPOSITION
The judgment of dismissal as well as the orders declaring Humphrey a vexatious litigant and requiring her to post bond and to seek leave of court before filing any subsequent litigation are reversed. Each party to bear their own costs.
We concur: TURNER, P. J., MOSK, J.