Opinion
A118370
9-8-2008
HARRY J. WILLIBY, Plaintiff and Appellant, v. JOHN F. KENNEDY UNIVERSITY et al., Defendants and Respondents.
Not to be Published
Harry J. Williby appeals the dismissal of his action, resulting from his failure to furnish security after being ordered to do so pursuant to the vexatious litigant law (Code Civ. Proc., § 391 et seq.). He challenges the trial courts decision to reconsider a previous order, which had denied defendants requests for an order requiring security, as well as the decision issued after reconsideration, which granted those requests. As discussed below, we find no merit in Willibys contentions and affirm.
Further statutory references are to the Code of Civil Procedure unless otherwise indicated.
BACKGROUND
Williby filed a complaint in September 2006, naming as defendants John F. Kennedy University (JFKU), Saint Marys College of California (SMC), and seven individually named persons employed by SMC or JFKU. The complaint primarily sought damages based on theories of misrepresentation, conspiracy, battery, racial and sexual harassment, infliction of emotional distress, and negligence.
In November 2006, SMC filed a motion to declare Williby a vexatious litigant and to require him to furnish security before proceeding with his action as to SMC and its named employees. (See §§ 391.1; 391.3; 391.4.) In January 2007, JFKU filed a similar motion as to itself and its individually named employees.
On February 27, 2007, the trial court filed its order regarding these motions. It first determined that Williby was a vexatious litigant within the meaning of section 391, subdivision (b)(1). The court, however, denied both motions to the extent they sought an order requiring Williby to furnish security in order to proceed against the moving parties. It did so "reluctantly," based on the controlling authority set out in Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571 (Devereaux).
On March 12, 2007, SMC filed a motion under section 1008, seeking reconsideration of the February 27 order to the extent it had denied SMCs request for an order requiring Williby to furnish security. The ground for the motion was essentially the emergence of "new . . . law." (See § 1008, subd. (a).) Specifically, the Supreme Court—only two days after the February 27 order—had filed its decision in Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780 (Moran). That decision disapproved the holding in Devereaux, supra, 32 Cal.App.4th 1571, on the very point the trial court had found to be controlling as to the requests for security. On March 14, JFKU filed a similar motion, seeking reconsideration of the denial of its own request for security.
A motion for an order requiring a vexatious litigant to furnish security must be based on a showing that "there is not a reasonable probability that [a plaintiff determined to be a vexatious litigant] will prevail in the litigation against the moving defendant." (§ 391.1.) The Court of Appeal in Devereaux, supra, 32 Cal.App.4th 1571, held that, to make this showing, a moving defendant must demonstrate that "the plaintiffs recovery is foreclosed as a matter of law or that there are insufficient facts to support recovery by the plaintiff on its legal theories, even if all the plaintiffs facts are credited." (Id. at pp. 1582-1583.) In Moran, supra, 40 Cal.4th 780, the Supreme Court disapproved Devereaux on this point, holding that under section 391.1 a trial court was not required to assume the truth of a vexatious litigants factual allegations, but was authorized to hold an evidentiary hearing in order to receive and weigh evidence before deciding whether that litigant had a "reasonable probability" of prevailing. (Moran, at pp. 782, 785, fn. 7.)
The trial court held a hearing on the defendants motions for reconsideration on April 25, 2007. At that time, Williby argued that the court should deny the motions as untimely. The court declined to decide the issue of timeliness, noting it would reconsider its ruling on its own motion in light of the recent decision Moran, supra, 40 Cal.4th 780. The court determined it would render a decision on reconsideration after conducting an evidentiary hearing as now permitted under Moran, and set that hearing for May 16. At this point, Williby sought to disqualify the judge from conducting the evidentiary hearing, interposing an oral "peremptory challenge." The court denied Willibys challenge, stating it was "too late." (See § 170.6, subd. (a)(2).)
See footnote 2, ante.
Williby did not appear at the evidentiary hearing scheduled for May 16, 2007. At the commencement of the hearing, the trial court received from Williby, by facsimile transmission, an ex parte application for continuance. The court denied the application after attempting unsuccessfully to reach Williby by telephone. The court emphasized its denial was based both on the applications procedural defects and its lack of merit, noting in particular that Williby had not given proper notice to other parties, and that his application failed to state facts that might justify the grant of a continuance requiring the reappearance of several defense witnesses.
On May 23, 2007, the trial court filed its formal orders after reconsideration. Although it had previously stated it would reconsider the order of February 27 on its own motion, the court in these orders found that the motions for reconsideration filed by SMC and JFKU were, in fact, timely, and that granting these motions to reconsider was appropriate in light of Moran, supra, 40 Cal.4th 780. The court noted it had set and conducted an evidentiary hearing pursuant to the new "standard" set out in Moran. After weighing the evidence under that standard, the court concluded there was not a reasonable probability that Williby would prevail in his litigation against either SMC and its employees or JKFU and its employees. The court accordingly directed Williby to furnish security in a total amount of $200,000 on or before June 11, 2007.
On June 28, the court entered a judgment of dismissal following Willibys failure to post the required security. (See § 391.4.) This appeal followed. (§ 904.1, subd. (a)(1).)
DISCUSSION
A. Timeliness of the Motions for Reconsideration
Williby contends the motions for reconsideration filed by SMC and JFKU were untimely under section 1008 and that the trial court erred in making a contrary determination.
A partys motion for reconsideration must be filed "within 10 days after service upon the party of written notice of entry of the order." (§ 1008, subd. (a).) Here the trial court filed the order in question on February 27, 2007. The clerk of the court served written notice of the order by mail on that same date. As we have noted, SMC and JFKU filed their motions for reconsideration on March 12 and 14—that is, 13 and 15 days, respectively, after the clerks service of notice.
The clerk also provided the parties with a "courtesy copy" of the order by facsimile transmission on February 28, 2007. This did not, however, constitute proper service in the absence of an agreement to that effect. (See § 1013, subd. (e).)
We assume for the sake of argument that the clerks service by mail constituted "service . . . of written notice of entry of the order" within the meaning of section 1008, subdivision (a). In civil proceedings the general rule is that "any . . . duty to . . . act . . . within any [statutory] period . . . after the service of [a] document" is extended by five calendar days when the service is effected by mail. (§ 1013, subd. (a).) That extension applied here in the absence of any express provision to the contrary. (Ibid.) Accordingly, the motions for reconsideration were timely filed.
One Court of Appeal has held that the 10-day period of section 1008, subdivision (a), begins to run, not upon service by the clerk, but upon service given pursuant to section 1019.5, subdivision (a), by the party prevailing on the motion. (Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 202-203.) Here Williby was the prevailing party for purposes of section 1019.5—to the extent the trial court denied the defense requests for security under section 391.1—yet, it does not appear that he ever served written notice of the order on the other parties.
Contrary to the suggestion in Willibys reply brief, nothing in the decision in Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois), precludes an extension of the 10-day period of section 1008, subdivision (a), pursuant to the general provisions of section 1013. (See Le Francois, at pp. 1103-1109.)
B. Reconsideration on the Courts Own Motion
Williby appears to suggest that the trial court erred when it determined that it would, on its own motion, reconsider its previous denial of the defendants requests for security under section 391.1. His reasoning seems to be that the courts decision to reconsider was not truly sua sponte because it became aware of the intervening decision in Moran, supra, 40 Cal.4th 780, only through the defendants untimely motions for reconsideration. He also objects that the decision to reconsider was somehow contrary to the requirements for sua sponte reconsideration set out in Le Francois, supra, 35 Cal.4th 1094.
We have determined above that the motions for reconsideration were, in fact, timely under section 1008. Thus, it was not necessary for the trial court to reconsider the order of February 27, 2007, on its own motion. As we have noted above, the court concluded as much when it ruled, in its order after reconsideration, that the motions were timely and stated an appropriate ground for granting reconsideration.
In any event, the trial court had statutory authority to reconsider the order of February 27, 2007, on its own motion, based on the change in law effected by the decision in Moran, supra, 40 Cal.4th 780. (§ 1008, subd. (c).) Further, the court stated its intent to reconsider the order on its own motion and then proceeded to schedule an hearing on that matter. In doing so, it satisfied the requirements for sua sponte reconsideration set out in Le Francois, supra, 35 Cal.4th 1094—that is, to state intent to reconsider sua sponte and to allow the parties to brief and be heard on the matter. (Id. at pp. 1108-1109.) The fact that the court learned of the change in law only through the defendants motions for reconsideration did not preclude it from deciding to reconsider its order sua sponte because of that change. (See In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1303, 1309, 1314.)
C. The Courts Order After Reconsideration
The main thrust—or at least the main heading—of Willibys final contention, suggests the trial court erred in ruling that, for purposes of section 391.1, there was no "reasonable probability that he [would] prevail" in his litigation against SMC, JFKU, and their individually named employees.
We dismiss Willibys additional suggestion, the trial court erred in declaring him to be a vexatious litigant within the meaning of sections 391 and 391.1, because it is not supported by authority or argument. (See, e.g., Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
Of the several arguments offered in support of this proposition, the first appears to urge that the challenged ruling erroneously contradicts language included in the trial courts initial order of February 27, 2007. The simple answer to this is that the court was not bound to follow the reasoning or ruling of the very order it was reconsidering.
Williby next argues, in effect, that the doctrine of "unclean hands" barred SMC and JFKU from seeking the "remedy" of an order requiring security under section 391.1. There is, however, no indication that Williby raised this question below, and he has accordingly forfeited his right to raise it on appeal. (See, e.g., Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 838, fn. 12.) Because the question whether this equitable doctrine applies in a given proceeding is a factual determination (Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 974), we decline to address the merits of this issue in the first instance.
Williby suggests the trial court violated his constitutional due process right to an impartial judge. He claims that, during the vexatious litigant proceedings resulting in the challenged ruling, as well during other pretrial proceedings, the court demonstrated favoritism towards the defendants and bias against him. In connection with this argument, Williby also intimates that docket information posted on the courts internet site misled him to believe that the evidentiary hearing had been rescheduled from May 16, 2007, to June 20, 2007, and that this was the reason he failed to attend and participate in that hearing.
The record indicates Williby was aware of the purported facts demonstrating the judges impartiality as early as April 25, 2007. At that time, he recited much the same facts in the context of his oral motion for peremptory disqualification. Since the judge had not by then taken action to disqualify himself for bias, Williby was entitled to seek disqualification on that ground, but was required to do so by presenting a written, verified statement "at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification." (§ 170.3, subd. (c)(1).) There is no indication Williby ever submitted such a statement to the trial court. It is, accordingly, " `too late to raise the issue for the first time on appeal. " (See People v. Guerra (2006) 37 Cal.4th 1067, 1111, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151; see also Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 383.) In any event, Willibys due process claim lacks merit. We have reviewed the record and conclude that it does not show he was deprived of his constitutional right to a fair and impartial tribunal. (See People v. Guerra, supra, 37 Cal.4th at p. 1111.) As Judge Flinn told Williby, "[J]udges arent biased just because they dont agree with you."
Williby unsuccessfully sought a prefiling order permitting him to petition for writ of mandate to review the trial courts denial of his oral peremptory challenge. Such action did not, however, excuse his duty to make a separate, written application for disqualification for cause as soon as practicable following his discovery of the relevant facts.
Additionally, we have previously noted that Williby sent an ex parte request for a continuance by facsimile transmission on May 16, 2007, the date set for the evidentiary hearing. This ex parte request stated a need for additional time in order to procure a witness. As such, the ex parte request contradicts Willibys assertion that he did not appear on that date because he had been misled to believe the hearing had been rescheduled. Further, there is nothing to indicate that it was either proper or reasonable for Williby to rely on information posted on the courts internet site when that information was in apparent conflict with the hearing date previously set by the court on the record.
Earlier in the vexatious litigant proceedings, Williby sought judicial notice of certain e-mail documents accessible at SMCs internet site. These documents related to the resignation, in December 2006, of the President of St. Marys University in Minnesota, an institution apparently affiliated with SMC. On January 31, 2007, the trial court denied the request for notice, determining that the e-mail documents were not relevant to any material issue. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.) Williby contends this ruling was error.
The only conceivable basis for taking judicial notice of the e-mail documents was the permissive basis that they concerned an event—the resignation of a college president—capable of easy and accurate verification. (Evid. Code, § 452, subd. (h).) When a court denies a request for permissive judicial notice, we affirm that ruling absent a clear abuse of discretion, that is, unless the requesting party furnished information so persuasive that no reasonable judge would have refused to take judicial notice of the matter. (Willis v. State of California (1994) 22 Cal.App.4th 287, 291.) Here plaintiff argued the documents were relevant to his claim for sexual harassment because the reason for the resignation, involving "inappropriate sexual conduct" by the official in question, demonstrated a "pattern of sexual misconduct . . . ongoing and pervasive on [SMCs] campuses." Plaintiffs contention is based on pure speculation. The e-mail documents only describe the conduct of a single individual from an affiliated but distant university in Minnesota; and the conduct was not condoned by SMC or by anyone else. We cannot say these documents established a pattern of misconduct so persuasively relevant to Willibys claims of sexual harassment that no reasonable judge would have refused his request for judicial notice. The courts refusal to take notice of the documents was well within its proper discretion.
We address finally Willibys suggestion that the challenged ruling ignored his "prima facie showing" of entitlement of recovery, at least as to some of his claims. However, as we have discussed above, the trial court was no longer obligated to accept Willibys allegations as true, but was authorized to weigh these allegations against the evidence presented by SMC and JFKU at the hearing it held on May 16, 2007. (See fn. 2, ante.) Clearly, in reaching the challenged ruling, the court relied on the conflicting evidence presented by the defendants. Our review of that ruling is limited to a determination whether it is supported by substantial evidence.
To the extent the discussion in Willibys opening brief may articulate additional contentions, it is sufficient to say that we have reviewed and found no merit in them.
The Supreme Court in Moran, supra, 40 Cal.4th 780, held that its earlier decision in Beyerbach v. Juno Oil Co. (1954) 42 Cal.2d 11 (Beyerbach), was controlling as to its holding—that weighing of the evidence was permitted in deciding the issue whether a vexatious litigant had a reasonable probability of prevailing in his or her action against defendants seeking an order of security. The court in Beyerbach had reached the same conclusion after construing analogous statutory provisions applicable to shareholder suits. (Moran, at pp. 784-785.) The decision in Beyerbach makes it clear in turn that the substantial evidence standard of review is proper to review a trial courts ruling regarding "reasonable probability," once it has weighed the evidence on that issue. (Beyerbach, at pp. 24-25.)
We have reviewed the evidence presented by defendants and admitted by the trial court at the evidentiary hearing held May 16, 2007, and in our view it provides substantial support for the trial courts ruling. For example, in its initial order of February 27, 2007, the trial court had noted that many of Willibys allegations appeared to be "very questionable." The primary basis for its denial of the requests for security were certain allegations of "misrepresentations . . . made to him as to his admission and the approval of his financial aid," on which Williby had relied "in attending classes, with some economic effects." The court reasoned that if these allegations were taken to be true pursuant to the decision in Devereaux, supra, 32 Cal.App.4th 1571, it appeared defendants had not established there was no reasonable probability that Williby would prevail as to his claim for damages based on these misrepresentations.
With respect to SMC, the purported misrepresentation was, essentially, an e-mail message indicating the financial aid office had approved a student loan to fund Willibys tuition costs, pending certification of his admission to the college. At the evidentiary hearing, however, SMC presented evidence indicating that this was an informal representation on which Williby was not entitled to rely. In particular, Williby was on notice at the time of the representations that he would not be eligible for student loans if he was in default on another student loan, and he later admitted that he had "known . . . for some time" that he was currently in default on an earlier loan he had obtained while attending the University of California Berkeley (UCB).
With respect to JFKU, it appears the misrepresentations on which Williby allegedly relied when enrolling and incurring expenses were communications that misled him into believing he would not be required to provide official transcripts from SMC and UCB in order to be fully admitted and eligible for financial aid, and a communication that the university was seeking accreditation from American Bar Association. JFKUs evidence, however, showed that the university had not permitted Williby to register beyond his initial term because he failed to pay the tuition for that term—it was not because of any failure to provide official transcripts. Moreover, he was not eligible for financial aid, in any event, due to his default on the student loan with UCB. The universitys law school was not seeking accreditation, but the new paralegal program in which Williby had enrolled was seeking accreditation.
Otherwise, both SMC and JFKU presented evidence that flatly and persuasively controverted Willibys other colorable claims relating to sexual and racial harassment.
In sum, we conclude that the defendants evidence provides substantial support for the trial courts conclusion that, at least for purposes of requiring security under section 391.1, there was no reasonable probability Williby would prevail in his litigation against them.
DISPOSITION
The judgment is affirmed.
We concur:
Swager, J.
Jenkins, J.