Opinion
D058203
12-05-2011
CHERIE ALEXANDER, Plaintiff and Appellant, v. SAN DIEGO UNIFIED SCHOOL DISTRICT, et al., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2007-00083542-CU-WM-CTL)
APPEAL from an order of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed.
A judge declared Cherie Alexander a vexatious litigant in 2006. This required Alexander to furnish security in the form of a $25,000 bond upon a finding that she had no reasonable probability of succeeding at trial. Alexander failed to provide this security, and the court dismissed the action. Alexander appeals, contending that the trial court abused its discretion in ordering her to post the bond. We affirm the dismissal.
FACTS AND PROCEDURE
The San Diego Unified School District (District) employed Alexander as a kindergarten teacher. During her tenure, she filed 10 lawsuits against the District, two principals, and parents of students. Alexander received numerous warnings to keep her classroom clean after a principal and custodian found it full of old papers, dead rats, and rat feces. Alexander also initiated inappropriate contact with parents and fellow teachers. The District eventually determined that Alexander was not fit to perform her duties as a teacher and dismissed her in 2004.
HEARING BEFORE ADMINISTRATIVE LAW JUDGE
Alexander challenged the dismissal and requested a hearing before the District's dismissal commission (Commission), initially scheduled for early 2005. The hearing was delayed for several years while Alexander filed motions for multiple continuances, substituted counsel, and designated various panel members who were "obviously biased" and therefore inappropriate for the Commission. In 2006, the court declared Alexander a vexatious litigant, finding that she had no reasonable probability of prevailing at the hearing and requiring her to post a bond in order to file any future actions. Alexander was prohibited from filing any civil action without both posting a bond and obtaining permission from the court.
The court initially set Alexander's bond at $55,000 but later reduced it to $25,000.
The hearing was eventually scheduled for 2007 after multiple continuances. Alexander's counsel withdrew three days prior to the scheduled hearing, phone calls to Alexander went unreturned, and the court denied Alexander's motion for a continuance to find new counsel because it considered Alexander to have waived counsel for that hearing. At this point, the case had already been continued for three years. Neither Alexander nor any counsel on her behalf appeared at the hearing. The administrative law judge found Alexander unfit for service and affirmed her dismissal.
WRIT OF ADMINISTRATIVE MANDAMUS
Alexander challenged the administrative law judge's finding by filing a writ of administrative mandamus in December 2007. In October 2008, she filed a first amended petition. In response, the District filed a motion that, because Alexander had been declared a vexatious litigant in 2006, she be required to furnish a bond and obtain leave from the court in order to file the petition. The superior court granted the motion, requiring Alexander to obtain leave from the court and, if required, post a bond in order to file any further civil actions, including mandamus actions.
Alexander was allowed to file a second amended petition in 2009 upon a finding that the amendments to the petition potentially had merit. Given her status as a vexatious litigant, the District requested that Alexander be required to furnish security. The court required her to furnish security of $55,000 in order to file it. In 2010, Alexander failed to post the required bond and moved for reconsideration, alleging that she had improperly been denied counsel for the hearing in 2007 and that this negated the finding that she had no reasonable probability of prevailing. The court denied her motion but reduced the bond to $25,000.
The court found that Alexander was not and never had been denied her right to counsel, since she was represented throughout the proceedings. It also held in light of three years of delays, the motion for a continuance to obtain new counsel was properly denied, her case as stated in her second amended petition was unlikely to prevail, and she was still required to furnish the security. When Alexander failed to do so, the court dismissed the action in its entirety.
Throughout the entire process, Alexander remained on paid administrative leave from the District and drew her full teacher's salary.
Alexander now appeals, challenging that she did have a reasonable probability of success because she was denied her right to counsel in 2007.
DISCUSSION
A trial court's determination as to a vexatious litigant will be upheld if there is any substantial evidence to support it. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 636.)
A vexatious litigant may be required to furnish security if the trial court determines there is no reasonable probability that the litigant will prevail. (Code Civ. Proc., § 391.3.) Failure to do so results in a dismissal of the case. (§ 391.4.)
All further statutory references are to the California Code of Civil Procedure.
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A party's right to counsel in an administrative hearing does not require that the party have counsel present at all times, and due process is satisfied if the party has been advised of the right to counsel. (Borror v. Department of Investment (1971) 15 Cal.App.3d 531, 543; Ahmed v. Department of Alcoholic Beverage Control (Cal. Alcoholic Beverage Control Appeals Bd., Sept. 17, 2004) AB-8201, p. 6.)
Substantial evidence supported the finding that Alexander had no reasonable probability of prevailing on the merits, and the order to furnish security was appropriate. Alexander was declared a vexatious litigant in 2006, and her amended petition was found to lack a reasonable probability of prevailing in 2010. The matter had already been continued for over three years at the time of the 2007 hearing due to Alexander's multiple motions, with Alexander drawing her full salary and providing no services to the District. Alexander was fully advised of her right to counsel and had counsel present for most of the proceeding. Absence of counsel for one hearing did not deprive her of any due process rights.
The court reconsidered its decision to require the bond, and determined that Alexander's case was likely to fail. As a vexatious litigant, this required Alexander to post a bond. Alexander was warned that her failure to post a bond within 30 days would result in dismissal of the case. When Alexander failed to do so, the court properly dismissed the case.
DISPOSITION
The order dismissing the case in its entirety is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.