Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Super. Ct. No. 05C0329. Lynn C. Atkinson, Judge.
Raymond Alford Bradford, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, James M. Schiavenza, Assistant Attorney General, Alberto L. González and Jeffrey R. Vincent, Deputy Attorneys General, for Defendant and Respondent Debra Sheppard-Brooks.
OPINION
Kane, J.
Plaintiff Raymond Alford Bradford, a state prison inmate, filed a civil lawsuit against prison medical staff and other individuals for negligent failure to diagnose a vein disorder in his leg. Defendant Debra Sheppard-Brooks, the only defendant who was served in the action, moved to have plaintiff declared a vexatious litigant and to require the deposit of security. The trial court granted defendant’s motion pursuant to Code of Civil Procedure sections 391 to 391.4, and when plaintiff failed to furnish security as ordered, the lawsuit was dismissed. Plaintiff appeals, contending the trial court abused its discretion. We will affirm.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
FACTS AND PROCEDURAL HISTORY
Plaintiff’s original complaint was filed on June 29, 2005, in the Kings County Superior Court, and alleged neglect and deliberate indifference regarding plaintiff’s medical care at Corcoran State Prison. Specifically, the complaint asserted a failure to adequately diagnose a vein disorder (referred to as DVT) in plaintiff’s leg. The complaint named as defendants the following individuals: “J. Klarich, W. Felix, [and] J. Kim.” It also alleged liability on the part of three “Doe” defendants. Plaintiff subsequently filed an amendment to his complaint in order to name additional defendants. Defendant Debra Sheppard-Brooks (hereafter defendant), who was apparently sued as a “Doe,” filed her answer to the complaint on September 25, 2006.
Defendant’s brief pointed out there were significant gaps in the record on appeal. Plaintiff has since that time successfully petitioned to augment the record in several respects. As augmented, we believe the record is adequate for purposes of our appellate review.
On December 1, 2006, defendant filed a motion to declare plaintiff to be a vexatious litigant and to require deposit of security. The motion was made on the ground that plaintiff was a vexatious litigant as defined by statute because “[d]uring the past seven years, plaintiff has maintained or commenced at least seven (7) different civil lawsuits,” all of which were “dismissed or decided adversely to plaintiff.” The motion also urged that plaintiff “should be required to post a security before continuing this litigation,” because there was no reasonable probability that he would prevail against defendant.
Defendant’s motion included the declaration of Jeff Vincent, attorney for defendant, which set forth extensive court records of cases previously filed by plaintiff that were decided adversely to plaintiff or dismissed. These prior cases were as follows: (1) Bradford v. Grannis, U.S. District Court, Eastern District of California, case No. CIV-S-05-0862; (2) Bradford v. Grannis, U.S. Court of Appeals, Ninth Circuit, case No. 05-16978; (3) Bradford v. McGrath, U.S. District Court, Northern District of California, case No. 02-CV-04180; (4) Bradford v. Schwartz, U.S. District Court, Northern District of California, case No. 02-CV-04181; (5) Bradford v. Terhune, U.S. District Court, Eastern District of California, case No. CV-04-5496; (6) Bradford v. Terhune, U.S. District Court, Eastern District of California, case No. CV-02-1859; (7) Bradford v. Gonsouland, U.S. District Court, Eastern District of California, case No. CV-95-5067; and (8) Bradford v. Gonsouland, U.S. Court of Appeals, Ninth Circuit, case No. 99-17071.
The motion was also supported by the declaration of defendant. Defendant stated therein that at the time of the events alleged in plaintiff’s complaint, she was “acting Chief Deputy Warden, Operations” at the California State Prison in Corcoran. She further states that her duties “did not include supervision or training of medical doctors in areas of medical care or diagnoses of illnesses” and she “was not involved in supervision of medical examinations and did not, in any way, participate in the diagnosis or treatment of plaintiff’s deep vein thrombosis.”
The hearing of the motion was held on December 27, 2006, at which time plaintiff, acting in propria persona, appeared telephonically. Defendant’s attorney, Jeffrey Vincent, personally appeared. Following oral argument, the trial court took the matter under submission. On January 3, 2007, the trial court issued its order granting the motion. On the question of whether plaintiff was a vexatious litigant as defined in section 391, the trial court took judicial notice of the documents supplied by defendant and held that “at least five lawsuits have been resolved adversely to plaintiff in civil cases within the seven year period and hence, the requirements of the vexatious statutes have been met.”
An amended order was filed on January 18, 2007.
On the question of whether to require plaintiff to post security, the trial court concluded there was no reasonable probability of plaintiff’s success in the lawsuit against defendant because defendant had shown that she had no responsibility or involvement with respect to plaintiff’s medical care, and no basis existed under the allegations for respondeat superior liability. Additionally, the trial court noted plaintiff had failed to file a tort claim. For all of these reasons, the trial court concluded that plaintiff was not likely to prevail in his litigation against defendant. Based on this finding, the court ordered that security in the amount of $9,000 be posted by plaintiff as a condition of proceeding with prosecution of the lawsuit. The order expressly warned plaintiff that if he did not post security within 45 days after receiving notice of the order, the court would “order this case dismissed pursuant to … §391.4.” Plaintiff failed to comply, and the action was dismissed by the trial court on March 29, 2007.
In his appeal from the judgment of dismissal, plaintiff contends that the trial court abused its discretion when it decided the current lawsuit had no reasonable probability of success. Additionally, plaintiff claims the trial court’s determination that he must furnish security violated his due process right of access to the courts. As explained below, we reject plaintiff’s arguments and affirm the judgment.
DISCUSSION
I. 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. [Citation.]” (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219 (Bravo).) Similarly, a court’s decision that a vexatious litigant does not have a reasonable probability of success is based on an evaluative judgment in which the court is permitted to weigh evidence. (Moran v. Murtaugh, Miller, Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 785-786 (Moran).) A trial court’s conclusion that a vexatious litigant must post security does not, as with a demurrer, terminate the action or preclude a trial on the merits. Rather, it merely requires the party to post security. Accordingly, if there is any substantial evidence to support a trial court’s conclusion that a vexatious litigant has no reasonable probability of prevailing in the action, it will be upheld. (See Moran, supra, at pp. 784-786, following analogous case of Beyerbach v. Juno Oil Co. (1954) 42 Cal.2d 11, 24-25.)
In Moran, the Supreme Court held that “[i]n assessing whether a vexatious litigant has a reasonable probability of success on his claim…, the trial court [may] weigh the evidence presented on the motion,” and is not required to “assume the truth of [the] plaintiff’s alleged facts and determine only whether the claim is foreclosed as a matter of law.” (Moran, supra, 40 Cal.4th at p. 782.) On this issue, Moran overruled Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571. (Moran, supra, at p. 785, fn. 7.)
II. Vexatious Litigant Statute
“The vexatious litigant statute (§§ 391-391.7) was enacted in 1963 to curb misuse of the court system by those acting in propria persona who repeatedly relitigate the same issues. Their abuse of the system not only wastes court time and resources but also prejudices other parties waiting their turn before the courts. [Citations.]” (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008.) The statute provides a “means of moderating a vexatious litigant’s tendency to engage in meritless litigation.” (Bravo, supra, 99 Cal.App.4th at p. 221.) “‘The statute defines a “vexatious litigant,” provides a procedure in pending litigation for declaring a person a vexatious litigant, and establishes procedural strictures that can be imposed on vexatious litigants. A vexatious litigant may be required to furnish security before proceeding with the pending litigation; if that security is not furnished, the litigation must be dismissed. (§§ 391.3, 391.4.)’” (Singh v. Lipworth (2005) 132 Cal.App.4th 40, 44, quoting In re Bittaker, supra, at p. 1008.)
A court may declare a person to be a vexatious litigant who, in “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 … finally determined adversely to the person.…” (§ 391, subd. (b)(1).) The term “litigation” means “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” (§ 391, subd. (a).) Litigation includes an appeal or civil writ. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216.) A case is finally determined adversely to a plaintiff if he does not win the action he began, including cases which are voluntarily dismissed by a plaintiff. (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779; In re Whitaker (1992) 6 Cal.App.4th 54, 56.)
Section 391.1 provides as follows regarding a motion to furnish security: “In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security. The motion must be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the moving defendant.” Section 391.3 sets forth the basis for granting the motion: “If, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix.” If security is ordered by the court and is not furnished by the plaintiff, “the litigation shall be dismissed as to the defendant for whose benefit [the security] was ordered furnished.” (§ 391.4.)
III. Trial Court Correctly Determined Plaintiff to be a Vexatious Litigant
The trial court took judicial notice of the court records that were submitted by defendant in connection with the motion and declared plaintiff to be a vexatious litigant as defined in section 391, subdivision (b)(1). These court records, as summarized herein above, clearly establish that plaintiff commenced more than five litigations that were resolved against him during the relevant seven-year period. Accordingly, substantial evidence supported the trial court’s determination of plaintiff’s vexatious litigant status pursuant to section 391. We hold the trial court correctly found plaintiff to be a vexatious litigant.
Plaintiff does not make any intelligible challenge to the trial court’s finding that he qualifies as a “vexatious litigant” within the meaning of section 391.
IV. Order Requiring Security Was Not an Abuse of Discretion
As noted, a court may require a vexatious litigant to furnish security as a condition of prosecuting a pending lawsuit if it determines, after hearing the evidence upon the motion, that “there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant.” (§ 391.3.)
Here, in evaluating plaintiff’s likelihood of success in his lawsuit against defendant, the trial court considered, among other things, the declaration of defendant, who was sued individually. According to defendant’s declaration, her responsibilities as associate warden at Corcoran State Prison did not include supervision of medical doctors or medical evaluations. Defendant also stated that her job duties did not include any participation in the diagnosis or treatment of plaintiff’s deep vein thrombosis. Based on this showing, and the nature of the allegations, it did not appear that any basis existed for individual liability against defendant. Further, as the trial court’s order correctly explained, no basis for respondeat superior liability existed either:
The trial court noted the complaint essentially alleged only “that Drs. Klarich and Kim failed to diagnose his deep leg thrombosis.” We add that the complaint failed to allege any personal involvement or negligent act or omission on the part of defendant.
“The complaint is unclear whether defendant Sheppard[-]Brooks is being sued under federal or state law, but under either law, there is no respondeat superior liability. (Gov. Code § 820.8 [only liability is for injury proximately caused by employee’s own negligent or wrongful act or omission]; Weaver v. State of California (1998) 63 Cal.App.4th 188, 202.) A plaintiff may not sue under 42 USC [section] 1983 on a theory of respondeat superior, even if such action would be proper under state law. (Palmer v. Sanderson (9th Cir. 1993) 9 [F.3d] 1433, 1437-1438.) In addition, plaintiff admits he did not file a governmental tort claim in this action. The defendant therefore concludes, and the court agrees, that there is no probability of success against the associate warden.”
Plaintiff’s appeal does not challenge the trial court’s determination that there was no basis for respondeat superior liability.
Based on the above synopsis of the motion and the matters that were before the trial court, it is clear that the trial court’s assessment that there was no reasonable probability plaintiff would prevail in his litigation against defendant was amply supported by substantial evidence.
Plaintiff nevertheless contends the trial court abused its discretion because it allegedly failed to consider certain exhibits which, according to plaintiff, showed that defendant may have been negligent in processing an emergency medical appeal regarding plaintiff’s leg disorder. Plaintiff’s contention is without merit. First, plaintiff has not affirmatively demonstrated that the trial court failed to consider any relevant evidence before it. All intendments are presumed in favor of the judgment below. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Second, the documents alluded to by plaintiff, apparently consisting of exhibits attached to plaintiff’s claim and/or complaint, are insufficient to show that defendant was personally negligent. Third, even assuming for the sake of argument that the referenced documents are circumstantial evidence that defendant was potentially negligent, the trial court’s conclusion that plaintiff’s lawsuit was unlikely to prevail was still convincingly supported by substantial evidence.
At most, the documents reflect plaintiff’s claim that certain medical appeals were not timely processed, but nothing therein establishes that defendant’s own act or omission was the negligent cause thereof. On this sketchy record, to conclude that defendant was a negligent cause of the alleged injury to plaintiff would be mere conjecture. We note the referenced documents also included the attorney general’s response to a writ of habeas corpus explaining that plaintiff’s medical and administrative claims were processed and determined.
Plaintiff also takes issue with the trial court’s statement in its order that “plaintiff admits he did not file a governmental tort claim.” Plaintiff does not deny his failure to timely file a tort claim, but believes that grounds existed for granting him permission to file a late claim. As a preliminary matter, we note plaintiff failed to preserve such issue on appeal, since nothing in the record shows he timely served a properly noticed motion under Government Code section 946.6 as a means of obtaining relief from the tort claim time limits. The failure to comply with tort claim requirements could not be overcome apart from obtaining judicial relief by the authorized process, which plaintiff never did. The trial court properly considered these facts in connection with its determination of the motion. In any event, plaintiff’s failure to file a tort claim was mentioned by the trial court only as an additional reason for concluding that plaintiff’s litigation was not likely to succeed against defendant. Other evidence considered by the trial court was clearly sufficient, by itself, to justify the trial court’s order.
Plaintiff attempted to obtain such relief at an ex parte hearing. The trial court docket reflects the ex parte request was denied. Government Code section 946.6, subdivision (d) requires that a properly noticed motion must be served. Moreover, such relief must be sought by noticed motion within six months after the denial of the application to the public entity. (Gov. Code, § 946.6, subd. (b).)
It bears repeating that we uphold a trial court’s determination that a vexatious litigant does not have a reasonable probability of prevailing in litigation against a moving defendant as long as that determination is supported by substantial evidence. (Bravo, supra, 99 Cal.App.4th at p. 219; Moran, supra, 40 Cal.4th at pp. 785-786.) As discussed above, the trial court’s order was clearly supported by substantial evidence, and nothing asserted in plaintiff’s appeal changes that fact. Hence, no abuse of discretion has been shown.
V. Vexatious Litigant Statute Does Not Deny Plaintiff Due Process
Plaintiff appears to argue that the trial court’s order declaring him to be a vexatious litigant somehow violates his due process right of access to the courts. Plaintiff’s argument is without merit. Our courts have repeatedly upheld the vexatious litigant statute, including the provision to furnish security, against such “due process” challenges. (See, e.g., Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 59-61; Taliaferro v. Hoogs (1965) 236 Cal.App.2d 521, 525-529.) As explained in Bravo, supra, 99 Cal.App.4th 211, even the issuance of a prefiling order “does not deny the vexatious litigant access to the courts, but operates solely to preclude the initiation of meritless lawsuits and their attendant expenditures of time and costs. [Citation.] Vexatious litigant statutes are constitutional and do not deprive a litigant of due process of law. [Citations.]” (Bravo, supra, at pp. 221-222.) Or, as the Supreme Court succinctly put it, “a section 391.1 motion does not preclude a trial; it merely requires a plaintiff to post security.” (Moran, supra, 40 Cal.4th at p. 786.) Here, plaintiff’s access to the courts was not denied; he was simply required to furnish security.
DISPOSITION
The judgment is affirmed. Defendant is entitled to costs on appeal.
WE CONCUR: Harris, Acting P.J., Wiseman, J.