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DeNeal v. Shaver

California Court of Appeals, Fourth District, Third Division
Apr 30, 2009
No. G040688 (Cal. Ct. App. Apr. 30, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Orange County No. 07CC05611, Peter J. Polos, Judge. Numerous motions.

James Henry DeNeal, in pro. per., for Plaintiff and Appellant.

Law Offices of Thomas R. Nigro and Thomas R. Nigro for Defendant and Respondent.


OPINION

RYLAARSDAM, ACTING P. J.

Plaintiff James Henry DeNeal filed suit against defendant Ronny Shaver arising from defendant’s repair of plaintiff’s car after defendant would not return the car to him without plaintiff’s payment for services. In the complaint plaintiff alleged that defendant used prescription and illegal drugs. In addition to damages, he prayed for defendant to be placed in drug treatment and jail.

After a demurrer was sustained, plaintiff filed a first amended complaint containing the same allegations. In the ruling granting defendant’s motion to strike, the court ordered that when plaintiff filed a second amended complaint he had to follow certain specified guidelines, including deleting any reference to the mental condition of or drug use by defendant or his lawyer. In the second amended complaint plaintiff set out the order, including the portion that prohibited him from alleging the drug use and mental condition of defendant and his lawyer.

He also filed a motion objecting to the court’s order that he delete the specified provisions from the amended complaint and setting out the statements that defendant and his counsel were drug addicts and had mental disorders. The court denied the motion and ordered the provisions of the prior order stricken from the second amended complaint.

When he filed the original complaint plaintiff also filed 20 motions, most of which sought to have defendant and his lawyer take drug tests, undergo mental health or substance abuse treatment, and have medical and mental health professionals reveal diagnoses of defendant. Plaintiff did not respond to defendant’s letter asking that he take them off calendar because they had no merit. All of the motions were denied.

When plaintiff filed his first amended complaint he also filed 14 motions similar to those in the first batch. They also included a motion to exclude evidence and compelling undesignated experts to testify. After plaintiff refused to take them off calendar as unmeritorious, the court denied them and awarded $1,000 in sanctions against plaintiff. Plaintiff advised defendant’ lawyer he would refile the motions.

Plaintiff filed another motion to compel defendant’s handwriting expert to be drug tested, which the court denied; it also awarded $500 in sanctions. He also filed a demurrer to both defendant’s answer and his cross-complaint, and a motion to strike parts of his answer. All were denied. Although defendant filed a motion for summary judgment, the record does not reveal there was ever a ruling on it.

Based on the approximately 35 motions, the court issued an order to show cause as to why plaintiff should not be deemed to be a vexatious litigant. After hearing it made such a finding and ordered plaintiff post a $25,000 bond pursuant to defendant’s request. When plaintiff failed to post the bond on time, the court dismissed the complaint in response to defendant’s motion.

A vexatious litigant is a person who, “[i]n any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc., § 391, subd. (b)(3).) When the court determines, on motion and hearing, that a party is a vexatious litigant and “there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order” that plaintiff furnish a bond. (Code Civ. Proc., § 391.3.) When a plaintiff fails to post such a bond, the case must be dismissed. (Code Civ. Proc., § 391.4.) An order dismissing an action for failing to post a bond is appealable. (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 985, fn. 1.)

Plaintiff’s brief is unclear and difficult to understand. The vague headings in the statement of the case part of the brief and two headings in the argument portion seem to suggest he is appealing from the judgment based on the vexatious litigant finding. This is bolstered by a sentence or two included in argument that otherwise has nothing to do with that issue. On that basis and giving plaintiff the benefit of the doubt we will treat this as an appeal on that ground.

However, plaintiff has failed to meet the requirement that he support his claims with reasoned legal argument and citations to authority. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; see also Cal. Rules of Court, rule 8.204(a)(1)(B).) The bulk of his argument centers around the substantive merits of the case, i.e., the dispute over the car repairs. This was never litigated in the trial court and is not properly before us. (In re B.D. (2008) 159 Cal.App.4th 1218, 1239.) Even in the couple of sections with headings referring to a vexatious litigant, he does not argue that point. Thus, we may treat the argument as waived.

Were we to consider the appeal on the merits, the record reveals substantial evidence that the trial court’s ruling is correct. (Morton v. Wagner (2007) 156 Cal.App.4th 963, 969.) Plaintiff filed approximately 35 motions many of which were refiled even after the court had denied them. Neither drug testing of nor alleged drug use by defendant or his counsel bear on whether defendant performed the proper car repairs or whether plaintiff owes him money. The same is true for the other motions plaintiff filed. We are not persuaded by plaintiff’s claim that he believed he could refile the motions because he was given leave to file a first amended complaint.

Nor has plaintiff pointed to any evidence in the record showing the likelihood he will prevail in the litigation. In ordering the bond the court found there was no such reasonable probability. Plaintiff alleges defendant rebuilt his engine without his permission. However a declaration of a handwriting expert filed in support of defendant’s motion for summary judgment, that has a document authorizing the work attached, states it contains plaintiff’s signature. Plaintiff did not designate an expert to counter this opinion.

The finding that plaintiff was a vexatious litigant was in compliance with the statute and the order did not violate due process or equal protection.

Plaintiff filed 12 motions in this court. They are, in somewhat paraphrased language: (1) Motion for Mandatory Judicial Notice on Defendant for Illegal Drug Addiction; (2) Motion for Mandatory Judicial Notice on Defendant for Illegal and Prescription Narcotic Drug Addiction; (3) Motion for Factual Determination of Mechanical Work Performed; (4) Motion for Factual Determination Compelling Defendant’s Attorney’s Physician to Communicate a Diagnosis of Treatment of Counsel’s Physical or Mental Condition; (5) Motion for Factual Determination of Drug Addiction by Expert Witness to Conduct a Medical Examination of Defendant’s Counsel to Verify His Addiction to Illegal Narcotics; (6) Motion to Compel Defendant’s Physician to Communicate a Diagnosis of Treatment of Defendant’s Mental, Physical or Emotional Condition; (7) Motion to Compel Defendant’s Expert to take a Drug Test; (8) Motion to Compel an Expert Witness to Conduct a Psychiatric Examination of Defendant’s Counsel to Verify His Addiction to Illegal Narcotics; (9) Motion to Compel Defendant to Participate in a Substance Abuse Program; (10) Motion to Defendant’s Psychiatrist to Communicate the Diagnosis of Treatment of His Physical, Mental or Emotional Condition; (11) Motion for Factual Determination of Defendant’s Drug Addiction to Participate in the Asylum’s Saint Elizabeth Hospital’s Mental Health Services; and (12) Motion for Factual Determination of Defendant’s Drug Addiction by an Expert Witness to Conduct a Medical Examination.

None of the motions are well-taken. The first 11 are completely irrelevant to the action and not allowed. All are summarily denied. These are substantially the same, if not identical to, the motions plaintiff filed in the trial court that have been denied more than once and thus are more evidence that plaintiff is vexatious. Number 12, a request we make factual findings under California Rules of Court, rule 8.252(b), is also denied. We take evidence only in the rarest of cases (Tyrone v. Kelley (1973) 9 Cal.3d 1, 13) and certainly not as a substitute for factual findings that were not made in the trial court because the case was never tried.

Defendant filed a motion to dismiss the appeal, primarily on the ground plaintiff did not obtain permission from the presiding justice before filing it. After the appeal was filed we sent out an order stating we were considering dismissing the appeal based on plaintiff’s failure to obtain such permission. Plaintiff subsequently filed such a request.

Code of Civil Procedure section 391.7, subdivision (a) provides that, in addition to other remedies, a court may “enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.” Here no such order was issued by the trial court. Thus, such a request was not necessary to file the appeal. (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1500 [where court ordered only posting of bond, appellant not required to obtain permission to file appeal].) The motion to dismiss is denied.

The order is affirmed. All motions are denied. Respondent is entitled to costs on appeal.

WE CONCUR: MOORE, J., IKOLA, J.


Summaries of

DeNeal v. Shaver

California Court of Appeals, Fourth District, Third Division
Apr 30, 2009
No. G040688 (Cal. Ct. App. Apr. 30, 2009)
Case details for

DeNeal v. Shaver

Case Details

Full title:JAMES HENRY DENEAL, Plaintiff and Appellant, v. RONNY SHAVER, Defendant…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Apr 30, 2009

Citations

No. G040688 (Cal. Ct. App. Apr. 30, 2009)