Opinion
B289707
06-12-2020
HELEN FUNG, Plaintiff and Appellant, v. AIM UNITED, LLC, et al., Defendants and Respondents.
Helen Fung, in pro. per., for Plaintiff and Appellant. Homan & Stone and Gene S. Stone for Defendants and Respondents AIM United, LLC and Brian Angel. Law Office of Lawrence G. Lewis and Lawrence G. Lewis for Defendant and Respondent Oregon Trail Corporation. Harris L. Cohen and Harris L. Cohen; Law Offices of Elkanah J. Burns and Elkanah J. Burns for Defendant and Respondent BDR Inc.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YC071585) APPEAL from judgments of the Superior Court of Los Angeles County, Patrick T. Madden, Judge. Affirmed. Helen Fung, in pro. per., for Plaintiff and Appellant. Homan & Stone and Gene S. Stone for Defendants and Respondents AIM United, LLC and Brian Angel. Law Office of Lawrence G. Lewis and Lawrence G. Lewis for Defendant and Respondent Oregon Trail Corporation. Harris L. Cohen and Harris L. Cohen; Law Offices of Elkanah J. Burns and Elkanah J. Burns for Defendant and Respondent BDR Inc.
INTRODUCTION
Helen Fung, representing herself, filed this action arising from the sale of her house at a foreclosure sale. In addition to asserting causes of action against her lender, Oregon Trail Corporation, Fung asserted causes of action against AIM United, LLC, the entity that acquired title to the house, AIM United's principal, Brian Angel (collectively, AIM), and BDR Inc., alleging AIM and BDR stole cash and valuable artwork she left at the house.
The trial court sustained Oregon Trail's demurrer to Fung's complaint without leave to amend. The trial court subsequently declared Fung a vexatious litigant and ordered her to post security. When she failed to do so, the trial court dismissed the action with prejudice and entered judgments in favor of Oregon Trail, AIM, and BDR. Fung appeals, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Fung Files a Series of Actions Arising from the Foreclosure Sale of Her House
Fung has filed several actions against Oregon Trail and AIM arising from the foreclosure sale of her house—first to prevent the foreclosure and later to recover damages from what she alleges was a wrongful foreclosure. In August 2014, while she still owned the house, Fung, representing herself, filed an action against Oregon Trail in Los Angeles County Superior Court. (Fung v. Oregon Trail Corporation (2015, No. YC070058) (the first Oregon Trail action).) Fung alleged that Oregon Trail wrongfully refused to accept her loan payments and that she was entitled to an injunction to prevent the pending foreclosure and to millions of dollars in damages. Fung subsequently filed a petition for bankruptcy under Chapter 13 seeking a reorganization plan that included monthly payments to Oregon Trail. Oregon Trail objected to the proposed Chapter 13 plan. (In re Fung (Bankr. C.D. Cal. 2015) No. 2:14-bk-31629.) Fung voluntarily dismissed her petition in March 2015.
Fung filed another Chapter 13 bankruptcy petition in July 2015 and sought a stay of the foreclosure proceedings. (In re Fung (Bankr. C.D. Cal. 2017) No. 2:15-bk-21213.) Oregon Trail filed a motion for relief from the automatic stay, which the bankruptcy court granted. On September 30, 2015 Fung voluntary dismissed both the second bankruptcy petition and the first Oregon Trail action.
In October 2015 AIM purchased the house in a trustee's sale. After AIM prevailed in an unlawful detainer action against Fung, Fung filed another action, again representing herself, this time against Oregon Trail and AIM. (Fung v. Oregon Trail Corporation (Super. Ct. L.A. County, 2016, No. YC070991) (the second Oregon Trail action).) Fung's allegations in the second Oregon Trail action were similar to those in the first Oregon Trail action, except this time she sought rescission of the trustee's sale and $3.5 million in damages. After the trial court sustained Oregon Trail's demurrer with leave to amend and Fung failed to timely amend her complaint, Fung attempted to voluntarily dismiss the action, as she had done in the first Oregon Trail action. Oregon Trail, however, filed a motion to dismiss the action with prejudice. The trial court granted the motion and entered judgment in favor of Oregon Trail.
Fung voluntarily dismissed the action against AIM and other defendants.
B. Fung Files This Action, and the Trial Court Enters Judgment in Favor of Oregon Trail, AIM, and BDR
After the trial court sustained Oregon Trail's demurrer in the second Oregon Trail action, but before the court dismissed the action, Fung filed this action, again representing herself. Fung asserted causes of action against Oregon Trail for breach of contract, common counts, and fraud, again alleging Oregon Trail wrongfully refused to accept her loan payments and wrongfully initiated foreclosure proceedings. Fung also asserted causes of action against AIM United for breach of a bailment contract and negligence and a cause of action against AIM and BDR for conversion. Fung alleged employees of AIM and BDR stole $198,500 in cash and $500 million in ceramic art, "including ancient Chinese pricless [sic] heirlooms," that Fung left at the house.
Oregon Trail demurred, arguing Fung's causes of action against Oregon Trail were barred by claim preclusion as a result of the judgment in the second Oregon Trail action. The trial court sustained the demurrer without leave to amend. Before the court entered judgment, Oregon Trail, AIM, and BDR each filed a motion to declare Fung a vexatious litigant and to require her to post security. The court granted the motion, finding Fung was a vexatious litigant because she had filed five actions as a self- represented litigant in the past seven years that were determined adversely to her. The court found Fung had no reasonable probability of prevailing in this action and ordered Fung to post $100,000 as security for her causes of action against Oregon Trail, $60,000 for her causes of action against BDR, and $25,000 for her causes of action against AIM.
On April 9, 2018, after Fung failed to post the requisite security, the court issued an unsigned minute order dismissing the action against all defendants with prejudice. The court also separately entered a judgment in favor of Oregon Trail on the ground the court had previously sustained Oregon Trail's demurrer without leave to amend. On April 13 the trial court entered judgment in favor of AIM and BDR based on Fung's failure to post security.
The court also entered a second judgment in favor of Oregon Trail.
DISCUSSION
A. We Have Jurisdiction To Hear Fung's Appeal
Fung filed her notice of appeal on April 9, 2018, purporting to appeal the judgment of dismissal entered on that date. The only judgment entered on April 9, 2018 was the judgment entered in favor of Oregon Trail after the order sustaining Oregon Trail's demurrer without leave to amend. The court's unsigned minute order on that date dismissing the action against all defendants after Fung failed to post security is not an appealable order. (See Code Civ. Proc., § 581d ["[a]ll dismissals ordered by the court shall be in the form of a written order signed by the court"]; Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 768 ["'[a]n order that is not signed by the trial court does not qualify as a judgment of dismissal under section 581d'"]; Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578 [same].)
Statutory references are to the Code of Civil Procedure.
Nevertheless, we have discretion to treat a premature "notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment." (Cal. Rules of Court, rule 8.104(d)(2); see Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600, 607 [considering a "premature notice of appeal as a valid 'notice of appeal filed after judgment is rendered but before it is entered'" and treating "the notice as filed immediately after entry of judgment"]; In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1262, fn. 4 ["[a]lthough the appeal was taken from the nonappealable order sustaining the demurrer, we treat the notice of appeal as a premature but valid notice of appeal from the subsequently entered judgment"]; Los Altos Golf & Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 202 ["[b]ecause a judgment of dismissal has actually been entered, we will liberally construe the appeal to have been taken from the judgment of dismissal"].) Therefore, we treat Fung's notice of appeal as encompassing both the judgment entered after the court sustained Oregon Trail's demurrer and the judgment entered after the court declared Fung a vexatious litigant and dismissed the action for her failure to post security.
B. Claim Preclusion Bars This Action, and Any Error in Sustaining Oregon Trail's Demurrer Without Leave To Amend on That Ground Was Harmless
1. Applicable Law and Standard of Review
"In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory." (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) "[W]e ask only whether the plaintiff has alleged—or could allege—sufficient facts to state a cause of action against the defendant." (Id. at pp. 155-156.)
In appropriate cases the trial court may decide on the pleadings that claim preclusion bars a complaint. "[I]f all of the facts necessary to establish that an action is barred on [claim preclusion] grounds appear on the face of the complaint" or are subject to judicial notice, "the complaint is subject to demurrer." (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 324; see Key v. Tyler (2019) 34 Cal.App.5th 505, 532 ["court may take judicial notice of court records in ruling on an issue of res judicata"]; Boyd v. Freeman (2017) 18 Cal.App.5th 847, 855 [claim preclusion "is properly raised as a defense on demurrer when all relevant facts 'are within the complaint or subject to judicial notice'"].)
"[California courts] now refer to 'claim preclusion' rather than 'res judicata'" and "'issue preclusion' in place of 'direct or collateral estoppel.'" (Samara v. Matar (2018) 5 Cal.5th 322, 326.)
2. Claim Preclusion Bars Fung's Causes of Action Against Oregon Trail
While Fung discusses her causes of action against Oregon Trail, Fung does not argue claim preclusion does not apply, nor is there any indication in the record she addressed the claim preclusion issue in the trial court. Therefore, she has forfeited any argument the trial court erred in sustaining Oregon Trail's demurrer on the basis of claim preclusion. (See Johnson v. Greenelsh (2009) 47 Cal.4th 598, 627 ["issues not raised in the trial court cannot be raised for the first time on appeal"]; Doe v. University of Southern California (2018) 29 Cal.App.5th 1212, 1230 ["Generally, a party cannot raise new issues . . . for the first time on appeal."]; Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 729, fn. 1 ["Ordinarily, courts treat an appellant's failure to raise an issue in her briefs as forfeiting that challenge."].)
Fung did not file a formal opposition to Oregon Trail's demurrer. Fung filed an ex parte application to set aside the trial court's order sustaining Oregon Trail's demurrer without leave to amend, but she did not argue the merits of Oregon Trail's claim preclusion argument.
In any event, even if Fung had not forfeited the argument, her action is barred by claim preclusion. Claim preclusion bars a subsequent action involving "(1) the same cause of action (2) between the same parties [or their privies] (3) after a final judgment on the merits in the first suit." (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) Here, both Fung and Oregon Trail were parties to the second Oregon Trail action, and Fung asserted the same causes of action in this action that she asserted against Oregon Trail in the second Oregon Trail action. "Although 'the phrase "causes of action" is often used indiscriminately . . . to mean counts'" that state different legal theories (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 631), "[t]o determine whether two proceedings involve identical causes of action for purposes of claim preclusion, California courts have 'consistently applied the "primary rights" theory'" (Boeken v. Philip Morris, USA, Inc. (2010) 48 Cal.4th 788, 797). The "more precise meaning" of a cause of action under the primary rights theory "'is the right to obtain redress for a harm suffered.'" (Hayes, at p. 631; see Boeken, at p. 798.) "'[A] "cause of action" is comprised of a "primary right" of the plaintiff, a corresponding "primary duty" of the defendant, and a wrongful act by the defendant constituting a breach of that duty.'" (Hayes, at p. 630.) ""'Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief."'" (Id. at p. 631; see Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904.)
In the second Oregon Trail action Fung sought to recover from Oregon Trail for the same injury for which she seeks to recover from Oregon Trail in this action—the loss of her ownership interest and equity in her house. Fung also alleged that the same wrongful conduct by Oregon Trail caused her injuries. (See Boeken v. Philip Morris, USA, Inc., supra, 48 Cal.4th at pp. 798-799 ["the relevant point for our purposes is what plaintiff [in the prior action] alleged, because that allegation indicates what primary right was adjudicated as a consequence of the dismissal with prejudice"].) In the prior action, Fung alleged Oregon Trail "tricked" her into signing the relevant loan agreements, did not inform her that her house would be security for the loans, wrongfully refused to accept her loan payments, required her to pay more than she owed to cure her default, and wrongfully foreclosed on the house. The same allegations are the bases for each of Fung's causes of action against Oregon Trail in this action.
That Fung in the second Oregon Trail action sought to rescind the foreclosure, but in this action seeks damages, does not affect the analysis. "'[I]f two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff . . . seeks different forms of relief . . . .'" (Cal Sierra Development, Inc. v. George Reed, Inc. (2017) 14 Cal.App.5th 663, 675.)
Finally, the second Oregon Trail action ultimately resulted in a final judgment on the merits. As stated, the court in that action sustained Oregon Trail's demurrer to Fung's complaint for failure to state a cause of action, and it subsequently dismissed the action after Fung failed to timely amend her complaint. For purposes of claim preclusion, a judgment "entered after a general demurrer ha[s] been sustained with leave to amend . . . is a judgment on the merits to the extent that it adjudicates that the facts alleged do not constitute a cause of action, and will, accordingly, be a bar to a subsequent action alleging the same facts." (Keidatz v. Albany (1952) 39 Cal.2d 826, 828; accord, Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1165; see Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1428 ["'a judgment on a general demurrer will have the effect of a bar in a new action in which the complaint states the same facts which were held not to constitute a cause of action'"].)
The court also sustained the demurrer without leave to amend as to certain causes of action asserted by Fung on the ground those causes of action did not exist.
Although Fung does not make the argument, it is true that she appealed from the judgment in favor of Oregon Trail in the second Oregon Trail action and that the appeal was still pending when the trial court entered judgment in favor of Oregon Trail in this action. "[I]n California the rule is that the finality required to invoke the preclusive bar of [claim preclusion] is not achieved until an appeal from the trial court judgment has been exhausted or the time to appeal has expired." (Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1174; see Manco Contracting Co. (W.L.L.) v. Bezdikian (2008) 45 Cal.4th 192, 202 ["in California a judgment is not final and conclusive between the parties when it is on appeal, or for as long as it remains subject to appeal"]; Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 936 ["California law is settled that pending appeal a trial court judgment is not final and will not be given res judicata effect"].) Therefore, when the trial court ruled in this action that Fung's causes of action were barred by claim preclusion, the judgment in the prior action was not quite final for purposes of claim preclusion.
The trial court's premature finality ruling, however, was harmless. This court subsequently affirmed the judgment in favor of Oregon Trail in the second Oregon Trail action, and the time for Fung to seek review of that decision has expired. (Fung v. Oregon Trail Corporation (Nov. 19, 2018, B279366) [nonpub. opn.].) Because there is now a final judgment on the merits in the second Oregon Trail action, claim preclusion bars each of Fung's causes of action against Oregon Trail in this action. Reversal of the judgment against Fung to allow Oregon Trail to make the same argument, this time with a final judgment in hand, would produce the same result.
The trial court also awarded Oregon Trail attorneys' fees pursuant to Oregon Trail's loan agreement with Fung. Fung does not challenge the award.
C. The Trial Court Did Not Err in Finding Fung Was a Vexatious Litigant and Dismissing This Action
1. Applicable Law and Standard of Review
The California vexatious litigant statutes "provide[ ] that in any litigation pending in a California court, the defendant may move for an order requiring the plaintiff to furnish security on the ground the plaintiff is a vexatious litigant and has no reasonable probability of prevailing against the moving defendant . . . . If, after a hearing, the court finds for the defendant on these points, it must order the plaintiff to furnish security 'in such amount and within such time as the court shall fix.' [Citation.] The plaintiff's failure to furnish that security is grounds for dismissal." (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1170; see §§ 391.1, 391.3-391.4.)
"An order determining a party to be a vexatious litigant and requiring the posting of security under section 391.3 is not directly appealable." (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635 (Golin); see Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 988, fn. 2.) But where, as here, "the plaintiff subsequently fails to furnish security, an appeal lies from the subsequent order or judgment of dismissal that follows under section 391.4." (Golin, at p. 635; see Childs, at p. 988, fn. 2.) "We review the trial court's order declaring a party to be a vexatious litigant for substantial evidence." (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265; see Garcia v. Lacey (2014) 231 Cal.App.4th 402, 407 (Garcia); Golin, at p. 636.) "Because the trial court is best suited to receive evidence and hold hearings on the question of a party's vexatiousness, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment." (Golin, at p. 636; see Goodrich, at pp. 1265-1266; Garcia, at p. 407.)
We similarly review "a court's decision that a vexatious litigant does not have a reasonable [probability of prevailing] in the action" for substantial evidence, although any "questions of statutory construction or interpretation are still reviewed de novo, as are questions of law." (Golin, supra, 190 Cal.App.4th at p. 636; accord, Garcia, supra, 231 Cal.App.4th at p. 408.) The court's determination whether the plaintiff has a reasonable probability of prevailing "is based on an evaluative judgment in which the court is permitted to weigh evidence." (Garcia, at p. 408; accord, Golin, at p. 636; see Singh v. Lipworth (2014) 227 Cal.App.4th 813, 828.) "[T]he court does not assume the truth of a litigant's factual allegations and it may receive and weigh evidence before deciding whether the litigant has a reasonable chance of prevailing." (Golin, at p. 635.)
2. Substantial Evidence Supported the Trial Court's Determination Fung Was a Vexatious Litigant
The trial court determined Fung was a vexatious litigant under section 391, subdivision (b)(1). Subdivision (b)(1) provides a party is a vexatious litigant if, "[i]n the immediately preceding seven-year period," he or she "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 . . . ."
Fung asserts she is not a vexatious litigant, but she does not support her assertion with argument or address the requirements of section 391, subdivision (b), let alone argue they have not been satisfied. Thus, Fung has forfeited any challenge to the court's determination. (See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 ["We may and do 'disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt.'"]; City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [same].)
Even if Fung had not forfeited the argument, substantial evidence supported the trial court's finding she was a vexatious litigant. Section 391 defines a "litigation" as "any civil action or proceeding, commenced, maintained or pending in any state or federal court." Fung has commenced at least five self-represented actions since 2014 that were finally determined adversely to her.
First, Fung filed the first Oregon Trail action in August 2014. Fung voluntarily dismissed that action. A voluntary dismissal is a final adverse determination for purposes of section 391, subdivision (a). (See Garcia, supra, 231 Cal.App.4th at pp. 406-407 ["A litigation is finally determined adversely to a plaintiff if he does not win the action or proceeding he began, including cases that are voluntarily dismissed by a plaintiff."]; Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779 [an "action which is ultimately dismissed by the plaintiff, with or without prejudice, is nevertheless a burden on the target of the litigation and the judicial system," and a "party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the actions through to completion"].)
Second, Fung filed her first Chapter 13 bankruptcy petition in November 2014, which she also voluntarily dismissed after Oregon Trail objected to her proposed Chapter 13 plan. (See City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 685 [litigant who "relentlessly abused the processes of both the state and bankruptcy courts" was vexatious]; cf. In re Fillbach (9th Cir. 2000) 223 F.3d 1089, 1090 [affirming dismissal of a bankruptcy petition where the bankruptcy court declared the plaintiff a vexatious litigant for filing and dismissing multiple bankruptcy petitions and filing frivolous motions]; In re Reilly (Bankr. 9th Cir. 1990) 112 B.R. 1014, 1017 ["It has been widely held that the courts, including the bankruptcy courts, have the power to enjoin a party from filing pleadings when and to the extent necessary to protect themselves and other parties from the chaos and burdens of vexatious, duplicative, frivolous litigation."].)
Third, Fung filed another Chapter 13 bankruptcy petition in July 2015. After the bankruptcy court denied Fung's motion to stay the foreclosure (and granted Oregon Trail's motion for relief from the automatic stay), Fung voluntarily dismissed that petition. Fung also appealed from the bankruptcy court's order denying the stay, and the district court affirmed that order in August 2016. (Fung v. Oregon Trail Corporation (C.D. Cal. Aug. 20, 2016, No. CV 15-6254).)
The trial court ruled Fung's bankruptcy petition and her subsequent appeal to the district court were two separate "litigations" for purposes of section 391, subdivision (b). An appeal can qualify as a "new litigation" for purposes of section 391.7, which permits a court to require a vexatious litigant to "first obtain[ ] leave of the presiding justice or presiding judge of the court" before filing new litigation. (§ 391.7, subd. (a); McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1220-1221, disapproved on another ground in John v. Superior Court (2016) 63 Cal.4th 91, 99, fn. 2.) But Oregon Trail does not cite any authority stating that a court order and subsequent affirmance of that order by a reviewing court qualify as two different "litigations" for purposes of section 391, subdivision (b). Even counting the bankruptcy court petition and appeal to the district court as only one qualifying litigation, however, Fung still filed five litigations that were determined adversely to her.
Fourth, Fung filed an action against County Records Research, Inc. and AIM in March 2016. (Fung v. County Records Research Inc. (Super. Ct. L.A. County, 2016, No. YC071185).) Fung voluntarily dismissed that action as well.
Finally, Fung filed an action against CitiMortgage, Inc. (erroneously sued as Citi Bank) in May 2016. (Fung v. Citi Bank (Super. Ct. L.A. County, 2017, No. YC071294).) In February 2017 the trial court sustained CitiMortgage's demurrer without leave to amend, and in May 2017 it entered judgment in favor of CitiMortgage.
The trial court also ruled the present action qualified as a litigation determined adversely to Fung because the court had already sustained Oregon Trail's demurrer without leave to amend when it ruled on the motions to declare Fung a vexatious litigant. Because the court had not rendered a final judgment against Fung, however, this was not a final adverse determination under section 391. (See Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1502 ["Although the term 'finally determined' is not defined in section 391, courts have defined it as the time a judgment becomes final for all purposes, i.e., 'when all avenues for direct review have been exhausted.'"].)
3. Substantial Evidence Supported the Trial Court's Determination That Fung Had No Reasonable Probability of Prevailing Against AIM or BDR
Fung presented little evidence in support of her causes of action, and there were many reasons to doubt the veracity of Fung's allegations. (See Garcia, supra, 231 Cal.App.4th at p. 408 [court's determination "is based on an evaluative judgment in which the court is permitted to weigh evidence"].) First, Fung provided almost no evidence in opposition to AIM's and BDR's motions. Fung alleged in her complaint that employees of AIM and BDR stole $198,500 in cash from her house, but she did not submit any evidence that she ever had the cash or that AIM and BDR stole it. And although she claimed AIM and BDR stole $500 million worth of ceramic art, Fung did not itemize the pieces of ceramic art she alleged were stolen or damaged, nor did she explain how she valued the art. The only evidence Fung submitted was an unauthenticated letter from a neighbor who wrote she had been to Fung's house once and had seen "a colorfully painted porcelain ceramic patio table," colorfully painted "large ceramic tanks," and a "finely carved glass bowl." The neighbor also stated she saw people packing items into a moving truck several days after Fung was allegedly locked out of her property, but the neighbor did not say the items were the ceramic pieces she had previously seen, nor did she provide any description of the items.
Second, in their motions for an order requiring Fung to post security, AIM and BDR demonstrated they served discovery requests asking Fung to identify all evidence that supported her claims, and Fung did not produce any evidence in response. The court could reasonably infer Fung failed to provide responsive evidence because there was no such evidence.
Finally, the merits of Fung's claims were questionable, particularly given the amount of money and value of the ceramic artwork she claimed AIM and BDR stole. The Notice of Default and Election to Sell Under Deed of Trust for Fung's house was recorded in June 2014. Because Fung filed several actions to prevent the foreclosure, AIM did not obtain title to the house for over a year and did not obtain a judgment in its unlawful detainer action against Fung until November 25, 2015. Even then, Fung alleged she remained in the house until May 2016. The court was not required to believe that Fung, despite having access to the house for nearly two years after the notice of default, and despite knowing she faced foreclosure, still left nearly $200,000 in cash and millions of dollars of art in the house when she was finally forced to leave. (See Golin, supra, 190 Cal.App.4th at p. 635 ["the court does not assume the truth of a litigant's factual allegations and it may receive and weigh evidence"]; Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 213 [the "rationale[ ] supporting the substantial evidence standard of review [is] appellate courts should . . . defer to the fact finder's assessment of a witness's credibility"].)
Fung does not argue in her briefs that she posted the required security, and there is no evidence she did. Fung did file on March 26, 2018 a document titled "Plaintiff's Response To This Court's 'Nature of Proceedings,'" which attached as an exhibit two pages from an application for "residential property" insurance that included a handwritten note stating, next to a line proposing "personal liability" coverage of $300,000, "this amount cover attorney fee of $185,000.00." Fung also filed on May 2, 2018 a document titled "Plaintiff's Motion To Request For Set Aside The Order Of Dismissal; Also Opposition To Defendant's Attack To Plaintiff To Be 'Vexatious Litigant,'" in which Fung stated that she "bought insurance" in the amount of $185,000 for defendants' attorneys' fees and that her insurance agent told her "your insurance will cover your legal bills," and which attached what appeared to be two pages from the same application for insurance. None of these documents was a bond or undertaking in the form required by sections 995.140 and 995.190. Therefore, the trial court did not err in dismissing the action with prejudice.
DISPOSITION
The judgments are affirmed. Fung's request for a jury trial is denied. Oregon Trail, AIM, and BDR are to recover their costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.