Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Frank Gafkowski, Jr., Judge, Super.Ct.No. SCVSS099030
Jeffrey S. Mintz for Plaintiff and Appellant.
Fullerton, Lemann, Schaefer & Dominick, LLP and Michael R. Schaefer for Defendants and Respondents.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Plaintiff Gerald Hanson appeals from a judgment of dismissal of his attorney malpractice action against defendants James DeAguilera and James DeAguilera, a Professional Corporation, for failure to post security under Code of Civil Procedure section 391, subdivision (c). Although Hanson concedes the trial court properly found him to be a vexatious litigant, he contends the trial court abused its discretion in setting the amount of security at $100,000.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
In his opening brief, Hanson challenged that finding, but in his reply brief, he conceded that the trial court’s order was based on a properly applicable theory.
II. FACTS AND PROCEDURAL BACKGROUND
A. Hanson’s Actions Against DeAguilera
On November 16, 2001, Hanson, acting in propria persona, filed his first action against DeAguilera and others (San Bernardino County Superior Court, case No. CVI058937) for “unlawful forcible detainer, conspiracy to commit unlawful forcible detainer, and violation of a federal contract, conspiracy to commit a false clouding of a real property title, malicious conspiracy to breach a contract, conspiracy to commit criminal perjury, interstate flight in the transportation of stolen property, negligent infliction of emotional distress, and intentional infliction of emotional distress.” (Capitalization omitted.) Hanson alleged, among other things, that DeAguilera and other parties conspired at a settlement conference to “remove [Hanson] from his own property”; DeAguilera had “tried to take over as an attorney for [Hanson’s] breach of contract case” against Ranson Sabala, although DeAguilera had no authority to do so; DeAguilera conspired against Hanson; and DeAguilera failed “to do the very best” for Hanson in his legal representation of Hanson. The lawsuit was dismissed with prejudice against all parties on February 20, 2002.
On August 23, 2002, Hanson filed another lawsuit against DeAguilera (San Bernardino County Superior Court, case No. SCVSS089096) alleging professional negligence, breach of contract, money had and received, money paid, breach of fiduciary duty, negligent infliction of emotional distress, and fraud. Hanson sought damages based on DeAguilera’s representation of Hanson in four matters: (1) an action to challenge the City of San Bernardino’s ordinance regarding unlicensed dogs; (2) an action concerning the County of San Bernardino’s wrongful conversion of Hanson’s truck; (3) a lawsuit Hanson had brought against Sabala; and (4) an appeal from a criminal conviction Hanson had suffered in the City of Redlands. The lawsuit was dismissed without prejudice on October 30, 2002, after Hanson repeatedly failed to appear for case management conferences.
On January 16, 2003, Hanson filed his third lawsuit against DeAguilera (San Bernardino County Superior Court, case No. SCVSS099030) alleging causes of action identical to those alleged in case No. SCVSS089096.
B. DeAguilera’s Motion for Security
On January 22, 2003, the San Bernardino County Superior Court, in case No. VCV022630, a breach of contract case initially filed against Hanson by Sabala, issued a prefiling order declaring Hanson to be a vexatious litigant and prohibiting Hanson from filing any new litigation in propria persona without approval of the presiding judge of the court in which the action was to be filed. However, the court did not require Hanson to post a bond in case No. VCV022630 because no evidence had been presented as to the probability of Hanson’s success in that action.
On March 19, 2003, DeAguilera filed a motion seeking to have Hanson declared a vexatious litigant and to be required to post security. In support of the motion, DeAguilera submitted a copy of the prefiling order entered in case No. VCV022630 and referred to Hanson’s two prior cases against DeAguilera that had been dismissed.
DeAguilera contended he was likely to prevail in the current action because (1) Hanson had admitted in the complaint that he had been aware of the alleged acts of malpractice in August 2001, more than one year before the complaint was filed, and DeAguilera contended his representation of Hanson ended in August 2001; and (2) the dismissal with prejudice in case No. CVI058937 was res judicata as to the cause of action based on DeAguilera’s representation of Hanson in the Sabala matter. The trial court denied the motion without prejudice because DeAguilera, who was representing himself in pro. per., had not filed evidence in support of costs.
DeAguilera refiled the motion with the same supporting documents, as well as an additional declaration in which he estimated the costs of defending the action to be $11,551.50. The trial court granted the motion on June 3, 2003, and required Hanson to post security in the amount of $851. The court disallowed DeAguilera’s estimated attorney fees because DeAguilera was then acting in propria persona but indicated that DeAguilera could augment his request if he retained counsel. Hanson posted security in the amount required.
C. DeAguilera’s Demurrer and Pretrial Motions
DeAguilera filed a demurrer to the complaint on the ground the one-year statute of limitations applicable to attorney malpractice claims had run. Hanson filed a first amended complaint (FAC) on August 7, 2003. In the FAC, Hanson added the allegation that although Hanson had discovered the acts that formed the basis of his causes of action in August 2001, “Hanson continued to be represented by defendants for six additional months or defendants withheld Hanson’s legal files, or both. Defendants were aware that a statute of limitations applied to any suit against them by plaintiff and that as long as defendants continued to represent him he would not likely file suit as he would not be able to put the facts together sufficiently to write a complaint. By their conduct in continuing to represent plaintiff and refusing to deliver his legal papers and files, and refusing to substitute out of the cases, defendants intended to delay plaintiff in promptly seeking relief on his cause of action, and plaintiff reasonably relied on defendants’ conduct to his detriment when he delayed more promptly seeking relief because it seemed improper to sue your attorney while he still represents you.” The trial court sustained the demurrer with leave to amend.
On September 24, 2003, Hanson filed a second amended complaint (SAC) that deleted allegations of malpractice in DeAguilera’s handling of the criminal appellate matter.
DeAguilera filed a demurrer to the SAC on the grounds the SAC was ambiguous and uncertain, and the SAC did not plead adequate facts. The trial court overruled the demurrer, and DeAguilera filed his answer to the action.
On February 19, 2004, DeAguilera filed a motion for judgment on the pleadings on the grounds the SAC did not state facts sufficient to constitute a cause of action; the SAC was barred by the statute of limitations; Hanson had not obtained prior approval of the court before filing the action, although he had been declared a vexatious litigant; and Hanson was pursuing the litigation for the improper purpose of harassment. The trial court denied the motion.
On June 19, 2006, DeAguilera also filed a motion for summary judgment on the ground of the statute of limitations. In his declaration in support of the motion, DeAguilera stated that his legal representation of Hanson in all matters had ended in August 2001, and he had returned all files and documents to Hanson on August 22, 2001. The trial court denied the motion without prejudice.
D. DeAguilera’s Request for Increase in Security
On March 22, 2007, DeAguilera filed a motion for dismissal or for increase in security to $150,000. DeAguilera represented that he intended to retain attorney Michael Schaeffer to defend him at an anticipated cost of $150,000. Schaefer also filed a declaration in support of DeAguilera’s motion to increase security. Schaefer stated he had reviewed the SAC, which alleged that DeAguilera had committed malpractice in connection with four separate lawsuits, each of which constituted a “case within a case.” Schaefer stated that the defense could be “difficult, laborious and time consuming,” and that he had initially told DeAguilera his fee for the defense would probably be $75,000, but that “[a]fter reviewing the complaint and the website information in detail,” he had concluded the case would “cost between $100,000.00 and $150,000.00 if it [went] to trial. The case is mind-boggling in its complexity.” Hanson objected to the motion on the ground, among others, that Schaefer “[did] not state . . . what his customary rate or customary charges are for similar work or how many actual hours he anticipate[d] being required for the anticipated representation.” The trial court denied the motion without prejudice on the ground it was premature, in that Schaeffer had not substituted in as counsel.
In June 2007, Schaefer substituted in as attorney for DeAguilera. On July 11, 2007, Schaefer filed supplemental briefing and a request for judicial notice to DeAguilera’s motion to increase the amount of security to reflect that attorney fees would be incurred in the trial of the case.
Following a hearing, the trial court granted the motion and increased the security to $100,000. Hanson failed to post the additional security, and the trial court dismissed the case with prejudice.
III. DISCUSSION
A. Request for Judicial Notice
DeAguilera has filed a request for this court to take judicial notice of (1) a request for judicial notice filed in case Nos. VCV022630 and CVI057780 in support of his motion for an order declaring Hanson a vexatious litigant with supporting exhibits; (2) the memorandum of points and authorities in support of that motion; and (3) the declaration of counsel in support of that motion. Although invited to do so, Hanson has not filed any opposition to the request for judicial notice. Rather, in his reply brief, Hanson appears to have conceded that judicial notice was proper. We will therefore take judicial notice of the documents.
B. Order Requiring Posting of Security
Hanson contends the trial court abused its discretion in setting the amount of security at $100,000.
1. Standard of Review
An order setting the amount of security is reviewed for abuse of discretion. (See, e.g., Children’s Hospital & Medical Center v. Bonta´ (2002) 97 Cal.App.4th 740, 782 [abuse of discretion standard applied to value of legal services rendered].)
2. Analysis
Section 391.1 provides: “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.”
Under section 391, subdivision (c), “‘Security’ means an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party’s reasonable expenses, including attorney’s fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.” Section 391.3 provides that if the trial court determines, after a hearing, that the plaintiff is a vexatious litigant and that there is no reasonable likelihood the plaintiff will prevail, “the court shall order the plaintiff to furnish . . . security in such amount and within such time as the court shall fix.”
In McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1218, the court held that the vexatious litigant statutes do not impose any requirement of a hearing and evidence to support the amount of an undertaking. The court explained, “Sections 391.2 and 391.3 require a hearing and evidence on the question of whether plaintiff is a vexatious litigant, but section 391.3 states only that if the court finds plaintiff is vexatious and probably will not prevail, it ‘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.’ The statute says nothing about a hearing and evidence on the amount of the undertaking.” (Ibid.)
In Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571 (Devereaux), disapproved on other grounds in Moran v. Murtaugh Miller Meyer & Nelson LLP (2007) 40 Cal.4th 780, 785 footnote 7, a vexatious litigant contended that the amount of security required, $25,000, in her action against her former employer, was arbitrary. The court stated, “[W]e need note only that the amount of security required was supported by an affidavit from an attorney in respondent’s office based on discovery which appellant had filed in the action and her conduct in other litigation with respondent. This evidence is sufficient to support the amount of the security. (Estate of Ivey (1994) 22 Cal.App.4th 873, 881 . . . [‘[O]ur function is limited to determining if there is any substantial evidence to support the trial court’s order.’].)” (Devereaux, supra, at pp. 1587-1588.)
Here, the amount of security was supported by Schaeffer’s declaration in which he stated that his firm’s expected fee to represent DeAguilera against Hanson’s claims would be $100,000 to $150,000 based on the complexity of the legal malpractice claims, each of which would have to be tried as a separate “case-within-a case.”
We conclude that Schaeffer’s declaration constituted substantial evidence to support the trial court’s order (Devereaux, supra, 32 Cal.App.4th at pp. 1587-1588), and the amount of security required was therefore not an abuse of discretion.
IV. DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., GAUT, J.