Opinion
D057775
02-14-2012
JOHN MALLEN, Plaintiff and Appellant, v. PACIFIC MARITIME ASSOCIATION et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2009-000094341)
APPEAL from an order of the Superior Court of San Diego County, Yuri Hofmann, Judge. Affirmed.
In this case, on the strength of a misleading declaration, plaintiff, who was the subject of a prefiling order under Code of Civil Procedure section 391.7, was given permission to file a civil complaint in propria persona. In response to the complaint, defendants successfully moved for an order determining plaintiff is a vexatious litigant within the meaning of section 391, subdivision (b) and requiring plaintiff post security under section 391.3. When plaintiff failed to timely post the required security, the trial court dismissed his complaint.
All further statutory references are to the Code of Civil Procedure.
We affirm. We agree with plaintiff that with respect to the current proceedings, plaintiff is not a vexatious litigant within the particular meaning of section 391, subdivision (b). However, the record shows that plaintiff's current complaint lacks any merit. The record further demonstrates that but for the misleading declaration plaintiff provided to the trial court, he would not have been given permission to file the complaint in the first instance and that it is subject to a motion to strike. Given these circumstances, plaintiff was not prejudiced by the trial court's eventual order dismissing his complaint.
FACTUAL AND PROCEDURAL BACKGROUND
We grant the parties' respective motions to augment the record and defendants' request that we take judicial notice of rulings in related proceedings.
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1. 1998 Vexatious Litigant Determination and Order
In 1998, in the context of a lawsuit plaintiff and appellant John Mallen brought against a homeowners association, the trial court determined Mallen was a vexatious litigant. In addition to requiring that Mallen post security in his proceeding against the homeowners association, the trial court prohibited Mallen "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."
2. Casual Work at Port
In 2002 Mallen began working at the Port of San Diego as a longshoreman doing casual work. Under the terms of a collective bargaining agreement between port employers and the longshoremen's union, a joint management and union committee, a Joint Port Labor Relations Committee (JPLRC) controlled assignment of casual workers to port jobs and received complaints from employers.
Mallen's career at the port did not work out well. In May 2003 Mallen was tested for drug use and found to have marijuana in his system. Mallen was disciplined and as part of the discipline was required to take three additional random drug tests.
On October 20, 2003, before Mallen was asked to take any of the random drug tests, the employer he was working for that day, defendant and respondent SSA Pacific (SSA), sent Mallen back to the longshoremen's hiring hall because of incompetence. SSA reported Mallen was acting bizarrely and had driven a yard tractor and chassis through a chain link fence, destroying 70 feet of the fence. As a result of the accident, Mallen was required to submit to an immediate drug and alcohol test, which he passed.
Notwithstanding the fact Mallen passed the October 20, 2003 drug and alcohol test, SSA filed a complaint against him with the JPLRC. In addition to complaining about the October 20, 2003 accident, SSA complained about an earlier incident, which occurred on October 15, 2003. According to SSA, Mallen had performed incompetently that day and had been directed to return to the hiring hall. Following receipt of SSA's complaint, the JPLRC placed Mallen on a nondispatch status.
On October 29, 2003, Mallen sent PMA a letter advising it that he intended to file a complaint with the Occupational Safety and Health Administration (OHSHA). According to Mallen, there was inadequate drinking water at the SSA work site and the brakes on the tractor he had been driving on October 20, 2003, were defective. Mallen argued that he brought up these issues with SSA and that it retaliated against him by filing a complaint with the JPLRC.
On October 29, 2003, under the terms of the earlier disciplinary action against him, defendant and respondent Pacific Maritime Association (PMA), an association of port employers, directed Mallen to produce a urine sample for drug testing. In response to the October 29 direction to provide a urine sample, Mallen appeared at the testing facility designated by PMA after hours and left a urine sample that was not tested; Mallen then went to an unauthorized testing facility and provided a second sample.
Because neither of the October 29, 2003 samples Mallen provided met PMA's requirements, on October 30, 2003, PMA directed Mallen to produce another urine sample for testing. Mallen produced a sample at the designated facility on October 30, 2003; however, the testing facility reported the sample Mallen provided was too diluted to permit accurate testing.
After receiving the testing facilities report on the October 30 sample, on November 5, 2003, PMA directed Mallen to produce yet another urine sample. Mallen again produced a sample which was too diluted to permit accurate testing.
On November 20, 2003, the JPLRC determined Mallen's failure to provide valid tests and his conduct while working for SSA violated the terms of the collective bargaining agreement between the longshoremen's union and the employers. The JPLRC referred the matter to an area arbitrator for determination of appropriate discipline.
On January 29, 2004, over the objection of SSA, which wanted Mallen to no longer be subject to dispatch, the arbitrator instead suspended Mallen from dispatch for 90 days and required he submit to 12 additional drug tests upon his return to work. When the period of suspension was over on May 1, 2004, a dispute arose between Mallen and the PMA with respect to Mallen's compliance with the 12 additional drug tests ordered by the arbitrator. Although Mallen contends he complied with a drug test ordered July 22, 2004, the PMA filed a complaint against him with the JPLRC in which the PMA alleged Mallen showed up a day late for the July 22, 2004 test. The JPLRC took Mallen off the dispatch list until the PMA's complaint about him was resolved. Mallen never again returned to work at the port.
3. Administrative Complaints
The record shows that after disciplinary action taken against him, Mallen filed complaints against SSA, PMA and defendant and respondent Local 29 of the International Longshoremen's and Warehousemen's Union (Local 29) with a host of administrative agencies. Mallen filed complaints with the Division of Labor Standards Enforcement and the Department of Industrial Relations alleging wage and hour violations and retaliation for complaints he made about working conditions at the SSA work site. Both agencies denied Mallen any relief. Mallen also filed an unsuccessful complaint with the National Labor Relations Board against SSA, PMA and Local 29 alleging violations of the National Labor Relations Act.
4. Federal District Court
On November 7, 2006, acting in propria persona, Mallen filed a complaint in federal district court against SSA, PMA and Local 29 in which he alleged various federal and state claims arising out of his employment at the port and the discipline he received. In particular, he alleged Local 29 had failed to adequately represent him. On June 26, 2009, the federal district court dismissed Mallen's federal claims and declined to retain jurisdiction over Mallen's state law claims. The district court awarded the defendants $11,178 in costs.
5. These Proceedings
Because he could not file an action in the trial court in propria persona as a matter of right, on July 27, 2009, Mallen asked the trial court for permission to file the employment claims which had been dismissed by the federal district court in the trial court. His application to file the new complaint was supported by a statement that "Magistrate judge states this is a good case." The trial court granted Mallen's request and his complaint was filed and served.
Mallen's complaint sets forth one cause of action in which he alleges he was terminated from employment at the port because of the health and safety complaints he made after disciplinary proceedings had been initiated against him.
In response to the complaint, defendants SSA, PMA and Local 29 filed a motion to require that Mallen post a bond to secure their costs. Mallen opposed the motion and argued he was no longer a vexatious litigant and in fact had "given up . . . suing people." In addition to opposing the motion to require a bond, Mallen made a separate motion to be relieved of the order determining he is a vexatious litigant in the presiding department of the trial court.
The trial court judge in the department to which Mallen's complaint had been assigned, heard and granted Mallen's motion to require a bond. In particular, the trial court found no evidence in the record which supported Mallen's contention that a federal Magistrate judge had stated that he had a "good case." The trial court set the amount of the bond at $11,178 and required that it be posted within 20 days. Mallen failed to post the bond and the trial court thereafter dismissed his complaint.
After Mallen's complaint was dismissed, the presiding judge heard and denied Mallen's request to be relieved of the prior order determining he is a vexatious litigant.
Mallen filed a timely notice of appeal from the order dismissing his complaint.
I
On appeal Mallen's argues the record will not support a determination he is a vexatious litigant within the meaning of section 391, subdivision (b). We agree with Mallen's contention.
Security may be required of a litigant under section 391.3, if the litigant is determined to be a vexatious litigant within the meaning of section 391, subdivision (b). Both in the trial court and on appeal defendants have argued the 1998 order determining Mallen was a vexatious litigant in the earlier proceeding against the homeowners association satisfied this requirement. Not so.
Section 391, subdivision (b) provides in pertinent part: " 'Vexatious litigant' means a person who does any of the following: [¶] . . . [¶]
"(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence." (Italics added.)
Although not cited by the parties, the court in Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1581 (overruled on other grounds in Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 785, fn. 7), interpreted this provision as follows: "Neither party, nor our own research, has disclosed a case that interprets the phrase 'substantially similar' in section 391, subdivision (b)(4). It is an elementary rule of statutory interpretation, however, that '[w]here, as here, a word is not defined in a statute, its commonly accepted meaning applies. [Citation.]' [Citation.] Black's Law Dictionary defines 'substantially' in part as 'Essentially . . . in the main . . . materially; in a substantial manner.' (Black's Law Dict. (5th ed. 1979) p. 1281.) 'Similar' is defined in part as 'having a general likeness, although allowing for some degree of difference.' (Id. at p. 1240.) Subdivision (b)(4) is satisfied, therefore, when the proceeding in which the party was declared a vexatious litigant, and the proceeding in which he or she is sought to be declared a vexatious litigant in reliance on the earlier proceeding, arise from essentially the same facts, transaction or occurrence. This can be determined by examination of the factual circumstances that underlie the two proceedings and the pleadings."
Here, we are unaware of any factual similarity or connection between Mallen's 1998 dispute with the homeowners association and his employment at the port. The current claims appear to have arisen out of entirely distinct activities on Mallen's part and involve entirely distinct claims against different parties. Thus the 1998 order did not meet the requirement of section 391.3 that Mallen be a vexatious litigant. (See Devereaux v. Latham & Watkins, supra, 32 Cal.App.4th at p. 1581.)
Moreover, nothing else in the record will support a finding Mallen is a vexatious litigant under the alternative definitions of the term provided by section 391, subdivision (b): There is no showing that in the seven years preceding commencement of this action Mallen unsuccessfully maintained five previous "litigations" in propria persona. (§ 391, subd. (b)(1).) In this regard, Mallen's administrative challenges to the discipline he received were not "litigation" within the terms of the statute, which is limited to proceedings "maintained or pending in any state or federal court." (§ 391, subd. (a).)
We also note defendants did not attempt to show that after litigation was finally determined against Mallen he repeatedly attempted to relitigate it (§ 391, subd. (b)(2)) or that in any litigation while acting in propria persona, Mallen repeatedly filed unmeritorious pleadings or motions or engaged in frivolous tactics. (§ 391, subd. (b)(3).)
Because the record will not support a finding Mallen was a vexatious litigant within the meaning of section 391, subdivision (b), the trial court erred in requiring that he post security under section 391.3.
II
Our finding of error does not end our consideration of Mallen's appeal. The California Constitution, article VI, section 13 provides in pertinent part: "No judgment shall be set aside, or new trial granted, in any cause, on the ground of . . . any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." If, notwithstanding the trial court's error, "the judgment is the only proper one in the state of the record, i.e., under the pleadings and evidence the same result would have been reached even if the error had not been committed, there is no miscarriage of justice." (9 Cal. Procedure, (5th ed.), Witkin, Appeal, § 442, p. 495; see also Stafford v. People (1956) 144 Cal.App.2d 79, 81-82.)
In Stafford v. People the defendant moved to quash service of a summons and dismiss for lack of jurisdiction, but did so on grounds which included an attack on the complaint on its merits. The trial court granted the motion to quash and dismissed the complaint. On appeal the court noted that by attacking the complaint on the merits the defendant had waived any jurisdictional defect. In nonetheless affirming the dismissal the court found the complaint failed to state a valid cause of action and that the trial court's order was correct, even if the procedure it employed was defective: "It would be an idle act to remand the case to the trial court for further proceedings when it is obvious that no cause of action existed at the time the action was brought and plaintiff could not in any event prevail through any further proceedings in that court." (Id. at p. 82.)
Much the same circumstance exists here. Although Mallen is not a vexatious litigant within the particular meaning of section 391, subdivision (b), at the time he filed his current complaint against defendants, he was subject to a prefiling order under section 391.7, subdivision (a). Where a prefiling order has been made, "[t]he presiding judge shall permit the filing of [new litigation] only if it appears the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3." (§ 391.7, subd. (b).)
In attempting to satisfy the requirements of section 391.3, Mallen filed an affidavit in which he represented that a federal magistrate had determined that he had a "good case." As we have also noted, there is nothing in the record to support this representation.
Moreover, the record shows, Mallen's complaint lacks any merit. The principal defect in his complaint is his allegation that, although the lengthy series of drug testing and disciplinary proceedings which led to his termination had been initiated months before he made any complaints about work site conditions, his termination was somehow in retaliation for his complaints. Such a sequence of events will not support a retaliatory termination complaint. (See Slattery v. Swiss Reinsurance America Corp. (2d Cir. 2001) 248 F.3d 87, 95 [no inference of retaliation can be drawn where "gradual adverse job actions [that] began well before the plaintiff had ever engaged in any protected activity"].)
Thus it is clear that on remand defendants would be entitled to either relief from the order permitting Mallen to file his complaint in the first instance or a direct ruling on the merits in the form of an order sustaining a demurrer or granting a motion for summary judgment. In either event, as in Stafford v. People, here it would be an idle act to remand this case for further proceedings.
DISPOSITION
The order of dismissal is affirmed.
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BENKE, Acting P. J.
WE CONCUR:
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HUFFMAN, J.
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O'ROURKE, J.