Opinion
C089972
08-30-2023
NORTHERN CALIFORNIA COLLECTION SERVICE, INC., Plaintiff and Respondent, v. RAYMOND H. PIERSON III, Defendant and Appellant; GERALD MCINTYRE et al., Respondents.
NOT TO BE PUBLISHED
Super. Ct. No. 17CVC10112
Duarte, J.
Plaintiff Northern California Collection Service, Inc. (NCCS) brought a debt collection action against defendant Raymond H. Pierson, III, M.D., to collect unpaid rent due under a commercial lease agreement for office space. Dr. Pierson, proceeding in propria persona, filed a cross-complaint against NCCS and others, including the owners of the office building, alleging numerous claims (e.g., negligence, breach of contract, fraud, defamation). Dr. Pierson appeals from the judgments of dismissal entered in favor of the cross-defendants after the trial court declared him to be a vexatious litigant within the meaning of Code of Civil Procedure section 391, subdivision (b)(1), ordered him to furnish security to avoid dismissal of his cross-complaint (§ 391.3, subd. (a)), and imposed a prefiling order prohibiting him from filing any new litigation in propria persona without first obtaining leave of the presiding justice or judge (§ 391.7, subd. (a)).
Undesignated statutory references are to the Code of Civil Procedure.
Dr. Pierson argues that the judgments of dismissal, which were entered after he failed to furnish the court-ordered security (§ 391.4), must be reversed because the trial court's vexatious litigant finding is not supported by substantial evidence. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the pertinent facts and procedural history. Additional background information relevant to the resolution of this appeal is set forth in the Discussion, post.
Prior Federal Litigation Commenced in Florida
Dr. Pierson is an orthopedic surgeon. In 1993, he moved to Orlando, Florida. Thereafter, he was granted medical staff privileges and performed surgeries at hospitals that were part of a non-profit private health care network serving central Florida--Orlando Regional Healthcare System (ORHS). Dr. Pierson's privileges included placement on the trauma and emergency call list.
In mid-1996, an investigation was initiated after complaints were received regarding Dr. Pierson's emergency room usage from nurses, technicians, and physicians at ORHS's hospitals. The complaints consisted of concerns that Dr. Pierson (1) took an excessive length of time completing his surgeries, (2) scheduled surgeries at inappropriate times, (3) delayed dictating operative notes, and (4) treated elective surgeries as urgent or semi-urgent cases.
In early 2004, following the investigation and administrative disciplinary proceedings that took more than seven years to complete, the ORHS board found that some of the complaints against Dr. Pierson's were valid and filed an adverse action report with the National Practitioner Data Bank, as required under the Health Care Quality Improvement Act of 1986 (HCQIA) (42 U.S.C. § 11101 et seq.). ORHS told Dr. Pierson that it would restore him to the trauma and emergency call list (from which he had been removed after a preliminary review of the complaints against him) if he was willing to comply with the standard policies and protocols that applied to all orthopedic surgeons on staff at ORHS's hospitals. Dr. Pierson refused to do so and instead moved to California in mid-2004 and opened a medical practice in Amador County.
Almost four years later, Dr. Pierson commenced a federal action in Florida. In January 2008, represented by counsel, he brought suit in the United States District Court for the Middle District of Florida, against ORHS, numerous physicians, the United States of America, and various federal and state agencies. The complaint, which arose out of the suspension of Dr. Pierson's trauma and emergency call and consulting privileges at ORHS's hospitals, alleged 22 claims, including breach of contract, intentional and unjustifiable interference with contractual relations, defamation, fraud, civil conspiracy, and multiple claims involving HCQIA.
Dr. Pierson asserted one claim alleging that ORHS and others violated HCQIA, and several claims seeking an order declaring HCQIA unconstitutional. HCQIA provides immunity from monetary liability for both individuals (e.g., physicians) and health care facilities that participate in reasonably informed, reasonably justified disciplinary decisions by qualified medical peer review bodies. (See Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 684-686 [observing that federal courts have generally held that "where the record establishes a sufficient quality-of-care basis for the peer review action, the disciplined physician cannot overcome the immunity by showing the peer reviewers acted in bad faith or with hostile motives"].)
In October 2010, the district court entered judgment against Dr. Pierson after it dismissed most of his claims and granted summary judgment on those remaining. Dr. Pierson, represented by counsel, appealed. In January 2012, the Eleventh Circuit Court of Appeals affirmed the judgment. In June 2012, the Eleventh Circuit denied Dr. Pierson's in propria persona petition for rehearing. In January 2013, the United States Supreme Court denied Dr. Pierson's in propria persona petition for writ of certiorari.
The petition for rehearing is not in the appellate record. In his opening brief on appeal, Dr. Pierson agrees he filed a petition for rehearing en banc in propria persona. However, the Eleventh Circuit's order denying the petition indicates that he sought both panel and en banc rehearing. It is immaterial to the resolution of this appeal whether he requested one or both forms of relief.
Prior Federal Litigation Commenced in California
In late January 2014, Dr. Pierson, proceeding in propria persona, filed a legal malpractice action in the United States District Court, Eastern District of California, against two attorneys who had represented him in the federal litigation in Florida. The claims alleged in this action arose out of the "grossly deficient legal advocacy provided by [the attorneys] in all stages of their representation of Dr. Pierson before the 11th Circuit Appellate Court." As a basis for subject matter jurisdiction, Dr. Pierson alleged diversity of citizenship.
In early February 2014, the California district court sua sponte transferred the action to the United States District Court, Southern District of Florida based on improper venue under 28 U.S.C. section 1406. The next day, the Florida district court sua sponte dismissed the action without prejudice due to Dr. Pierson's failure to sufficiently allege subject matter jurisdiction.
28 U.S.C. section 1406, subdivision (a) provides: "The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."
In April 2014, the Florida district court struck Dr. Pierson's first amended complaint because the action had not been "reopened following its dismissal." The court noted the dismissal was without prejudice to Dr. Pierson's "right to refile th[e] action." Less than two weeks later, he refiled the action and it was assigned a new case number.
In May 2014, the California district court denied Dr. Pierson's in propria persona motion to vacate the transfer order. In July 2014, the Ninth Circuit dismissed his in propria persona appeal of the transfer order and the order denying his motion to vacate the transfer order, explaining that it lacked subject matter jurisdiction because the challenged orders were not final or directly appealable. In February 2015, the United States Supreme Court denied Dr. Pierson's in propria persona petition for a writ of certiorari.
In July 2015, the Florida district court dismissed the "refiled" legal malpractice action. This dismissal occurred after Dr. Pierson informed the district court of his desire to prosecute the complaint he filed in a related action in the same district, which although unclear, was apparently filed in propria persona at some point in 2015.
Present Action
In 2016, Dr. Pierson maintained an orthopedic surgery practice at the Amador Professional Center, an office building owned by Gerald and Betty McIntyre (collectively McIntyres) and managed by Colliers International Real Estate Management Services, Inc. (Colliers International). He leased one of the office suites in the building, located in Jackson, California. On October 10, 2016, the office building was damaged when a woman crashed her car into the area near the "front office operations section" of Dr. Pierson's office. Thereafter, Dr. Pierson claimed that he could no longer evaluate and treat patients at his office due to the "negligent handling" of the repairs. As a consequence of the "exceptional financial disruption" caused by the "negligent and prolonged repairs," Dr. Pierson stopped paying rent and vacated his office on November 30, 2016.
In May 2017, NCCS filed a debt collection action against Dr. Pierson to collect the unpaid rent due under the terms of his commercial lease agreement.
In February 2018, Dr. Pierson, proceeding in propria persona, filed a "response" to the complaint and a cross-complaint against NCCS and others. The operative crosscomplaint, filed in October 2018, asserted numerous claims against NCCS, the McIntyres, Colliers International, and one other party. Among other things, Dr. Pierson alleged that the "negligent demolition and repairs" rendered his office "completely uninhabitable" due to a "toxic combination of dust, debris and other unknown inhalants," and that, due to the excessive amount of time it took to complete the repairs, he suffered financial loss and the temporary closure of his medical practice was "necessary to avoid complete financial insolvency." He further alleged that he and his staff sustained "permanent pulmonary injury" from their exposure to the contaminated office space, and that the "unlawful and fraudulent lawsuit" brought by NCCS "defamed [his] good name and caused exceptional emotional distress." Dr. Pierson claimed that "legal representatives" from NCCS filed a lawsuit which "advanced their demands on the basis of an invalid and expired lease," and noted that NCCS's complaint failed to inform the trial court about the damage caused by the "motor vehicle accident," which resulted in his office "being completely unacceptable for patient care for an extended period."
At all times, Dr. Pierson has proceeded in propria persona in the present action.
That party, the Amador Professional Center, was dismissed from this action for lack of service and is not involved in this appeal. Dr. Pierson alleged 14 claims against crossdefendants the McIntyres and Colliers International, including seven negligence claims, and claims for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud per se and intentional deceit, malicious use of process, abuse of process, defamation, and intentional infliction of emotional distress. He alleged five claims against NCCS, including breach of the implied covenant of good faith and fair dealing, fraud per se and intentional deceit, malicious use of process, abuse of process, defamation, and intentional infliction of emotional distress.
Vexatious Litigant Motions Filed in the Present Action
In early December 2018, NCCS moved for an order declaring Dr. Pierson to be a vexatious litigant within the meaning of section 391, subdivision (b)(1), requiring him to furnish security as a condition of prosecuting his cross-complaint (§ 391.3, subd. (a)), and imposing a prefiling order prohibiting him from filing any new litigation in propria persona without first obtaining leave of the presiding justice or judge (§ 391.7, subd. (a)). NCCS argued that such relief was warranted because Dr. Pierson had filed seven litigations in propria persona in the preceding seven years that were finally determined adversely to him, and that he had no reasonable probability of prevailing in this litigation (i.e., succeeding on any of the claims alleged in his cross-complaint). In support of its motion, NCCS requested the trial court take judicial notice of various court records.
Several weeks later, in late December 2018, the McIntyres and Colliers International moved for similar relief. Like NCCS, they sought an order declaring Dr. Pierson to be a vexatious litigant within the meaning of section 391, subdivision (b)(1), and requiring him to furnish security as a condition of prosecuting his cross-complaint (§ 391.3, subd. (a)). Also like NCCS, they argued that such relief was warranted because Dr. Pierson had filed seven litigations in propria persona in the preceding seven years that were finally determined adversely to him, and that he had no reasonable probability of succeeding on any of the claims alleged in his cross-complaint. In support of their motion, the McIntyres and Colliers International requested the trial court take judicial notice of various court records.
Unlike NCCS, the McIntyres and Colliers International did not move for a prefiling order.
Both vexatious litigant motions relied on court records from the two federal cases discussed ante. As set forth more fully post, although there was substantial overlap in the litigations identified by the moving parties to show that Dr. Pierson was a vexatious litigant, there were a few separate litigations offered for the trial court's consideration.
Dr. Pierson filed a joint opposition, arguing that the moving parties had failed to demonstrate that he was a vexatious litigant within the meaning of section 391, subdivision (b)(1). In arguing that he had not commenced, prosecuted, or maintained in propria persona at least five separate litigations that were finally determined adversely to him, he noted that the federal action commenced in Florida was "initiated by attorneys and taken through the late stages by attorneys," and that the related federal legal malpractice action commenced in California (and immediately transferred to Florida) had not been finally determined adversely to him. He did not, however, submit any evidence in support of his position or present reasoned argument with citations to pertinent authority. Nor did he ask the trial court to take judicial notice of any court records. Instead, without citation to supporting evidence, he provided a general and incomplete description of the procedural history of the federal cases.
Trial Court's Ruling on the Vexatious Litigant Motions
In early March 2019, a hearing was held on the vexatious litigant motions. Dr. Pierson argued, as he did in his joint opposition, that the moving parties had failed to demonstrate he was a vexatious litigant within the meaning of section 391, subdivision (b)(1). In so arguing, he noted that the moving parties had only cited two cases, and reiterated that he was represented by counsel in one of those cases in the trial court and on appeal, and that there was no final adverse determination in the other case. He insisted the moving parties were improperly attempting to rely on "all the little pieces" of the cases to establish his status as a vexatious litigant. At the conclusion of the hearing, the matter was taken under submission.
In late March 2019, the trial court issued a written order granting the vexatious litigant motions, finding that there was "substantial evidence" that Dr. Pierson had "commenced, prosecuted or maintained at least five actions as a self-represented litigant in the past seven years, all of which [were] finally determined adversely to him ([] § 391(b)(1))." In so finding, the court took judicial notice of and relied on the court records submitted by the moving parties. The court, however, did not identify which specific litigations qualified for vexatious litigant purposes. Without elaboration, the court also concluded that the moving parties had shown that there was no reasonable probability that Dr. Pierson would prevail in this litigation, noting that he effectively conceded the issue by failing to address it in his opposition. In addition to declaring Dr. Pierson to be a vexatious litigant, the court granted NCCS's request to enter a prefiling order against him and ordered him to furnish security in the amount of $77,020.32 as to NCCS and $63,723.10 as to the McIntyres and Colliers International. The court warned Dr. Pierson that the failure to furnish the security within 30 days would result in the dismissal of the moving parties from the cross-complaint.
Judgments of Dismissal
Dr. Pierson did not furnish the court-ordered security within 30 days.
In early May 2019, the trial court denied Dr. Pierson's ex parte application to extend the time to furnish the security. Shortly thereafter, the court entered judgment of dismissal in favor of NCCS. In a separate order, the court entered judgment of dismissal in favor of the McIntyres and Colliers International. Both judgments of dismissal were entered on May 7, 2019.
Motion for Reconsideration
In June 2019, after a hearing, the trial court denied Dr. Pierson's motion for reconsideration, in which he argued in part that the evidence submitted by the moving parties was not sufficient to support a vexatious litigant finding under section 391, subdivision (b)(1). The court found the motion procedurally deficient, as it was untimely and not supported by an affidavit or declaration. The court also rejected the motion on the merits, finding that it failed to set forth any new facts, circumstances, or law that would justify reconsideration.
Notice of Appeal and Extensions of Time to File Appellate Briefs
In July 2019, Dr. Pierson filed a timely notice of appeal, which indicated that he was appealing from the judgment entered on May 7, 2019, and various other orders and judgments.
Nearly three years later, after numerous extensions of time were granted, Dr. Pierson filed his opening brief and an appellant's appendix in April 2022. In his brief, Dr. Pierson stated that he sought reversal of both judgments of dismissal entered on May 7, 2019. However, the judgment of dismissal entered against the McIntyres and Colliers International was not included in the appellate record.
In May 2022, NCCS filed a respondent's brief. In its brief, NCCS noted that Dr. Pierson could not obtain reversal of the vexatious litigant finding because he failed to appeal from the judgment of dismissal entered in favor of the McIntyres and Colliers International.
Two weeks later, Dr. Pierson filed a motion in this court asserting that he intended to appeal both judgments of dismissal entered on May 7, 2019. He requested that we designate the McIntyres and Colliers International as respondents.
After Dr. Pierson (at our request) submitted a copy of the judgment of dismissal entered in favor of the McIntyres and Colliers International, we issued an order augmenting the record to include that document, directing the clerk of this court to designate the McIntyres and Colliers International as respondents, and ordering those parties to file a respondent's brief.
Following the stipulation for an extension of time, the granting of multiple requests for an extension of time, and the granting of a motion to file a revised and corrected reply brief, the case was fully briefed in April 2023.
DISCUSSION
I
Appellate Jurisdiction
As a threshold matter, we reject respondents' contention that the appeal must be dismissed because Dr. Pierson's notice of appeal failed to identify an appealable judgment or order.
A. Applicable Legal Principles
The existence of an appealable order or judgment is a jurisdictional prerequisite to an appeal. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 21.) A corollary of this rule is that an appeal from a judgment or order that is not appealable must be dismissed. (Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 771; Munoz v. Florentine Gardens (1991) 235 Cal.App.3d 1730, 1732.)
" 'Generally, no order or judgment in a civil action is appealable unless it is embraced within the list of appealable orders provided by statute.'" (Walker v. Los Angeles County Metropolitan Transportation Authority, supra, 35 Cal.4th at p. 19; see § 904.1 [listing appealable judgments and orders].) An order declaring a person to be a vexatious litigant and imposing a prefiling order is appealable. (In re Marriage of Deal (2020) 45 Cal.App.5th 613, 618-619.) Likewise, a judgment of dismissal that follows from the failure to furnish security in connection with an order declaring a person to be a vexatious litigant is appealable. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635 (Golin).)
"The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.100(a)(2); Luz v. Lopes (1960) 55 Cal.2d 54, 59.) A notice of appeal may be deemed sufficient if it is "reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced." (Luz, at p. 59; see Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 344 [a notice of appeal "may be deemed sufficient if it has not misled or prejudiced the respondent"].)
B. Analysis
Dr. Pierson's notice of appeal stated that he was appealing from the judgment entered on May 7, 2019. However, he checked four boxes on the notice of appeal form, which indicated that he was also appealing from the following: (1) a judgment after an order granting a summary judgment motion; (2) an order after judgment under section 904.1, subdivision (a)(2); (3) and order or judgment under section 904.1, subdivision (a)(3)-(13); and (4) an order granting or denying a special motion to strike under section 425.16 (i.e., an anti-SLAPP motion).
Although Dr. Pierson checked several boxes on the notice of appeal form that do not apply to his case, this is not fatal to his appeal. The notice of appeal expressly references the judgment entered on May 7, 2019. The only documents in the record filed on that date were the judgment of dismissal in favor of NCCS, and the judgment of dismissal in favor of the McIntyres and Colliers International. And the other orders and judgments referenced in the notice of appeal are plainly not at issue in this case (e.g., judgment after an order granting summary judgment) or are not separately appealable, except for the order declaring Dr. Pierson to be a vexatious litigant and imposing a prefiling order. (In re Marriage of Deal, supra, 45 Cal.App.5th at pp. 618-619 [while an order declaring a person to be a vexatious litigant is not itself appealable, such an order may be reviewed in conjunction with a prefiling order, which is an injunction appealable under section 904.1, subdivision (a)(6)].)
The record also includes a proposed order granting judgment of dismissal in favor of the McIntyres and Colliers International. However, that document, which is dated May 7, 2019, does not include a file stamp by the clerk indicating that it was filed with the trial court.
Section 904.1, subdivision (a)(2) authorizes an appeal from an order after judgment. Here, the only postjudgment order in the record is the trial court's denial of Dr. Pierson's motion for reconsideration of the vexatious litigant finding, which is not a separately appealable order. (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 927, fn. 6; see § 1008, subd. (g) ["An order denying a motion for reconsideration . . . is not separately appealable. However, if the order that was the subject of a motion for reconsideration is appealable, the denial of the motion for reconsideration is reviewable as part of an appeal from that order"].)
On this record, we conclude it was "reasonably clear" that Dr. Pierson was attempting to appeal both judgments of dismissal entered on May 7, 2019, and the order encompassed within those judgments--i.e., the order declaring Dr. Pierson to be a vexatious litigant, requiring him to furnish security, and imposing a prefiling order. We further conclude that, despite the deficiencies of the notice of appeal, the respondents were not misled or prejudiced by it. Indeed, respondents make no attempt to show prejudice. And, as pointed out by NCCS, Dr. Pierson could not obtain reversal of the vexatious litigant finding without challenging both judgments of dismissal. Under the circumstances presented, we liberally construe the notice of appeal and deem it sufficient.
We decline to dismiss the appeal, as urged by the McIntyres and Colliers International, based on Dr. Pierson's failure to timely "procure an adequate record on appeal" and seek to designate them as respondents. This argument is predicated on the record omission of the judgment of dismissal entered in favor of the McIntyres and Colliers International. As discussed ante, we issued an order augmenting the record to include that document. Further, the McIntyres and Colliers International have not developed a cogent legal argument persuading us that dismissal of the appeal is warranted on the basis of an inadequate record.
II
Vexatious Litigant Finding
Next, we consider the propriety of the trial court's vexatious litigant finding. For the reasons we shall explain, we agree with Dr. Pierson that there is insufficient evidence to support the trial court's determination that he was a vexatious litigant within the meaning of section 391, subdivision (b)(1). The evidence submitted in support of the vexatious litigant motions does not establish that Dr. Pierson had commenced, prosecuted, or maintained in propria persona at least five distinct litigations in the preceding seven years that were finally determined adversely to him.
A. Applicable Substantive Law and Standard of Review
The purpose of the vexatious litigant statutory scheme is to curb the misuse of the court system by the persistent and obsessive litigant who repeatedly files groundless actions and whose conduct causes serious financial results to the unfortunate objects of his or her attacks and not only places an unreasonable burden on the courts but also prejudices other parties waiting their turn before the courts. (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169 (Shalant); Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406 (Garcia); In re Kinney (2011) 201 Cal.App.4th 951, 957-958.) The statutory scheme "provides a 'means of moderating a vexatious litigant's tendency to engage in meritless litigation.'" (Garcia, at p. 406.)
To be declared a vexatious litigant, a party must come within one of the four definitions set forth in section 391, subdivision (b). As relevant here, section 391, subdivision (b)(1) defines a vexatious litigant as a person who "[i]n 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 (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing." The seven-year period is calculated based on the filing date of the vexatious litigant motion. (Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 224; Garcia, supra, 231 Cal.App.4th at p. 406, fn. 4.) A litigation qualifies as being within the seven-year period so long as it was filed or maintained during that period. (Stolz, at p. 225, Garcia, at p. 406, fn. 4.)
Section 391 broadly defines" '[l]itigation'" as meaning "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (§ 391, subd. (a).) "A litigation includes an appeal or civil writ proceeding filed in an appellate court." (Garcia, supra, 231 Cal.App.4th at p. 406.) However, a "litigation" does not include "every motion or other procedural step taken during an action or special proceeding." (Shalant, supra, 51 Cal.4th at pp. 1173-1174 [explaining that a person cannot be declared a vexatious litigant under section 391, subdivision (b)(1) for losing five motions in the same lawsuit during a seven-year period]; see Garcia, supra, 231 Cal.App.4th at p. 412, fn. 10 ["In the framework of the vexatious litigant law, a particular litigation is distinguishable from the various applications, motions, pleadings or other procedural steps that may be filed or taken within the context of that litigation."].)
The vexatious litigant statutes do not define the term "special proceeding."" 'The Code of Civil Procedure classifies the remedies that may be obtained in the courts.'" (People v. Board of Parole Hearings (2022) 83 Cal.App.5th 432, 445.)" 'Judicial remedies are divided into 'actions' and 'special proceedings.'" (Ibid.)" 'An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.'" (Ibid.)" 'Every other remedy is a special proceeding.' [Citation.] '[A] special proceeding is confined to the type of case which was not, under the common law or equity practice, either an action at law or a suit in equity.'" (Id. at p. 446.) "Writs of mandate and prohibition are denominated special proceedings of a civil nature." (Ibid.) Other special proceedings include punishment of contempt, contesting elections, arbitrations, enforcement of liens, and probate proceedings. (See § 23, Code Commission Notes [listing special proceedings].)
"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." (Garcia, supra, 231 Cal.App.4th at p. 406.) "A particular litigation is finally determined when avenues for direct review (appeal) have been exhausted or the time for appeal has expired." (Id. at p. 407, fn. 5.)
Qualifying litigations for purposes of the vexatious litigant law include separate appeals and writ petitions from multiple orders within the same case that are finally determined adversely to the person. (In re Marriage of Falcone &Fyke (2012) 203 Cal.App.4th 964, 1005-1007 [wife declared vexatious litigant under section 391, subdivision (b)(1) based on unsuccessful writ petitions and appeals taken from various orders in marital dissolution action].) However, not every denial of a writ petition qualifies as a litigation for purposes of the vexatious litigant law. An appellate court's summary denial of a writ petition on a pretrial issue that could also be reviewed on appeal from the judgment ultimately entered in the action does not constitute a litigation that has been finally determined adversely to the person within the meaning of section 391, subdivision (b)(1). (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1172 [explaining that, in these situations, the court does not take jurisdiction over the case and does not give the legal issue full plenary review].) By contrast, an appellate court's summary denial of a writ petition constituting the exclusive means of obtaining appellate review is properly considered a litigation that has been finally determined adversely to the person for purposes of qualifying for vexatious litigant status under section 391, subdivision (b)(1). (Fink, at p. 1172 [explaining that, in these situations," 'an appellate court must judge the petition on its procedural and substantive merits, and a summary denial of the petition is necessarily on the merits' "].)
"The [vexatious litigant] statutory scheme provides two sets of remedies. First, in pending litigation, '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.' [Citations.] If the court finds in the defendant's favor on these points, it orders the plaintiff to furnish security in an amount fixed by the court. [Citation.] Failure to provide the security is grounds for dismissal." (In re Marriage of Rifkin &Carty (2015) 234 Cal.App.4th 1339, 1345.) The second remedy" '" 'operates beyond the pending case' and authorizes a court to enter a 'prefiling order' that prohibits a vexatious litigant from filing any new litigation in propria persona without first obtaining permission from the presiding judge." '" (Ibid.)
"The trial court exercises its discretion in determining whether a person is a vexatious litigant. Review of the order is accordingly limited and the Court of Appeal will uphold the ruling if it is supported by substantial evidence. 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. [Citations.] Of course, we can only imply such findings when there is evidence to support them. When there is insufficient evidence in support of the designation, reversal is required." (Golin, supra, 190 Cal.App.4th at p. 636.)
To the extent we must determine the proper interpretation of a statutory provision, we do so independently under a de novo standard of review. (Garcia, supra, 231 Cal.App.4th at p. 408; Golin, supra, 190 Cal.App.4th at p. 636.) "[T]he objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further." (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.)
B. Additional Background
As previously indicated, in support of their respective vexatious litigant motions, the respondents submitted various court records they claimed showed that Dr. Pierson had commenced, prosecuted, or maintained in propria persona at least five litigations in the preceding seven years that were finally determined adversely to him. Each of the litigations relied on by the respondents arose out of the federal cases described ante.
NCCS argued the following seven litigations were finally determined adversely to Dr. Pierson within the meaning of section 391, subdivision (b)(1): (1) the Eleventh Circuit's decision affirming the judgment entered against Dr. Pierson in the federal action commenced in the Middle District of Florida; (2) the Eleventh Circuit's order denying Dr. Pierson's petition for rehearing; (3) the United States Supreme Court's order denying Dr. Pierson's petition for writ of certiorari regarding the Eleventh Circuit's decision; (4) the California district court's order denying Dr. Pierson's motion to vacate the order transferring the legal malpractice action to the Southern District of Florida; (5) the Ninth Circuit's order dismissing Dr. Pierson's appeal of the transfer order and the order denying his motion to vacate the transfer order; (6) the United States Supreme Court's order denying Dr. Pierson's petition for writ of certiorari regarding the transfer order; and (7) the Florida district court's (Southern District) July 2015 order dismissing the "refiled" legal malpractice action.
The McIntyres and Colliers International relied on the same litigations as NCCS except three--the Eleventh Circuit's decision affirming the judgment entered against Dr. Pierson in the federal action commenced in the Middle District of Florida, the California district court's order denying Dr. Pierson's motion to vacate the transfer order, and the Florida district court's (Southern District) July 2015 order dismissing the "refiled" legal malpractice action. Instead of these three litigations, they relied on the transfer order issued by the California district court, a postappeal judgment entered by the Florida district court (Middle District), which encompassed an order requiring Dr. Pierson to pay costs and/or attorney fees to certain defendants in the federal action commenced in Florida, and the Florida district court's (Southern District) April 2014 order striking the first amended complaint in the legal malpractice action.
Collectively, the respondents identified 10 specific litigations for the trial court's consideration in deciding whether Dr. Pierson was a vexatious litigant within the meaning of section 391, subdivision (b)(1). However, in passing, NCCS's moving and reply papers suggested that there were five postappeal judgments entered by the Florida district court (Middle District) against Dr. Pierson that also constituted qualifying litigations under the vexatious litigant law, including the postappeal judgment relied on by the McIntyres and Colliers International. These additional judgments encompassed the order(s) awarding costs and/or attorney fees to various defendants after the Eleventh Circuit issued its decision affirming the judgment against Dr. Pierson. Thus, in total, there were 14 litigations offered for the trial court's consideration.
Before addressing the propriety of the trial court's vexatious litigant finding, we briefly pause to note that our review of this issue is significantly hampered by the inadequate legal analysis offered by the parties in their briefing in the trial court and on appeal, the failure of the parties to develop an adequate record in the trial court with respect to the procedural history of the federal cases relied on to support the vexatious litigant motions, and the trial court's failure to identify the specific litigations that qualified for vexatious litigant purposes and explain why they so qualified.
Without citation to evidence in the record, Dr. Pierson's opening brief on appeal, like his joint opposition in the trial court, identifies and describes various proceedings (e.g., appeals filed with the Eleventh Circuit) that purportedly occurred in the legal malpractice action commenced in California and transferred to Florida. But he acknowledges there is no evidence in the record to substantiate his representations.
C. Analysis
1. Federal Action Commenced in Florida
We begin our analysis with the federal action commenced in the Middle District of Florida in 2008. As an initial matter, we observe that the judicially noticed court records disclose that, as to the merits, judgment was entered in the district court against Dr. Pierson in 2010, well beyond the applicable seven-year period under section 391, subdivision (b)(1). The court records also disclose that Dr. Pierson was represented by counsel during the trial court proceedings and on appeal. And nothing in the record establishes that Dr. Pierson commenced, prosecuted, or maintained this action in propria persona at any time before the Eleventh Circuit issued its decision affirming the judgment entered against Dr. Pierson. Thus, neither the judgment entered by the district court in 2010 against Dr. Pierson nor the decision issued by the Eleventh Circuit in January 2012 affirming that judgment constitute a qualifying litigation under section 391, subdivision (b)(1).
We recognize that respondents did not argue in the trial court that the judgment entered by the Florida district court against Dr. Pierson constituted a qualifying litigation for purposes of section 391, subdivision (b)(1). We provide this background information for context.
The McIntyres and Colliers International speculate that the trial court could have reasonably concluded that Dr. Pierson had pursued his appeal with the Eleventh Circuit as a self-represented litigant. In support of this theory, they argue that the trial court could have reached this conclusion by finding that Dr. Pierson had "ghostwritten" certain papers and merely affixed an attorney's name to those documents. We are unpersuaded. This specific argument was not raised in the trial court, and nothing in the record, including the trial court's order declaring Dr. Pierson to be a vexatious litigant, supports this theory.
Likewise, we conclude that none of the five separate judgments entered against Dr. Pierson after the Eleventh Circuit issued its decision constitute a qualifying litigation under section 391, subdivision (b)(1). Each of these postappeal judgments, which were issued by the Florida district court in April, May, July, and October 2012, encompassed an order granting a motion for costs and/or attorney fees. On appeal, respondents do not point to anything in the record showing that Dr. Pierson was acting in propria persona during these proceedings. And even if we were to assume that he was acting in such a capacity, our Supreme Court has held that a "litigation" under section 391, subdivision (b)(1) does not include "every motion or other procedural step taken during an action or special proceeding." (Shalant, supra, 51 Cal.4th at p. 1173.)
In Shalant, the high court explained that, reading the vexatious litigant statutes as a collective whole, the term "litigation" in section 391, subdivision (a) cannot be construed to include every motion or other procedural step taken during an action or special proceeding because applying such a definition throughout the vexatious litigant statutes would result in several provisions taking on "absurd, unworkable, or clearly unintended meanings." (Shalant, supra, 51 Cal.4th at p. 1174, id. at p. 1173.) By way of example and of relevance here, the Shalant court observed: "Under section 391, subdivision (b)(1), a person could be declared a vexatious litigant for losing five motions-all of which might have been filed in the same lawsuit-in a seven-year period. Section 391, subdivision (b)(3)'s reference to 'motions, pleadings, or other papers' filed in the course of a litigation would make little sense if every motion, pleading, or paper filed was itself a new litigation." (Shalant, at p. 1174; see § 391, subd. (b)(3) [defining a vexatious litigant as a person who does the following: "In 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"].) For their part, respondents have not directed us to any authority supporting the conclusion that a postappeal order by the trial court awarding costs and/or attorney fees to a defendant in the same underlying case (which is later incorporated into a separate judgment) constitutes a final determination of a distinct litigation within the meaning of section 391, subdivision (b)(1). And we decline to reach such a conclusion, as it would be inconsistent with Shalant.
The Shalant court rejected as "unworkable" the argument that, because "litigation" is defined, for purposes of the vexatious litigant statutes, as "any civil action or proceeding" (§ 391, subd. (a)) and the term "proceeding" can, in some circumstances, refer to a procedural step that is part of a larger action, a vexatious litigant who is barred by a prefiling order from "filing any new litigation" in propria persona (§ 391.7, subd. (a)), and who becomes self-represented while an action is pending, cannot take any further procedural steps in the action without first obtaining permission from the presiding judge. (Shalant, supra, 51 Cal.4th at pp. 1173-1175.)
Finally, while Dr. Pierson concedes that he filed, in propria persona, the petition for rehearing denied by the Eleventh Circuit, respondents have not cited, and we are not aware of, any authority holding that the denial of such a petition qualifies as a distinct litigation that was finally determined adversely to Dr. Pierson within the meaning of section 391, subdivision (b)(1). In our view, it does not constitute a qualifying litigation. Although the term "litigation" is broadly defined under the vexatious litigant law, a petition for rehearing is not a civil action or a special proceeding within the meaning of the vexatious litigant law. (See § 23, Code Commission Notes [listing special proceedings].) Nor is it an appeal or writ proceeding filed in an appellate court. (See Garcia, supra, 231 Cal.App.4th at p. 406 [a litigation for purposes of the vexatious litigant law includes an appeal or civil writ proceeding filed in an appellate court].) And, as we have explained, the term "litigation" does not include every procedural step taken during an action. (Shalant, supra, 51 Cal.4th at pp. 1173-1174.)
We need not and do not decide whether, under the circumstances of this case, the United States Supreme Court's denial of Dr. Pierson's petition for writ of certiorari constitutes a distinct qualifying litigation within the meaning of section 391, subdivision (b)(1). Even if we were to assume that it does, respondents failed to identify four additional qualifying litigations, as we next explain.
2. Federal Action Commenced in California
Turning to the related federal legal malpractice action commenced in the Eastern District of California in 2014, we initially observe that respondents have not pointed to any authority supporting the conclusion that the California district court's sua sponte order transferring the matter to the Southern District of Florida or any of the subsequent orders related to the transfer order qualify as a distinct litigation that was finally determined adversely to Dr. Pierson within the meaning of section 391, subdivision (b)(1). For the reasons that follow, we conclude that neither the transfer order nor the denial of the motion to vacate that order is properly considered a qualifying litigation for purposes of the vexatious litigant law. We reach the same conclusion regarding the Ninth Circuit's dismissal of Dr. Pierson's appeal challenging those orders and the United States Supreme Court's denial of Dr. Pierson's petition for writ of certiorari.
A transfer order is an interlocutory order that is not appealable prior to a final judgment, although a party may seek review of a transfer order by way of a writ of mandamus. (Pacific Car &Foundry Co. v. Pence (9th Cir. 1968) 403 F.2d 949, 951952; see NBS Imaging Systems, Inc. v. United States District Court for the Eastern District of California (9th Cir. 1998) 841 F.2d 297, 298 ["[w]e have long held that in extraordinary circumstances involving a grave miscarriage of justice, we have power via mandamus to review an order transferring a case to a district court in another circuit"].) Under California law, the summary denial of a writ petition that is not the exclusive means of obtaining appellate review of a pretrial ruling does not qualify as a litigation finally determined adversely to a party within the meaning of section 391, subdivision (b)(1). (See Fink v. Shemtov, supra, 180 Cal.App.4th at pp. 1172-1173 [distinguishing writ petitions challenging pretrial orders that could also be reviewed on appeal from the judgment ultimately entered in the action from situations in which a writ petition was the only authorized mode of appellate review].) Here, although it could have, the Ninth Circuit did not treat Dr. Pierson's notice of appeal as a mandamus petition and review the merits of the transfer order. (See Special Investments, Inc. v. Aero Air, Inc. (9th Cir. 2004) 360 F.3d 989, 993 [" 'a notice of appeal from an otherwise nonappealable order can be considered as a mandamus petition' "].) Instead, the Ninth Circuit dismissed Dr. Pierson's appeal for lack of subject matter jurisdiction because the transfer order and the order denying the motion to vacate that order were not final or directly appealable, citing Nascimento v. Dummer (9th Cir. 2007) 508 F.3d 905, 908 [transfer order not directly appealable]; Branson v. City of Los Angeles (9th Cir. 1990) 912 F.2d 334, 336 [denial of reconsideration of non-appealable order is itself not appealable]; In re San Vincente Med. Partners, Ltd. (9th Cir. 1989) 865 F.2d 1128, 1131 [magistrate judge order not final or appealable]. Thereafter, the United States Supreme Court denied Dr. Pierson's petition for writ of certiorari, which does not constitute an expression of an opinion on the merits of the transfer order. (Teague v. Lane (1989) 489 U.S. 288, 296 [" 'denial of a writ of certiorari imports no expression of opinion upon the merits of the case' "].) In short, neither the transfer order nor any of the subsequent orders related to that order qualify as a distinct litigation within the meaning of section 391, subdivision (b)(1). None of the orders constitute a "final" adverse determination of the transfer issue.
Transfer orders are reviewable only in the circuit of the transferor district court. (Posnanski v. Gibney (9th Cir. 2005) 421 F.3d 977, 980.) However, a party is not without any recourse when an action is transferred to a district court in another circuit. Under those circumstances, the party "may move in the transferee court to retransfer the action to the transferor court and the denial of that motion is reviewable in the transferee circuit." (Id. at pp. 980-981 [noting that "[s]uch review may even be had via a petition for a writ of mandamus in certain circumstances"].) The record does not disclose whether Dr. Pierson sought such relief in the Florida district court.
We need not and do not decide whether either of the orders issued by the Florida district court (Southern District) dismissing the legal malpractice action constitute a distinct qualifying litigation within the meaning of section 391, subdivision (b)(1). Even if we were to assume that they do, respondents failed to identify five qualifying litigations.
3. Conclusion
We conclude that substantial evidence does not support the trial court's determination that "in the immediately preceding seven-year period" Dr. Pierson "commenced, prosecuted, or maintained in propria persona at least five litigations . . . finally determined adversely" to him. (§ 391, subd. (b)(1).) Therefore, the court committed reversible error when it determined that he was a vexatious litigant under that provision, and also erred when it ordered further relief under the vexatious litigant statutes--i.e., the prefiling order (§ 391.7, subd. (a)), and the requirement that Dr. Pierson furnish security to avoid dismissal (§ 391.3, subd. (a))--since that relief was based on his classification as a vexatious litigant. Finally, because the judgments of dismissal were premised upon Dr. Pierson's failure to furnish the court-ordered security in connection with the vexatious litigant determination (§ 391.4), they too must be reversed.
We reject Dr. Pierson's undeveloped argument that "severe" sanctions should be imposed against respondents for filing vexatious litigant motions.
Given the conclusions we have reached in this opinion, we need not and do not consider any of the other issues raised on appeal.
DISPOSITION
The judgments of dismissal, which encompass the order declaring Dr. Pierson to be a vexatious litigant (§ 391, subd. (b)(1)), requiring him to furnish security to avoid dismissal of his cross-complaint (§ 391.3, subd. (a)), and imposing a prefiling order (§ 391.7, subd. (a)), are reversed. Dr. Pierson shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
We concur: Mauro, Acting P. J., McAdam, J. [*]
[*] Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.