Opinion
F072989
12-20-2016
ALVIN R. ROSS, Plaintiff and Appellant, v. E. CASTRO et al., Defendants and Respondents.
Alvin R. Ross, in pro. per., for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney General, Thomas S. Patterson and Tyler V. Heath, Deputy Attorneys General, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kings Super. Ct. No. 13C0086)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Judge. Alvin R. Ross, in pro. per., for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney General, Thomas S. Patterson and Tyler V. Heath, Deputy Attorneys General, for Defendants and Respondents.
Before Franson, Acting P.J., Peña, J. and Smith, J.
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Appellant Alvin R. Ross, an inmate serving life without parole at California State Prison—Solano, filed a civil lawsuit against prison officials. In response, the officials filed a motion to declare Ross a vexatious litigant and to require security under provisions of California's vexatious litigant statute (Code Civ. Proc., §§ 391-391.8). The trial court granted the motion and, after Ross failed to post $8,330 in security, dismissed the lawsuit.
All unlabeled statutory references are to the Code of Civil Procedure.
On appeal, Ross contends the trial court erred in finding him a vexatious litigant. Ross argues that the previously litigated cases alleged by defendants were not supported by evidence and therefore cannot reasonably sustain the finding. Ross also challenges the trial court's determination that he failed to show a reasonable probability of prevailing on the merits of a claim.
We conclude that Ross's designation of the appellate record was inadequate for this court to properly evaluate the grounds raised in his appellate briefs. The record designated contains the judgment of dismissal, the notice of entry of the judgment, Ross's notice of appeal, his notice designating record on appeal, and the register of actions (i.e., the docket). His designation omits his complaint, the defendants' motion and supporting documents, his motion for reconsideration, and the order issued by the trial court. Based on the inadequate record, we conclude Ross has failed to carry his burden of affirmatively demonstrating prejudicial error.
We therefore affirm the judgment of dismissal.
FACTS AND PROCEEDINGS
In February 2013, Ross filed a complaint naming six prison officials as defendants—E. Castro; J. Cavazos; F.P. Fields, Associate Warden; J. Gonzales, Sergeant; J.A. Keener, Lieutenant; and T.A. Variz. Ross alleged a violation of his First Amendment rights, intentional tort and general negligence.
On June 19, 2015, the defendants remaining in the case (Castro, Gonzales and Keener) filed a motion to declare Ross a vexatious litigant with a request that Ross be directed to post security. On July 10, 2015, the trial court issued an order directing the telephonic appearance of Ross at the July 17, 2015, hearing on the motion. Ross did not appear at the hearing. The trial court continued the hearing to August 7, 2015, and ordered the clerk to inform CourtCall of the next hearing. Consequently, the motion to declare Ross a vexatious litigant was heard on August 7, 2015, and both Ross and defense counsel appeared.
On August 28, 2015, the trial court entered an order granting defendants' motion to declare Ross a vexatious litigant. The court ordered Ross to post $8,330 in security within 30 days as a condition to continuing the lawsuit. After the deadline to post security had passed without compliance, the court entered a judgment of dismissal pursuant to section 391.4.
In November 2015, notice of entry of judgment was filed and served. In December 2015, Ross filed a notice of appeal from the judgment of dismissal. In January 2016, Ross filed a notice designating record on appeal using Judicial Council of California form APP-003 (rev. Jan. 1, 2007). Ross checked the box for a clerk's transcript only (i.e., no reporter's transcript) and, in designating the documents to be included in the clerk's transcript, relied on the seven preprinted items set forth on the form. Ross did not add any documents to the list and, as a result, his complaint, defendants' motion, any opposition to the motion and his motion to reconsider were not included in the clerk's transcript.
In February 2016, this court stayed the appeal and directed Ross to request a prefiling order. Ross provided this court with a request for permission to pursue the appeal, which this court granted.
DISCUSSION
I. OVERVIEW OF RULES GOVERNING APPELLATE PRACTICE
A. Self-Representing Inmates
1. Ross's Contentions
Ross's opening brief acknowledges that he made some errors during this proceeding and states that he had never litigated a civil matter in state court and had acted on what others had told him. Ross's opening brief also states that the trial court denied his request for the appointment of counsel. Based on these circumstances, Ross contends that the trial court should have disregarded his errors pursuant to Penal Code sections 1258 or 1404.
Ross's reply brief contends that the trial court erred by holding him, a self-representing inmate, to the stringent standards applied to attorneys. He cites Akhtar v. Mesa (9th Cir. 2012) 698 F.3d 1202, 1212, and argues: "The trial court has an obligation where the Plaintiff is a pro se, particularly in Civil Rights cases, to construe the pleadings/filings liberally and to afford the Plaintiff the benefit of any doubt." Ross relies on section 475, which states in part: "The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties." (Italics added.)
2. Federal Standards for Inmate Pleadings
First, we consider Ross's argument that federal cases establish that self-representing inmates are not required to perform to the same standards as practicing attorneys. We conclude the federal precedent relating to inmates attempting to plead civil rights causes of action does not apply to a determination that a plaintiff is a vexatious litigant under California statute.
In Haines v. Kerner (1972) 404 U.S. 519 (Haines), a unanimous United States Supreme Court stated that a civil rights action brought under title 42 United States Code section 1983 by an inmate who did not have access to counsel is scrutinized under a less stringent standard than pleadings drafted by lawyers. (Haines, supra, at p. 520.) The United States Supreme Court subsequently reaffirmed the principles established in Haines. (Hughes v. Rowe (1980) 449 U.S. 5, 10, fn. 7.)
The principles established in Haines, however, do not extend to all self-representing litigants or to all procedural aspects of litigation filed by an inmate. For instance, in a case that did not involve a prisoner, the United States Supreme Court clarified the scope of the Haines decision by stating that it had "never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel." (McNeil v. United States (1993) 508 U.S. 106, 113.)
We construe the federal precedent discussing the lenient treatment of self-representing inmates as applying to challenges to their attempts to plead facts adequate to allege a civil rights violation. The federal cases do not establish a broad principle of leniency that applies to every procedural step of a civil case pursued by a self-representing inmate.
3. Penal Code Provisions
Ross contends the trial court did not follow Penal Code sections 1258 and 1404. Penal Code section 1258 states: "After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties." Penal Code section 1404 states: "Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right."
These provisions in the Penal Code apply to procedural questions raised in criminal cases. They do not apply to the questions of civil procedure. Consequently, they do not apply in the present appeal.
4. Section 475
Ross's contention that the trial court violated section 475 is general and does not identify a specific error or defect that Ross contends the trial court should have overlooked. Consequently, it is not possible for us to evaluate whether the trial court failed to properly apply section 475 to one of Ross's procedural errors.
In addition, we note that Ross's description of section 475 omitted the words that are italicized in the following quote of that statute's first sentence: "The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties." (Italics added.) Here, Ross had not shown that the terms of section 475 apply because he has not shown that, in the opinion of the trial court, an error or defect in his proceedings did not affect a substantial right of the defendants. Thus, Ross did not establish the statutory prerequisite for overlooking an error or defect.
In summary, Ross has not demonstrated the trial court erred by failing to disregard an error or defect in accordance with the first sentence of section 475.
5. Standards Applicable in Trial Court
At the trial court level, self-representing litigants are subject to the standards generally applied by California courts in civil litigation. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284-1285 [self-representing litigants are not exempt from statutes or court rules governing procedure].) Based on this principle, we conclude that the motion to declare Ross a vexatious litigant and the proceedings in the trial court related to that motion are governed by the usual rules of civil litigation and Ross is not excused from complying with those standards because he is a self-representing inmate. Stated another way, we reject Ross's argument that the trial court should have applied more lenient standards to him and the papers he filed with the court.
6. Standards Applicable in Appellate Court
The last step in our discussion of the standards that apply to a self-representing litigant address the standards this court applies to inmates who represent themselves on appeal. As a general rule, when the appeal raises questions other than whether the inmate has stated a cause of action for a civil rights violation, a self-representing inmate is treated like any other party and, therefore, is subject to the same rules of appellate procedure as parties represented by an attorney. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [appellant representing self on appeal must follow correct rules of procedure].) Pursuant to this general rule, we apply the usual rules of appellate procedure relating to (1) the contents of the appellate record and (2) the appellant's burden to affirmatively demonstrate error.
B. Rules of Appellate Review
1. Principles of Appellate Practice
The most basic rule of appellate review is that appellate courts presume the trial court's order is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) To prevail, an appellant must overcome this presumption by affirmatively demonstrating prejudicial error. (Ibid.) The requirement for a showing of prejudicial error is constitutional. (See Cal. Const., art. VI, § 13 [miscarriage of justice].) In addition, the requirement is reiterated in the second sentence of section 475: "No judgment ... shall be reversed or affected by reason of any error ... or defect, unless it shall appear from the record that such error ... or defect was prejudicial, and also ... that a different result would have been probable if such error ... or defect had not occurred or existed."
2. Appellate Record Adequate to Show Error
An appellant cannot carry his burden of demonstrating a prejudicial error if he does not provide the appellate court with an adequate record of the lower court's proceedings. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 (Ballard).) An adequate record is essential to our evaluation of whether the trial court abused its discretion or otherwise committed error. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.) For example, in Ballard, the plaintiff failed to include a reporter's transcript of the portion of the trial relating to the issue of damages. The court stated that because of the absence of a transcript or settled statement regarding that portion of the trial it had no way of ascertaining whether the alleged juror misconduct or instructional error affected the damages awarded in the case. (Ballard, supra, 41 Cal.3d at p. 574.) As a result, the court concluded the plaintiff failed to provide an adequate record and therefore failed to carry the burden of showing prejudicial error. (Ibid.; see Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121 [appeal rejected for failure to provide a reporter's transcript of important proceedings].) In other words, "if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.) II. OVERVIEW OF CALIFORNIA'S VEXATIOUS LITIGANT LAW
A. Statutory Purpose
California's vexatious litigant statute is contained in sections 391 through 391.8. The statute was enacted to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits or attempt to relitigate issues previously determined against them. (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169 [the statutes protect courts and litigants from such misuse by "persistent and obsessive" in propria persona litigants].) The abuse of the system by such individuals "not only wastes court time and resources but also prejudices other parties waiting their turn before the courts. [Citations.]" (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008.) The statute provides a "means of moderating a vexatious litigant's tendency to engage in meritless litigation." (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 221.)
B. Definition of a "Vexatious Litigant"
A person is a "vexatious litigant" for purposes of California's statute if in "the immediately preceding seven-year period has commenced," that person "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 ...." (§ 391, subd. (b)(1).) The seven-year period is measured as of the time the motion is filed. (Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 224.)
"Litigation" is defined broadly as "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (§ 391, subd. (a).) Consequently, a "litigation" includes an appeal or civil writ proceeding filed in an appellate court. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216, disapproved on another ground in John v. Superior Court (2016) 63 Cal.4th 91, 99, fn. 2.) A litigation is "determined adversely" for purposes of the statute if the plaintiff 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; In re Whitaker (1992) 6 Cal.App.4th 54, 56.) An action is "finally determined" for purposes of the statute when avenues for direct review by appeal have been exhausted or the time for appeal has expired. (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 994.)
Where a plaintiff challenges multiple orders from the same case by filing separate appeals and writs, each appeal or writ that is finally determined adversely to the plaintiff may qualify. (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 1005-1006 [qualifying litigation included summary denials of writ petitions, a dismissal of an appeal from a nonappealable order, a dismissal of an appeal for failure to file opening brief, and appeals rejected on merits].) A litigation does not include a federal district court's denial of an application to proceed in forma pauperis, even if a proposed complaint was lodged with the application. (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 412-413 [reversing trial court's orders under vexatious litigant law and the judgment of dismissal].) --------
C. Procedural Mechanism
A motion is the procedural mechanism for raising the question of whether a person qualifies as a vexatious litigant. For example, the defendants in an action may file a motion for order directing the litigant to furnish security. 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 or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall 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 or she will prevail in the litigation against the moving defendant."
Section 391.3, subdivision (a), sets forth the basis for granting the motion: "[I]f, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court 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." (Italics added.) If security is ordered by the court, and is not furnished by the plaintiff, "the litigation shall be dismissed as to the defendant for whose benefit [the security] was ordered furnished." (§ 391.4.)
Another constraint that can be placed on a vexatious litigant is a "prefiling order" that "prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court." (§ 391.7, subd. (a).)
D. Standard of Review
A trial court's determination that a person is a vexatious litigant will be upheld "if it is supported by substantial evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment. [Citation.]" (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.)
A trial court's decision that a vexatious litigant does not have a reasonable probability of success is based on an evaluation involving the weighing of evidence. (Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 785-786.) If there is substantial evidence to support a trial court's determination that a vexatious litigant had no reasonable probability of prevailing in the action, it will be upheld. (Id. at pp. 784-786.) III. EVALUATION OF ROSS'S CLAIMS OF ERROR
A. Counting Lawsuits
1. Background Information
We note that Ross has lost a number of federal appeals, including Ross v. Latraille (9th Cir. 2016) 632 Fed.Appx. 415 (affirmed summary judgment on First Amendment retaliation claim arising out of Ross's removal from work assignment); Ross v. Schwarzenegger (9th Cir. 2013) 536 Fed.Appx. 689 (affirmed dismissal of 42 U.S.C. § 1983 claim); Ross v. McGuinness (9th Cir. 2012) 471 Fed.Appx. 608 (affirmed summary judgment on Eighth Amendment claim of deliberate indifference to serious medical needs); Ross v. Tilton (9th Cir. 2011) 420 Fed.Appx. 723 (affirmed order denying reconsideration of dismissal of 42 U.S.C. § 1983 claim alleging violation of equal protection and due process rights); Ross v. Alameida (9th Cir. 2007) 217 Fed.Appx. 723 (affirmed dismissal of Ross's 28 U.S.C. § 2254 petition); Ross v. McCoy (9th Cir. 2006) 201 Fed.Appx. 484 (affirmed dismissal for failure to exhaust administrative remedies); Ross v. Olivarez (9th Cir. 2004) 88 Fed.Appx. 233 (affirmed summary judgment in action alleging constitutional violations from denial of application to marry); Ross v. McCoy (9th Cir. 2003) 62 Fed.Appx. 198 (affirmed dismissal of Ross's First Amendment retaliation and due process claims relating to access to prison canteen).) We also note that more than seven years before defendant's motion, this court affirmed a judgment denying Ross's petition for writ of mandate that sought to compel the department to credit $737 to his trust account. (Ross v. Department of Corrections and Rehabilitation (Nov. 20, 2007, F051996) [nonpub. opn.].)
The foregoing information is not of "substantial consequence to the determination of the action" as that phrase is used in of Evidence Code section 459 and, therefore, we have not requested input from the parties on the propriety and tenor of this court taking judicial notice of those decisions. (See Evid. Code, § 455 [opportunity to present information to court relating to matter judicially noticed].) In other words, the information about Ross's federal appeals and litigation before this court are provided solely as background due to scanty appellate record and that information has not influenced the analysis or the outcome of this appeal.
2. Legally Erroneous Standard
One way an appellant can affirmatively demonstrate an abuse of discretion is to show that the trial court applied the wrong legal standard. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) A trial court's decision that rests on an error of law is an abuse of discretion. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1361.)
Here, Ross contends that defendants failed to demonstrate that he filed multiple frivolous, harassing or malicious litigation anywhere. In response, defendants contend Ross incorrectly argues cases count only if frivolous, malicious or dismissed for failing to state a claim—criteria not stated in section 391, subdivision (b)(1). Defendants argue that Ross apparently relied on provisions of the Prison Litigation Reform Act of 1995 (PLRA; 42 U.S.C. § 1997e et seq.), which does not apply to their motion under California's vexatious litigant statute.
The phrase "frivolous, malicious, fails to state a claim upon which relief can be granted" appears in provisions of the PLRA addressing the dismissal of suits brought by prisoners. (42 U.S.C. § 1997e(c)(1) & (c)(2).) It does not appear in the definition of "vexatious litigant" set forth in section 391, subdivision (b)(1) or anywhere else in California's vexatious litigant law. Consequently, we conclude that Ross has failed to demonstrate the trial court erred by applying the wrong legal standard when it counted cases in determining whether he was a vexatious litigant.
3. Evidentiary Support
Ross contends that he "has initially filed approximately three (3) civil cases within a five (5) year period," one of which is the instant matter. He also contends that "Defendant's only claim in alleging [him] to be a vexatious litigant is the assertion of eleven (11) civil filings in a seven (7) year period in violation of CCP Section §391(b)(1)."
We are unable to determine whether sufficient evidentiary support exists for the trial court's finding that Ross had filed the number of unsuccessful lawsuits required to meet the definition of a vexatious litigant under California law. None of the evidence presented to the trial court was included in the appellate record. Therefore, we are compelled by the rules of law applicable to appellate practice to conclude that Ross has failed to affirmatively demonstrate the evidence was insufficient to support the trial court's findings. (See Ballard, supra, 41 Cal.3d at p. 574 [plaintiff failed to provide an adequate record to demonstrate trial court error].)
B. Probability of Success on the Merits
Ross also contends there is a reasonable likelihood that he will prevail on the merits of this case. Again, we are unable to evaluate the likelihood Ross will prevail because he failed to provide an adequate record showing what his claims are and the evidence he has to support them. Therefore, we must conclude that Ross has not affirmatively demonstrated the trial court erred when it determined there was no reasonable probability that he would prevail on the claims brought against the moving defendants.
DISPOSITION
The judgment of dismissal is affirmed.