Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of San Diego County No. GIC879806, Yuri Hofmann, Judge.
AARON, J.
I.
INTRODUCTION
Acting in propria persona, inmate Jimmie Stephen filed a complaint that appears to allege seven causes of action against Sgt. Pittman and several other prison officials regarding events that Stephen claims occurred during his incarceration. Defendants filed a motion to declare Stephen a vexatious litigant pursuant to Code of Civil Procedure section 391, subdivision (b)(1) on the ground that Stephen had prosecuted at least five litigations in the prior seven years that were finally determined in a manner adverse to him. Defendants also requested that the court order Stephen to post security in the amount of $10,000, pursuant to section 391.3, arguing that there was no reasonable probability that Stephen would prevail on the merits of his claims. In July 2007, the trial court declared Stephen a vexatious litigant, found that that there was no reasonable probability that he would prevail in the litigation, and ordered him to post $10,000 in security within 30 days, or face dismissal of the action. Upon Stephen's failure to post the required security, the trial court dismissed the action.
Sgt. Pittman's first name is not contained in Stephen's complaint.
Unless other specified, all subsequent statutory references are to the Code of Civil Procedure.
On appeal, Stephen appears to claim that the trial court erred in finding him to be a vexatious litigant, contending that several of the cases that he previously prosecuted were improperly decided. Stephen also claims that the trial court erred in ordering him to post security pursuant to section 391.3. Stephen argues that he has a reasonable probability of prevailing on causes of action that he alleged in an amended complaint that he filed on the same day that the defendants filed their vexatious litigant motion.
We affirm the trial court's July 2007 order declaring Stephen to be a vexatious litigant and requiring him to post security, and also affirm the court's subsequent judgment dismissing the action.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2007, Stephen filed a complaint against the defendants alleging two counts of negligence, two counts of intentional tort, and one count of breach of contract. Stephen's complaint also appears to allege two claims based on purported violations of his federal constitutional rights. Although the complaint is difficult to understand, it appears that most of the causes of action stem from allegations that the defendants acted improperly in selecting Stephen's cellmates during his incarceration.
On April 20, 2007, defendants filed a motion to declare Stephen a vexatious litigant pursuant to section 391, subdivision (b)(1). In their brief in support of their motion, defendants argued that at least five actions had been determined adversely to Stephen in the prior seven years. Defendants filed a request for judicial notice of the court records documenting Stephen's litigation history and requested that the court enter a prefiling order pursuant to section 391.7 to prohibit Stephen from filing new litigation without leave of court. Defendants also requested that the trial court order Stephen to post security in the amount of $10,000 pursuant to section 391.1 on the ground that there was no reasonable probability that Stephen would prevail on the merits of the claims he alleged in his initial complaint. That same day, Stephen filed a first amended complaint, in which he named numerous new defendants and alleged several new causes of action.
On May 16, 2007, Stephen filed a pleading captioned, "Demurrer to Defendants Petition. . . ." On July 12, 2007, the trial court issued a tentative ruling granting defendants' request for judicial notice and finding Stephen to be a vexatious litigant. The court also found that there was no reasonable probability that Stephen would prevail in the litigation, and ordered Stephen to post security in the amount of $10,000 within 30 days, or face dismissal of the action. In addition, the court stated that it would enter a prefiling order precluding Stephen from filing new litigation without obtaining leave of court, pursuant to section 391.7, subdivision (a). The tentative ruling indicated that the motion was unopposed.
The following day, the trial court held a hearing on the defendants' vexatious litigant motion. The trial judge asked Stephen, who was appearing telephonically, whether he had anything to say with respect to the defendants' motion. Stephen indicated that it was his understanding that the hearing on the motion had been postponed until September. Defense counsel explained to the court that Stephen had filed a response to the motion, which Stephen had styled as a demurrer. That pleading had been calendared as a separate motion for a hearing in September. Stephen clarified to the court that he intended that his demurrer would serve as a response to the defendants' motion. The trial court asked Stephen whether he wanted to provide oral argument on the defendants' motion. Stephen declined. The trial court stated that it would take the matter under submission and that the court would review Stephen's opposition.
That same day, July 13, the trial court issued a written minute order in which the court adopted its tentative ruling. A few days later, the court entered a prefiling order pursuant to section 391.7, subdivision (a). On August 23, 2007, the trial court dismissed the action on the ground that Stephen had failed to post the security required by the July 13 order. Stephen appeals from the August 23 judgment, challenging the trial court's July 13 order and the August 23 dismissal of his action.
III.
DISCUSSION
A. Stephen has failed to establish that the trial court erred in finding him to be a vexatious litigant
Section 391 provides in relevant part:
"(b) 'Vexatious litigant' means a person who does any of the following:
"(1) In 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 . . . ."
In Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219, the court outlined the law governing review of a trial court's determination that a person is a vexatious litigant:
"A court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] We uphold the court's ruling 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.]"
Although Stephen does not directly claim that the trial court erred in finding that he falls within the definition of a vexatious litigant provided in section 391, subdivision (b)(1) as outlined above, he contends that courts improperly dismissed several of his prior actions. Even assuming, strictly for the sake of argument, that it is procedurally proper for a person opposing a vexatious litigant determination to relitigate the merits of previously dismissed cases, Stephen identifies nothing in the record demonstrating that any of the prior actions were dismissed improperly. Accordingly, we reject Stephen's suggestion that the trial court erred in finding him to be a vexatious litigant on the ground that cases previously decided adversely to Stephen were improperly dismissed.
Citing Roston v. Edwards (1982) 127 Cal.App.3d 842, 845, Stephen also claims that "litigation" for purposes of section 391 does not include proceedings in federal courts. Roston was legislatively superseded in 1990 by an amendment to section 391. (Stats. 1990, ch. 621, § 1.) Section 391, subdivision (a) now expressly provides, "'Litigation' means any civil action or proceeding, commenced, maintained or pending in any state or federal court." (Italics added.)
Stephen further claims that the trial court's "'refusal to hear' [his] opposition" to the defendants' motion to declare him a vexatious litigant renders both the July 13, 2007 order as well as the August 23, 2007 judgment invalid. This contention appears to be based on the fact that in adopting its tentative order on the defendants' motion, the trial court indicated that the motion was unopposed. However, the trial court's oral remarks at the hearing on the defendants' motion unequivocally demonstrate that the trial court understood that Stephen had filed an opposition to the defendants' motion. Further, the court stated at the hearing that it would review Stephen's opposition to the motion before ruling on it. Thus, Stephen was not prejudiced by the trial court's erroneous statement in its written order that the defendants' motion was unopposed.
It appears from the record that the trial court stated in its tentative ruling that the defendants' motion was unopposed because Stephen improperly captioned his opposition to the motion as a "demurrer." In adopting its tentative ruling as a final ruling, the trial court failed to delete its statement that the motion was unopposed.
B. Stephen has failed to demonstrate that the trial court erred in determining that there is not a reasonable probability that Stephen will prevail in the litigation
Section 391.1 provides:
"In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security. The motion must be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the moving defendant."
Section 391.3 provides:
"If, 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."
Section 391.4 provides, "When security that has been ordered furnished is not furnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished."
In the trial court, the defendants' motion to require a posting of security pursuant to section 391.3 was based entirely on their contention that Stephen had no reasonable probability of prevailing on the claims that he alleged in his initial complaint. On appeal, in his opening brief, in a section entitled "'Errors' 'Questions,'" Stephen states, "1. Does 'Amended Complaint' of 4-20-07 'show' 'reasonable probability of prevailing' on 'claims'?? [¶] A. If so, [d]oes it render [vexatious litigant] motion of 7-13-07 'moot' . . . ??" However, Stephen presents no argument or authority regarding whether his filing of an amended complaint mooted the defendants' vexatious litigant motion premised on his initial complaint. Therefore, we need not consider whether it was improper for the trial court to grant the defendants' motion, which was premised entirely on the initial complaint, on the ground that the initial complaint had been superseded by Stephen's filing of the amended complaint. (See, e.g, Krain v. Medical Board (1999) 71 Cal.App.4th 1416, 1426 [declining to consider issues raised by appellant where brief made only "'passing reference' to these issues without adequate argument or citation to authority"].)
Stephen's brief does address the distinct issue of whether he has a reasonable probability of prevailing on claims alleged in the amended complaint. However, as noted above, the defendants' motion was based entirely on the initialcomplaint; the amended complaint differs from the initial complaint in significant respects. For example, the amended complaint names numerous additional defendants and contains wholly distinct causes of action based on facts not referenced in the initial complaint. Because Stephen has not presented argument or authority that the amended complaint was the operative complaint for purposes of the defendants' vexatious litigant motion, we need not consider whether he has a reasonable probability of prevailing on the claims alleged in the amended complaint.
Accordingly, we conclude that Stephen has failed to demonstrate that the trial court erred in determining that he lacked a reasonable probability of prevailing in the litigation.
IV.
DISPOSITION
The July 13, 2007 order and the August 23, 2007 judgment are affirmed.
WE CONCUR, NARES, Acting P. J., McDONALD, J.