Opinion
A149228
11-21-2017
VAN SMITH, Plaintiff and Appellant, v. COUNTY OF ALAMEDA 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG16813085)
Plaintiff Van Smith sued the County of Alameda (County) and an assistant county clerk-recorder, Matthew Yankee (collectively, defendants), for allegedly submitting a false instrument—a recorded deed of trust—that allowed the County to prevail in prior litigation. On appeal, Smith challenges (1) an order granting defendants' motion to declare Smith a vexatious litigant and (2) an order granting their special motion to strike Smith's complaint pursuant to Code of Civil Procedure section 425.16 as a strategic lawsuit against public participation (anti-SLAPP motion). We shall affirm the challenged orders.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Since 2013, Smith has filed 17 lawsuits against the County and others concerning a trustee's deed upon sale involving real property that was sold in a foreclosure sale. As we recounted in our earlier decision in Smith v. County of Alameda, the property at issue "was formerly owned by the Jerlyn L. Smith Trust but was sold in a foreclosure sale at a public auction in November 2012. This turn of events has prompted Smith to file multiple legal actions against the County challenging the recordation of the deed in an apparent attempt to undo the effect of the foreclosure sale." (Smith v. County of Alameda (March 30, 2015, A142436 [nonpub. opn.].)
Defendants relied in part upon our prior opinion in their anti-SLAPP motion and their motion to declare Smith a vexatious litigant. The unpublished decision may be cited pursuant to rule 8.1115(b)(1) of the California Rules of Court.
The crux of Smith's complaint in Smith v. County of Alameda was that the County "should not have accepted for recording the trustee's deed upon sale reflecting the foreclosure sale of the property." (Smith v. County of Alameda, supra, A142436.) He contended the deed was defective because it did not bear a seal and was not properly acknowledged. We rejected his claim and affirmed a judgment of dismissal, reasoning that "judicially noticeable documents confirm the property was sold in a foreclosure sale and that the County properly fulfilled its ministerial function to record the deed reflecting the sale." (Ibid.) Indeed, we observed that "the recorder would have acted unlawfully by refusing to record the deed" because "a county recorder may not refuse to record an instrument 'on the basis of its lack of legal sufficiency.' " (Ibid.)
On April 25, 2016, Smith filed his latest lawsuit against the County. He alleges that the County and the assistant county clerk-recorder, Matthew Yankee, submitted a "false instrument to win case" involving "certified instrument #2012413977." The certified instrument that Smith identified is the trustee's deed upon sale that was the subject of judicial notice in Smith v. County of Alameda. Although Smith's complaint is not a model of clarity, he seems to contend that the County and Yankee acted improperly in seeking judicial notice of a "false instrument" in order to prevail in Smith v. County of Alameda. On this basis, he asserts causes of action for fraud, violation of his civil rights, writ of mandate, and quiet title.
In June 2016, defendants filed a motion to declare Smith a vexatious litigant and a separate anti-SLAPP motion to strike Smith's complaint. The trial court granted both motions in August 2016. As part of its order declaring Smith a vexatious litigant, the court issued a prefiling order prohibiting Smith from filing any new litigation without first obtaining leave from the presiding judge of the court in which the litigation is proposed to be filed. Smith filed a timely appeal.
DISCUSSION
1. Vexatious litigant order
The statutory scheme that authorizes a court to declare a person a vexatious litigant (§§ 391-391.8) was originally "enacted in 1963 to curb misuse of the court system by those acting in propria persona who repeatedly relitigate the same issues. Their abuse of the system not only wastes court time and resources but also prejudices other parties waiting their turn before the courts." (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008.) "A vexatious litigant may be required to furnish security before proceeding with pending litigation; if that security is not furnished, the litigation must be dismissed. [Citation.] In addition, a court may, on its own motion or on motion of a party, issue a prefiling order that prohibits the vexatious litigant from filing any 'new litigation' without first obtaining permission of the presiding judge of the court where the litigation is proposed to be filed." (Ibid.; §§ 391.3, 391.4, 391.7.)
The term "vexatious litigant" is defined in section 391, subdivision (b). As relevant here, the statute provides that a person is a vexatious litigant if he or she "commenced, prosecuted, or maintained in propria persona at least five litigations other than in small claims court" in the preceding seven-year period that were "finally determined adversely to the person . . . ." (§ 391, subd. (b)(1).) "Litigation" is defined to mean "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (§ 391, subd. (a).) An action that a plaintiff filed and dismissed is considered litigation finally determined adversely against the plaintiff, even if the dismissal is voluntary and without prejudice. (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779-780.)
In an appeal from an order declaring a person a vexatious litigant, we uphold the court's ruling "if it is supported by substantial evidence." (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.) "[W]e presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment." (Ibid.)
Here, defendants presented documentary evidence to establish that Smith pursued at least 15 state court lawsuits and one federal court lawsuit in propria persona since July 2013. All of the lawsuits were finally determined adversely against Smith. While three of the state court lawsuits were voluntarily dismissed by Smith "without prejudice," those dispositions are nonetheless considered final determinations adverse to Smith under section 391, subdivision (b)(1). (Tokerud v. Capitolbank Sacramento, supra, 38 Cal.App.4th at pp. 779-780.) We note that 11 of the cases filed in Alameda County Superior Court were consolidated, with Smith directed by the court to file a single amended complaint in the consolidated cases. Even if those 11 consolidated cases were treated as one "litigation" for purposes of section 391, subdivision (b)(1), there would still be six separate cases that were determined adversely to Smith in the three-year period preceding defendants' motion to declare Smith a vexatious litigant.
The following cases were filed in Alameda County Superior Court: (1) Smith v. Records of Alameda County, No. RG13687543, filed July 15, 2013 (dismissed); (2) Smith v. Official Records of County of Alameda, No. RG13689329, filed July 26, 2013 (dismissed; affirmed on appeal); (3) Smith v. Mx Investments LLC, No. RG13693703, filed August 29, 2013 (consolidated with No. RG13689329 and dismissed); (4) Smith v. First American Title Insurance Company, No. RG13702695, filed November 12, 2013 (consolidated with No. RG13689329 and dismissed); (5) Smith v. Cannon, No. RG13702700, filed November 12, 2013 (consolidated with No. RG13689329 and dismissed); (6) Smith v. U.S. Bank, No. RG13702706, filed November 12, 2013 (voluntarily dismissed); (7) Smith v. Cannon, No. RG13703172, filed November 14, 2013 (consolidated with No. RG13689329 and dismissed); (8) Smith v. U.S. Bank, No. RG13703179, filed November 14, 2013 (voluntarily dismissed); (9) Smith v. First American Title Insurance Company, No. RG13703185, filed November 14, 2013 (consolidated with No. RG13689329 and dismissed); (10) Smith v. Alameda County, No. RG13704597, filed November 25, 2013 (consolidated with No. RG13689329 and dismissed); (11) Smith v. Alameda County, No. RG13705173, filed December 2, 2013 (consolidated with No. RG13689329 and dismissed); (12) Smith v. Alameda County, No. RG1375379, filed December 3, 2013 (consolidated with No. RG13689329 and dismissed); (13) Smith v. Alameda County, No. RG13705381, filed December 3, 2013 (consolidated with No. RG13689329 and dismissed); (14) Smith v. County of Alameda, No. RG14710017, filed January 14, 2014 (consolidated with No. RG13689329 and dismissed); and (15) Smith v. County of Alameda, No. RG14735120, filed July 31, 2014 (voluntarily dismissed). The following case was filed in the United States District Court for the Northern District of California: Smith v. Alameda County, No. 15-cv-05380-JSW, filed November 24, 2015 (dismissed) --------
Accordingly, we conclude there is substantial evidence to support the trial court's order declaring Smith a vexatious litigant pursuant to section 391, subdivision (b)(1).
2. Anti-SLAPP order
"A SLAPP suit-a strategic lawsuit against public participation-seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted Code of Civil Procedure section 425.16-known as the anti-SLAPP statute-to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.)
A court's consideration of an anti-SLAPP motion involves a two-step process. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]' s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) " 'In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.' [Citation.] Thus, plaintiffs' burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment." (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 768.) We review the trial court's decision to grant or deny an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
We first consider whether Smith's causes of action arise from protected activity. The only factual allegation supporting the causes of action in Smith's complaint is that defendants "did not submit a certified Instrument #2012413977 to be Qualify [sic] as Evidence" and filed a "false instrument to win the case." Smith appears to be referring to the fact that the County's attorneys in Smith v. County of Alameda filed a copy of the trustee's deed as part of a request for judicial notice supporting the County's demurrer in that litigation. Yankee, an assistant clerk-recorder, certified that the trust deed was recorded as document #2012413977 and that the document "exists exactly as submitted by the County in the Clerk-Recorder's files."
The alleged act of filing a false document to win a case plainly qualifies as protected activity under the anti-SLAPP statute. (See § 425.16, subd. (e)(1), (2) & (4); see Rusheen v. Cohen, supra, 37 Cal.4th at pp. 1065-1066 [cause of action arising from defendant's litigation activity may be subject of anti-SLAPP motion].) All of the causes of action in Smith's complaint arise from that protected activity. It was unnecessary for defendants to demonstrate that the subject of the litigation is a matter of public interest. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123 ["public interest" limitation in anti-SLAPP statute does not apply to statements made in connection with a legislative, executive, or judicial proceeding]; see § 425.16, subd. (e).) Consequently, defendants met their burden to establish that the alleged acts giving rise to Smith's complaint were undertaken "in furtherance of the [defendants'] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . ." (§ 425.16, subd. (b)(1).)
With regard to the second step of the anti-SLAPP analysis, Smith failed to establish a probability of prevailing on his claims for two separate reasons. First, Smith presented no admissible evidence to support his claims. Instead, his opposition to the anti-SLAPP motion consisted solely of a series of boilerplate recitations of various statutes and legal principles. Second, even if such evidence had been presented, any claims based upon allegedly "false instruments" would be barred by the litigation privilege. (See Civ. Code, § 47, subd. (b).) That privilege extends to "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objections of the litigation; and (4) that have some connection or logical relation to the action." (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) "The litigation privilege immunizes litigants from liability for torts, other than malicious prosecution, which arise from communications in judicial proceedings." (Navellier v. Sletten, supra, 106 Cal.App.4th at p. 770.) The privilege applies even if the communications involved forgery or falsification of documents, such as the presentation for probate of a forged will. (See Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 642-643.) In this case, the litigation privilege would immunize defendants from any tort liability, other than for malicious prosecution, arising from their alleged submission of a false instrument in prior litigation. Smith therefore cannot meet his burden to establish a probability of prevailing on his complaint.
For the foregoing reasons, we conclude the trial court properly granted defendant's anti-SLAPP motion.
DISPOSITION
The August 25, 2016 orders granting the motion to declare Smith a vexatious litigant and granting the motion to strike Smith's complaint are affirmed. Respondents shall be entitled to recover their costs on appeal.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Jenkins, J.