Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG07324365
Jones, P.J.
Appellant Loli Victoria Wang filed a lawsuit alleging that Pacific Gas & Electric Company (PG&E) facilitated the installation of numerous “Carbon Monoxide Gas Murder Devices” in her apartment as part of a conspiracy to assassinate her. The trial court declared appellant a vexatious litigant and ordered her to furnish security in the amount of $10,000. (Code Civ. Proc., §§ 391, subd. (b)(1), 391.3.) Appellant failed to post security and the court dismissed her complaint. (§ 391.4.)
Unless otherwise specified, all further statutory references are to the Code of Civil Procedure.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2007, appellant filed a complaint in Alameda County Superior Court alleging that PG&E conspired with Queen Elizabeth II, British Secret Service Agents, and others to assassinate her by permitting the installation of numerous “deadly carbon monoxide gas murder devices” in her Oakland apartment.
In July 2007, PG&E filed a motion to declare appellant a vexatious litigant and to require her to furnish security. (§§ 391, subd. (b)(1), 391.1.) PG&E contended that appellant satisfied the requirements of section 391, subdivision (b)(1) because she had filed seven unsuccessful lawsuits in the preceding seven years. PG&E asked the trial court to take judicial notice of the following seven civil actions maintained by appellant:
Section 391, subdivision (b) lists four means by which a court can declare a person a vexatious litigant. (§ 391, subd. (b)(1)-(4); see also Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1500.) Pursuant to section 391, subdivision (b)(1), a person may be declared a “vexatious litigant” if he or she “[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 [] finally determined adversely to the person. . . .” The filing of the motion to declare a person a vexatious litigant “establishes the point from which the seven-year period” is measured. (Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 224.) Under section 391, subdivision (b)(1), an action is “finally determined” when “all avenues for direct review have been exhausted.” (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 992.)
Wang v. City of Oakland, Superior Court Alameda County, 2001, No. C8432087. In 2001, appellant filed a lawsuit in propia persona (pro per) lawsuit alleging that the Chinese government and Oakland Police officers attempted to murder her with poison gas. The trial court sustained a demurrer to every cause of action and denied appellant’s motion for reconsideration. In 2004, this court affirmed. (Wang v. City of Oakland, et al. (Aug. 14, 2004, A105713) [nonpub. opn.].)
Wang v. Jackie Lam, Superior Court Alameda County, 2002, No. 2002040069. In February 2002, appellant filed a pro per action alleging that various entities, including the Queen of England and then Oakland Mayor Jerry Brown, were conspiring to kill her and deprive her of an immense fortune. The trial court dismissed the complaint for appellant’s failure to comply with discovery orders and this court affirmed. (Wang v. Lam (Jan. 18, 2005, A107161) [nonpub. opn.].)
Wang v. Ridge Hotel Owner et al., Superior Court Alameda County, 2002, No. 2002073924. In November 2002, appellant filed a lawsuit in pro per, claiming that she was exposed to carbon monoxide at the Ridge Hotel. After a bench trial, the trial court concluded that appellant had not meet her burden of proof as to any cause of action. In December 2004, this court dismissed appellant’s appeal and denied her petition for rehearing. (Wang v. Dorsey, et al. (Jan. 3, 2005, A106479) [nonpub. opn.].)
Wang v. Oakland Sutter Hotel, Superior Court Alameda County, 2004, No. RG04149000. In April 2004, appellant filed a fourth pro per action, this time alleging that there were “carbon monoxide gas murder device[s]” hidden in her room at the Oakland Sutter Hotel. After appellant’s opening statement during a bench trial, the court dismissed her case, concluding that she was unable to provide any admissible evidence to support her claims. This court affirmed the judgment in December 2006. (Wang v. Oakland Sutter Hotel (Dec. 13, 2006, A113924) [nonpub. opn.].)
Wang v. Brown, Superior Court Alameda County, 2005, No. RG05208504. In April 2005, appellant sued then Oakland Mayor Jerry Brown in pro per. In this complaint, appellant raised conspiracy claims similar to the claims she raised in her previous lawsuits. The trial court sustained Brown’s demurrer to the complaint without leave to amend. This court dismissed appellant’s appeal of the order sustaining the demurrer as untimely. (Wang v. Brown (Oct. 25, 2006, A111710) [nonpub. opn.].) The trial court eventually dismissed the case in March 2007 for appellant’s failure to serve the remaining named defendants. The time for appellant to appeal the dismissal expired in mid-May 2007. (See Cal. Rules of Court, rule 8.104(a)(1) [deadlines to appeal].)
Wang v. Alta Bates Summit Medical Center et al., Superior Court Alameda County, 2005, No. RG05211948. In May 2005, appellant filed a pro per complaint alleging that defendants conspired to murder her and had installed a carbon monoxide murder device in her hotel room. The trial court dismissed the action after appellant failed to timely amend her complaint. In September 2006, this court dismissed appellant’s appeal as untimely. (Wang v. Alta Bates Summit Medical Center et al. (Sept. 25, 2006, A113936) [nonpub. opn.].)
Wang v. Piedmont System/Ridge Hotel, Superior Court Alameda County, 2005, No. RG05211945. In May 2005, appellant filed a seventh pro per complaint. The trial court dismissed the case after appellant failed to timely file an amended complaint. This court dismissed her appeal as untimely. (Wang v. Piedmont System/Ridge Hotel (June 30, 2006, A113927) [nonpub. opn.].)
In connection with its motion for an order designating appellant a vexatious litigant, PG&E also moved for an order requiring appellant to furnish security pursuant to section 391.1. PG&E argued that security was appropriate because appellant was a vexatious litigant and because there was “not a reasonable probability that [she] will prevail in the litigation” against PG&E. (§ 391.1.) Following a hearing, the court granted PG&E’s motion, declared appellant to be a vexatious litigant as defined in section 391, subdivision (b)(1), and ordered her to post a $10,000 security bond by September 14, 2007. (§§ 391.2, § 391.3.) The court also entered a prefiling order requiring appellant to obtain permission from the presiding judge before filing any new litigation. (§ 391.7.) The court denied appellant’s request for additional time to post the security and her request to satisfy the security requirement by making monthly payments.
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 [or she] will prevail in the litigation against the moving defendant.”
“At the hearing upon such motion the court shall consider such evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion.” (§ 391.2.) “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.” (§ 391.3.)
Section 391.7, subdivision (a) provides in relevant part, “the court may, on its own motion or the motion of any party, enter a prefiling order which 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 judge of the court where the litigation is proposed to be filed. . . .” Subdivision (b) of that statute provides, “The presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in [s]ection 391.3.”
Appellant failed to post the bond and PG&E moved to dismiss the case pursuant to section 391.4. On October 30, 2007, the court granted PG&E’s motion and dismissed the complaint.
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.”
DISCUSSION
The Court Properly Declared Appellant a Vexatious Litigant Pursuant to Section 391, Subdivision (b)(1)
A trial court exercises its sound discretion when it determines whether a person is a vexatious litigant. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219 (Ismaj).) “We uphold the court’s ruling if it is supported by substantial evidence.” (Id. at p. 219, citation omitted.) “On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment.” (Ibid., citation omitted.)
Substantial evidence supports the court’s ruling. In the seven years preceding the filing of PG&E’s motion to declare appellant a vexatious litigant, appellant filed seven lawsuits in the Alameda County Superior Court, all of which were “finally determined adversely” to her: (1) Wang v. City of Oakland, Superior Court Alameda County, 2001, No. C8432087; (2) Wang v. Jackie Lam, Superior Court Alameda County, 2002, No. 2002040069; (3) Wang v. Ridge Hotel Owner et al., Superior Court Alameda County, 2002, No. 2002073924; (4) Wang v. Oakland Sutter Hotel, Superior Court Alameda County, 2004, No. RG04149000; (5) Wang v. Brown, Superior Court Alameda County, 2005, RG05208504; (6) Wang v. Alta Bates Summit Medical Center, et al., Superior Court Alameda County, 2005, No. RG05211948; and (7) Wang v. Piedmont System/Ridge Hotel, Superior Court Alameda County, 2005, No. RG05211945. Based on this evidence, the court properly designated appellant a vexatious litigant pursuant to section 391, subdivision (b)(1). (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 780-782 [affirming trial court’s order declaring plaintiff a vexatious litigant pursuant to section 391, subdivision (b)].)
Appellant concedes that each of the seven lawsuits she filed was resolved adversely to her, but she claims that she did not initiate any of the cases for the purposes of harassment, frivolity, or delay. She seems to argue that she is not a vexatious litigant under section 391, subdivision (b)(3), which defines a vexatious litigant as one who “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.” Here, the court concluded appellant met section 391, subdivision (b)(1)’s definition of a vexatious litigant. As a result, we need not determine whether appellant also qualifies as a vexatious litigant under section 391, subdivision (b)(3).
The Order Requiring Security Was Not an Abuse of Discretion
A court may require a vexatious litigant to furnish security as a condition of prosecuting a pending lawsuit if it determines — after hearing the evidence on the motion — 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. . . .” (§ 391.3.) Pursuant to section 391.3, “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.” The purpose of security is to “assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party’s reasonable expenses, including attorney’s fees . . . incurred in or in connection with a litigation instituted” or maintained by a vexatious litigant. (§ 391, subd. (c).)
Appellant contends the order requiring her to pay security is inappropriate because her lawsuit is “totally meritorious.” She claims that “gas murder devices have been installed by P.G.&E. with the help of [her] landlord,” but she points to no evidence to support this claim. As a result, she has waived raising this as an issue on appeal. (Warfield v. Summerville Senior Living, Inc. (2007) 158 Cal.App.4th 443, 448 [arguments “unsupported by citations to the record” are “deemed waived”].) In any event, there is ample support for the court’s conclusion that there was “not a reasonable probability” that appellant would prevail in her lawsuit against PG&E. (§ 391.1.) In her seven previous lawsuits, appellant had raised similar claims, all of which were rejected. In several of those cases, the trial court rejected appellant’s claims for lack of admissible evidence. (Wang v. Ridge Hotel Owner et al., Superior Court Alameda County, 2002, No. 2002073924; Wang v. Oakland Sutter Hotel, Superior Court Alameda County, 2004, No. RG04149000.) The evidence appellant offered to support her allegations was the same evidence which was found to be insufficient in her previous lawsuits. The court here was not required to accept the truth of appellant’s allegations for the purpose of evaluating whether there was a reasonable probability that appellant would prevail in the current litigation. (Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 785 & fn. 7 (Moran).) The court was permitted to weigh the evidence and to conclude that there was not a reasonable probability that appellant would prevail against PG&E.
From the premise that she is not a vexatious litigant, appellant argues she does not need to post a security bond of $10,000. She complains that her monthly income prevents her from furnishing $10,000 as security. Apparently, she views the amount of the security ordered as unreasonable and unsupported by the evidence. We disagree that the amount of the security was unreasonable. A “court is not required to consider the plaintiff’s means in determining the amount of security.” (3 Witkin, Cal. Procedure (4th ed. 1996) IV, Actions § 342, p. 437, citing Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1587-1588 (Devereaux), overruled on other grounds in Moran, supra, 40 Cal.4th 780, 785 & fn. 7.) In Devereaux, plaintiff contended that the trial court should not have ordered her to pay $25,000 security because “she was proceeding in forma pauperis.” (Devereaux, supra, at p. 1587.) The Devereaux court rejected this contention and explained that the vexatious litigant statute “nowhere require[s] the trial court to take into consideration the plaintiff’s means in determining the amount of security to be required.” (Id. at p. 1588.) The court also noted that the amount of security was supported by an affidavit from defendant’s attorney which calculated the amount of security needed “based on discovery which [plaintiff] had filed in the action and her conduct in other litigation with [defendant].” (Id. at p. 1588.)
Thus, we review the court’s determination of the amount of security for any substantial evidence to support the order. (Devereaux, supra, 32 Cal.App.4th at p. 1588.) As in Devereaux, the amount of security here was based on sufficient evidence. PG&E’s attorney submitted a declaration describing the costs and fees associated with investigating appellant’s prior lawsuits and preparing the motion to designate appellant a vexatious litigant. Counsel for PG&E noted that “[a]dditional costs and attorney’s fees will be incurred if Ms. Wang is permitted and able to proceed with this lawsuit” and requested that appellant furnish security “in an amount of not less than $10,000, but at the discretion of the Court.” This is not a situation like the one in Muller v. Tanner (1969) 2 Cal.App.3d 445, 465, where the appellate court reversed the trial court’s imposition of security in the amount of $5,000 and noted that “[f]rom all that appears in the record of this case the sum of $5,000 was picked out of thin air.” (Id. at p. 465.) Here, there was a relationship between the amount of the security and the costs and expenses incurred by PG&E in defending appellant’s lawsuit. Accordingly, the court did not abuse its discretion in setting the amount of the security. (See McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1219 [rejecting plaintiff’s assertion that the amount of security was an undue burden because she qualified for social services and had “‘no income available other than subsistence’”].) And when appellant did not furnish the security by September 14, 2007, the trial court was required to dismiss her complaint. (§ 391.4.)
Finally, appellant complains that the order requiring her to obtain permission before filing future lawsuits will deny her access to the courts. As noted above, the court imposed a prefiling order pursuant to section 391.7, which prohibits appellant from “filing any new litigation in propria persona in the courts of California without approval of the presiding judge of the court in which the action is to be filed.” In Ismaj, the Fourth District Court of Appeal explained that “[w]hen the [vexatious] litigant is subject to a prefiling order, even if the court finds high enough probability of success to allow the litigant to proceed, it may compel the litigant to furnish security as a condition to maintaining the action. Section 391.7’s extra burden upon the vexatious litigant arises because a state court has taken a second step in addressing the vexatious litigant problem and has determined that no court or adverse party should be burdened by the particular plaintiff’s meritless litigation.” (Ismaj, supra, 99 Cal.App.4th at p. 221, citation & internal punctuation omitted.) The Ismaj court rejected the argument appellant makes here and held that “[s]ection 391.7 does not deny the vexatious litigant access to the courts, but operates solely to preclude the initiation of meritless lawsuits and their attendant expenditures of time and costs.” (Ismaj, supra, at pp. 221-222.)
If appellant wishes to lift the prefiling order, she must bring a motion in Alameda Superior Court and demonstrate a change in circumstances justifying the lifting of that order. (Luckett v. Panos (2008) 161 Cal.App.4th 77, 95, review den. June 11, 2008 [any attempt to erase a vexatious litigant prefiling order should be brought in the forum that originally entered the prefiling order and must show a change in circumstances]; see also PBA, LLC. v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 976 [vexatious litigant determination and imposition of prefiling order may be reversed only upon a finding of “change in facts or circumstances”].)
DISPOSITION
The judgment is affirmed. PG&E is awarded its costs on appeal.
We concur: Simons, J., Reardon, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.