Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CGC-09-484709
Banke, J.
I. Introduction
Plaintiff Alex Yakovlev (Yakovlev) appeals from an order dismissing his lawsuit after he was declared a vexatious litigant and failed to post $10,000 in security as ordered by the trial court. Yakovlev’s opening brief violates numerous rules of court, including California Rules of Court, rule 8.204(a)(2)(C) requiring “a summary of the significant facts limited to matters in the record, ” and rule 8.204(a)(1)(C) requiring any reference to a matter in the record be supported by a “citation to volume and page number of the record where the matter appears.” Yakovlev’s opening brief is devoid of any citations to the record. On that basis, alone, we could reject his appeal and affirm the dismissal. We have, however, reviewed the record and conclude the trial court’s determination that Yakovlev is a vexatious litigant under Code of Civil Procedure section 391, subdivision (b)(1), is supported by substantial evidence. We further conclude the court did not abuse its discretion in ordering Yakovlev to post $10,000 in security under sections 391.1 and 391.3, and since Yakovlev failed to do so, the dismissal was proper under section 391.4.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
II. Background
In November 2008, Yakovlev filed a claim for property loss with Visa Enhancement Services (Visa). In December, he sent a letter to Visa stating he had submitted all required documentation and indicating he would sue the company if he were to lose “financial opportunities” due to any delay in paying his claim. The following month, in January 2009, he again communicated with Visa, complaining he had been misinformed and mistreated regarding his claim and stating he intended to file suit. In February, Yakovlev filed a complaint, instituting this case, alleging fraud and negligence.
Visa responded with a motion to declare Yakovlev a vexatious litigant under section 391, subdivision (b)(1), and for an order requiring him to post security under section 391.1. Visa’s supporting papers included a request for judicial notice of court records indicating Yakovlev had filed six lawsuits in pro. per. in the preceding seven years, all of which were determined against him.
Yakovlev filed a document entitled “Certification in Opposition” to Visa’s motion. The document contained no averment that it was based on personal knowledge, nor was it properly verified. Yakovlev did not file opposition to Visa’s request for judicial notice. Nor did he make any evidentiary objections to the matters embraced by the request.
The trial court issued a tentative ruling in favor of Visa. Yakovlev did not give notice that he intended to contest the trial court’s tentative ruling. Nor did he appear at the April 13, 2009, hearing. The court adhered to its tentative ruling, and granted Visa’s request for judicial notice, declared Yakovlev a vexatious litigant under section 391, subdivision (b)(1), ordered him to post security of $1,500 under section 391.1 and issued a prefiling order pursuant to section 391.7.
Before the court issued a written order, Yakovlev filed an ex parte application and then a motion “to vacate judgment, ” seeking reversal of the vexatious litigant determination and security and prefiling orders. Visa opposed the motion, and the court denied it on May 20, 2009, stating it was an improper motion for reconsideration. On May 26, 2009, the court issued a written order setting forth its vexatious litigant determination, ordering Yakovlev to post security of $1,500 and issuing a prefiling order. Yakovlev posted the required security on May 29, 2009.
He also continued to take issue with the court’s vexatious litigant rulings, and over the ensuing months filed a motion “for reconsideration, ” notice of appeal and another motion to vacate. The motions were denied; the notice of appeal was dismissed by this court on the ground the vexatious litigant rulings were interim rulings and not appealable. During this same period of time, Yakovlev also made a series of improper discovery requests, generating a spate of motions and ultimately an award of sanctions against him.
On December 24, 2009, pursuant to section 391.3, Visa moved to increase the amount of security. Visa recounted the repeated efforts by Yakovlev between April and November 2009 to have the vexatious litigant rulings set aside or vacated, and his abusive discovery efforts which finally triggered an award of sanctions in December 2009. The trial court granted the motion, and issued a written order on February 24, 2010, requiring Yakovlev to post additional security, totaling $10,000, within 20 days. When Yakovlev failed to do so, Visa moved to dismiss the case. The trial court granted the motion and on September 7, 2010, issued a written order dismissing the case with prejudice pursuant to section 391.4. Yakovlev filed a timely notice of appeal.
Although Yakovlev claims he was not given notice of this motion, the record contains a proof of service.
Although entitled an “Order Regarding Defendant’s Motion to Dismiss Pursuant to CCP Section 391.4, ” the document declared the case dismissed with prejudice. We therefore view the “order” as a judgment of dismissal from which an appeal can properly be taken. (See § 581d.)
III. Discussion
The Vexatious Litigant Determination
Our standard of review of the trial court’s determination that Yakovlev is a vexatious litigant is well established. “ ‘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.] Questions of statutory interpretation, however, we review de novo.” (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1498-1499.)
The trial court determined Yakovlev is a vexatious litigant under section 391, subdivision (b)(1), which provides a litigant is vexatious if “[i]n the immediately preceding seven-year period [he or she] 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....” (§ 391, subd. (b)(1).) Section 391, subdivision (a), defines “litigation” as “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” (§ 391, subd. (a).)
The court documents of which the trial court took judicial notice pursuant to Vias’s request, showed Yakovlev, in propria persona, initiated and was unsuccessful in the following litigations:
1) Yakovlev v. Chernobilsky (Super. Ct. San Mateo, 2002, No. CIV422066). Petition for injunction prohibiting harassment denied on June 4 2002. No appeal filed;
2) Yakovlev v. McKenzie (Super. Ct. S.F. City and County, 2005, No. CGC-04-430632). Arbitration Award entered on or about January 28, 2005 denying the plaintiffs’ claim for damages. No request for trial de novo or appeal filed;
3) Yakovlev v. HousingCorps., Inc. (Super Ct. S.F. City and County, 2007, No. CGC-05-441783). Pretrial dismissal with prejudice entered on or about October 16, 2007;
4) Yakovlev v. Robertson (Super. Ct. S.F. City and County, 2007, No. CGC-05-444491). Pretrial dismissal with prejudice entered on or about October 16, 2007;
5) Yakovlev v. CostcoWholesaleMembership, Inc. (Super. Ct. S.F. City and County, 2009, No. CGC-08-478705). Judgment for dismissal in favor of Costco Wholesale Corporation entered on or about December 18, 2008. No appeal filed; and
6) Yakovlev v. CostcoWholesaleCorp. (Super Ct. S.F. City and County, 2009, No. CGC-09-483982). Demurrer sustained without leave to amend and dismissal with prejudice in favor of Costco Wholesale Corporation entered on April 13, 2009. No appeal filed.
As we have recited, Yakovlev filed no opposition to Visa’s request for judicial notice. (See Evid. Code, §§ 453, subd. (a), 455.) Nor did he make any evidentiary objections to the court records as to which judicial notice was sought. He therefore has waived any complaints about the request and the matters which it embraced on appeal. (See People v. Doolin (2009) 45 Cal.4th 390, 437.) Furthermore, the declaration Visa submitted in support of its motion laid a proper foundation for the court documents and demonstrated the documents submitted to the court were, indeed, true and correct copies of court documents. The documents also were plainly relevant to Visa’s motion. Accordingly, the trial court properly granted Visa’s request for judicial notice of the court documents evidencing Yakovlev’s litigious history. (Evid. Code, § 453.)
Yakovlev contends he did not suffer the requisite five adverse judgments in seven years, asserting the dismissals resulted from settlements and therefore should not count against him. However, the trial court properly determined the dismissals with prejudice were dispositions adverse to Yakovlev. (See Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1173-1174.) “Only where the dismissal leaves some doubt regarding the defendant’s liability... will the dismissal not be deemed a termination favorable to the defendant.” (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779-780.) The clerk’s registers of actions in most of the dismissed litigations were as extensive, if not more so, than the 17-page clerk’s register of actions in this case. They also, as in this case, reflect Yakovlev’s unrelenting litigiousness and that the dismissals were plainly favorable outcomes for the defendants.
Yakovlev also levels a barrage of constitutional challenges to the vexatious litigant statutes. Indeed, he goes so far as to assert California’s vexatious litigant statutes constitute an unconstitutional bill of attainder and circumvent “the criminal procedural protections of California’s barratry statutes.” However, the courts have repeatedly upheld the vexatious litigant statutes against constitutional challenge. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 221-222; Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 60; see also Wolfe v. George (9th Cir. 2007) 486 F.3d 1120, 1127.)
He variously contends the vexatious litigant statutes limit access to the courts, invidiously discriminate against pro se litigants (who he contends are a protected class), and abridge speech rights in a public forum.
Barratry is “the practice of exciting groundless judicial proceedings, and is punishable by imprisonment in the county jail not exceeding six months and by fine not exceeding one thousand dollars ($1,000).” (Pen. Code, § 158.)
The Order Requiring Security
To require the posting of security under section 391.1, a trial court must find not only that the plaintiff is a vexatious litigant, but also that there is “not a reasonable probability that he will prevail in the litigation against the moving defendant.” (§ 391.1.) “[A] court’s decision that a vexatious litigant does not have a reasonable chance of success in the action is based on an evaluative judgment in which the court weighs the evidence. If there is any substantial evidence to support the court’s determination, it will be upheld.” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 636.) The amount of security ordered is reviewed for abuse of discretion. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1222.)
The trial court’s finding that there was no reasonable probability that Yakovlev would prevail against Visa is supported by sufficient evidence. In ruling on Visa’s motion to declare Yakovlev a vexatious litigant and for an order requiring security, the trial court had before it the following: Yakovlev’s original, barebones complaint; Visa’s well-documented motion, including a declaration of counsel pointing out the complaint alleged insufficient facts to state either a negligence or fraud claim; Yakovlev’s unsworn and rambling “Certification in Opposition”; and Visa’s reply papers, which included the additional information that Yakovlev had also threatened to report Visa’s attorney to the State Bar and threatened to sue her for harassment. Thus, there was every indication this case was headed in the same direction as the others Yakovlev had filed and lost in the preceding years, and the trial court was on solid ground in “making an evaluative judgment” Yakovlev was not likely to prevail in this case.
We do not consider Yakovlev’s subsequent complaints (first amended and second amended) following successful demurrers by Visa since the trial court’s vexatious litigant determination and order for security occurred while the original complaint was the operative pleading.
Nor did the trial court abuse its discretion in setting the amounts of security. Initially, the court ordered Yakovlev to post $1,500 (Visa had requested $40,000), an amount that was imminently reasonable and well within the bounds of the court’s discretion. It became painfully apparent over the following months this amount was not adequate to ensure either proper conduct by Yakovlev or that Visa would not be required to incur extensive costs and fees defending against improper and meritless litigation efforts. We have recounted his numerous, unsuccessful attempts to overturn the vexatious litigant rulings and his repeated discovery abuses. Indeed, the 17-page clerk’s register of actions generated in this case well illustrates Yakovlev’s litigiousness. Accordingly, the trial court also acted well within its discretion under section 391.3 in granting Visa’s motion to increase the amount of security to $10,000. Since Yakovlev failed to post the requisite security, the case was also properly dismissed. (§ 391.4.)
IV. Disposition
This judgment of dismissal is affirmed.
We concur: Marchiano, P. J., , Margulies, J.