Filed 11/20/19 Leason v. Project M Worldwide LP CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

NIKENA LEASON,

Plaintiff and Appellant,

v.

PROJECT M WORLDWIDE LP et al.,

Defendants and Respondents.

D074376

(Super. Ct. No. 37-2017-00008807- CU-CR-CTL)

APPEAL from an order of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed.

Nikena Leason, in pro. per., for Plaintiff and Appellant.

Andrews Lagasee Branch + Bell; Jonathan D. Andrews and Jessica B. Yang for Defendants and Respondents.

Plaintiff Nikena Leason, appearing in propria persona as she did in the trial court, appeals the June 15, 2018 order of the court (1) refusing to vacate its March 1, 2018 order declaring her a vexatious litigant (see Code Civ. Proc., §§ 391 & 391.3); and (2) dismissing without prejudice her discrimination action against defendant franchisees Project M Worldwide LP (Project M), PMW Acquisition, LP, and Samod LP (sometimes collectively, defendants or defendant franchisees), the owners and operators of a McDonald’s restaurant. (See § 391.4.)

The trial court in its March 1 order found plaintiff was a vexatious litigant based on her repeated filing of documents in the instant action claiming (1) her lawsuit was against McDonald’s Corporation and not defendants, despite the court’s finding that defendant franchisees were the proper parties to the action; (2) defendants were improperly interfering in her lawsuit because as plaintiff, she alone had the right to determine the party to be sued; and (3) the court should have entered default judgment against McDonald’s Corporation and awarded her $5 million based on that entity’s failure to respond to her complaint.

On appeal, plaintiff makes a series of claims of error. However, the only issue to be decided by this court is the validity of the June 15 order. Because we conclude substantial record evidence supports the court’s finding that plaintiff is a vexatious litigant within the meaning of subdivision (b)(3) of section 391, and because plaintiff did not post a bond as required by court order and statute, we affirm the June 15 order.

OVERVIEW

A. Plaintiff’s Complaint

In March 2017, plaintiff filed a complaint against “McDonald’s Corporation,” asserting causes of action for discrimination, negligence, fraud/misrepresentation, and violation of multiple sections of the Unruh Civil Rights Act. (Civ. Code, § 51 et seq.) The complaint alleged that plaintiff on December 24, 2016 went to a McDonald’s restaurant located on University Avenue in San Diego (Restaurant); that upon entering the Restaurant at 5:57 a.m., an employee named “Sandra” told plaintiff that she had to wait outside until 6:00 a.m.; that once inside the Restaurant, plaintiff asked for a “token” to use the Restaurant bathroom; that Sandra in response told plaintiff she first had to order something from the menu; and that when plaintiff said she needed to use the bathroom before ordering, Sandra instructed plaintiff to leave the Restaurant and told other employees at the counter not to serve plaintiff.

Plaintiff’s complaint further alleged that another McDonald’s employee served plaintiff, who ate her meal while “having to hold her bladder, due to the unfair treatment of Sandra.” After completing her meal, plaintiff requested a coffee refill. Despite being a customer, plaintiff alleged she “was denied the refill due to a 30-minute rule which implies no loitering.” Plaintiff alleged Sandra’s conduct was “malicious,” “intentional[],” and “outside of the scope of her duties.” Plaintiff sought damages of $5 million against McDonald’s Corporation.

The record shows plaintiff unsuccessfully attempted to serve “McDonald’s Corporation” at the Restaurant on the same day she filed her complaint. More than four months later, plaintiff had the San Diego County Sheriff Civil Office serve the summons and complaint on “McDonald’s Corporation,” with the proof of service showing “substituted service” on the “Gen. Mngr.” (i.e., general manager) of the Restaurant. Defendants first became aware of Plaintiff’s lawsuit on or about July 27, 2017.

B. Plaintiff Insists Her Lawsuit Was Against McDonald’s Corporation, and Did Not Oppose Defendants’ Demurrer to her Complaint

Defendants’ counsel in an August 21, 2017 meet and confer letter identified a number of deficiencies to plaintiff’s complaint, including that defendants had been erroneously sued as McDonald’s Corporation. Defendants also requested plaintiff amend her complaint to allow them to “understand the nature, source, and extent of [her] claims.” Defendants in this letter noted their response to the complaint was due on August 28.

On August 23, defendants sought a 30-day extension to respond to the complaint, after plaintiff did not reply to their meet and confer. The court on August 28 granted the request, setting September 27 as the new deadline for defendants’ response.

On September 1, 2017, plaintiff filed a multi-page, single-spaced document in connection with defendants’ meet and confer letter. Plaintiff generally challenged defendants’ counsel’s authority to meet and confer, stating she would not agree to engage in this interactive process without counsel first providing evidence that it had “legal authorization” to request “information on this case,” and that it was the “legal agent of service for McDonald’s Corporation.” It appears plaintiff on September 1 also filed an opposition to defendants’ request for a 30-day extension to respond to the complaint, despite the fact the extension already had been granted.

Defendants filed their demurrer on September 19, 2017, alleging each cause of action in the complaint was insufficiently pleaded. Defendants requested the demurrer be sustained without leave to amend because the complaint alleged “unspecified intentional torts, raises claims that are not legally cognizable, and otherwise lacks factual allegations identifying what protected class Plaintiff belongs to or serves as the basis for any alleged discrimination or harassment.” The demurrer hearing was set for January 12, 2018.

On November 9, 2017, plaintiff filed what she termed a “motion to demurrer and default judgment” with a hearing date of December 15, 2017. (Capitalization omitted.) Plaintiff in her “statement of facts” alleged that the party causing her injury was McDonald’s Corporation, not defendants; that the Restaurant “has been operating as McDonald’s with all names and signage displayed as McDonalds”; and that because defendants were “not a party to [the] suit,” the court should “bifurcate[]” them. Plaintiff’s November 9 motion also asked the court to default McDonald’s Corporation based on its failure to respond to the complaint.

Defendants opposed the November 9 motion. In so doing, defendants again informed plaintiff that, as franchisees, they—and not McDonald’s Corporation—owned and operated the Restaurant identified in her complaint, merely doing business as McDonald’s; that they and McDonald’s Corporation were “separate and distinct legal entities”; and that McDonald’s Corporation held “no legal interest in the Restaurant.”

The court in its December 15 minute order denied plaintiff’s November 9 motion. It ruled defendants’ filing of their September 17 demurrer was a timely response to the complaint. It also ruled that McDonald’s Corporation could not be defaulted because it found the Restaurant, where the alleged wrongful conduct occurred, was “wholly owned by Defendants”; and that plaintiff had failed to show that “McDonald’s Corp. is the correctly named entity.”

On January 12, 2018, the court at an unreported hearing sustained defendants’ unopposed demurrer to plaintiff’s complaint. The court gave plaintiff 10 days leave to amend. Plaintiff, however, never amended her complaint.

C. Defendants’ Motion to Declare Plaintiff a Vexatious Litigant

As a result of plaintiff’s insistence on suing McDonald’s Corporation, on

January 25, 2018 defendants filed a motion to declare plaintiff a vexatious litigant and to require her to post a bond of at least $30,000. Defendants argued they were entitled to such relief based in part on plaintiff’s filing of multiple documents in the instant action claiming that McDonald’s Corporation was the party responsible for her injury and damages, despite the fact this entity did not own or manage the Restaurant where the alleged discrimination took place.

Plaintiff opposed the vexatious litigant motion, again arguing that she had not sued defendants but only McDonald’s Corporation; that defendants’ “involvement” in the litigation had caused her “undue hardship” and “emotional distress”; and that defendants should be required to pay punitive damages because “Project M is not a party to the complaint and does not have authority to dismiss the case in whole or part.” As before, plaintiff in her opposition also asked the court to default McDonald’s Corporation based on its failure to respond to the complaint. Finally, plaintiff requested the court enter summary judgment and award her $50,000 as a result of the “expense, time and effort” she had already expended in the case.

Plaintiff in her opposition also argued: “Vexatious does not apply to this case or [to] plaintiff, Nikena Leason. The protections guaranteed under the U.S. Constitution guarantees the right to sue without harassment, or name calling. The ability to pursue justice without interference and badgering is essential to protect our jurisprudence. Justice doesn’t exist without the ability to protect our rights and that includes justice for all without the fear of harassment and discrimination. A party who has not been sued does not have the right or jurisdiction to request any fees for anything; they are not a party to the lawsuit. Their actions are vexatious.”

On February 23, while defendants’ motion to declare plaintiff a vexatious litigant was pending, she filed a document titled “incapable of adding doe-third party without prima facie.” (Capitalization omitted.) In this document, plaintiff reiterated that she alone had the “right to determine who can be sued in the case, as the moving party based on damages and the degree of liability.” Plaintiff again requested that the court default McDonald’s Corporation and award her damages of $50,000.

D. The Court Declares Plaintiff to Be a Vexatious Litigant

As noted, on March 1 the court issued its order granting in part defendants’ motion to declare plaintiff a vexatious litigant. After taking the matter under submission at an unreported February 23 hearing, the court in its March 1 order ruled as follows: “Defendants are the parties who were served with the complaint after a number of failed attempts. Defendant franchisees (erroneously sued as McDonald’s Corporation) demurred to the complaint. The demurrer was sustained, with leave to amend. Plaintiff failed to timely file an amended complaint.

“For the reasons stated in Defendants’ moving papers, Plaintiff is a vexatious litigant. The court finds Plaintiff does not have a reasonable probability of prevailing on her claims. Pursuant to CCP section 391.1 and 391.3, Plaintiff is required to post a bond in the amount of $30,000 within twenty (20) court days to continue this litigation, which otherwise will be dismissed with prejudice on March 23, 2018. In the event the bond is posted, the matter will be set for a Case Management Conference on April 6, 2018

at 9:30 a.m.”

The record shows the court on March 1 also issued a “prefiling order,” preventing plaintiff, unless represented by an attorney, from “filing any new litigation in the courts of California without approval of the presiding justice or presiding judge of the court in which the action is to be filed.”

E. Plaintiff Moves to Vacate the Court’s March 1 Order

Plaintiff moved to vacate the March 1 order declaring her a vexatious litigant and requiring her to post a $30,000 bond. Defendants opposed the motion, noting that plaintiff continued to “raise meritless arguments referring to Defendants as ‘improper third parties’ to the case and cites to inapplicable statutory sections of the Federal Rules of Civil Procedure and the California Code of Civil Procedure.” Defendants also argued that plaintiff’s motion to vacate the March 1 order was further support for her “vexatious nature”; that plaintiff could have appealed the March 1 order but did not do so; and that the court should dismiss the case because plaintiff failed to post the bond as required by the court.

The court on June 15 heard argument on plaintiff’s motion to vacate the March 1 order. That hearing, like all others, was unreported. The court denied plaintiff’s motion. In so doing, the court ruled in part as follows: “The Court previously determined that Defendants are properly in this action. Defendants, as franchise owners of the restaurant identified in the Complaint, are the proper legal entities in this action. (See Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474.) A franchisor is potentially liable for the actions of the franchisee’s employees ‘only if it has retained or assumed a general right of control over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee’s employees.’ (Id. at 497–498.) Plaintiff has not alleged or asserted that McDonald’s Corporation had such control over the franchisee in this case.

“More importantly, Plaintiff has not justified her actions that form the basis for her status as a vexatious litigant. Plaintiff continues to assert the same, unjustified arguments. Plaintiff failed to comply with this Court’s order that she post a bond in the amount of $30,000 within twenty days of March 1, 2018, or the matter would be dismissed on March 23, 2018. No bond has been posted. The matter is hereby dismissed without prejudice.”

F. Proceedings on Appeal

In lieu of a reporter’s transcript, plaintiff on appeal submitted a proposed statement on appeal pursuant to California Rules of Court, rule 8.137 (rule 8.137) (sometimes, Statement). The Statement was accompanied by a November 20, 2018 minute order, noting no hearing was necessary under rule 8.137(f)(1) & (3) to accept the Statement because there had been no objection to it.

In the Statement, in response to the reason for her appeal, plaintiff in part wrote: “The party who answered [was] not sued. I sued McDonald’s Corp. they are required to answer or default whether they believe there is merit or not.” As was the case in the trial court, plaintiff asserted that her lawsuit was against McDonald’s Corporation and not defendants; and that defendants therefore were liable for “interfering” in the lawsuit.

When asked for a “complete and accurate” summary of what was said at the

June 15 hearing, plaintiff in her Statement wrote in part: “Party not sued filed vexatious litigant claim without being sued. This action took place without a motion and without a hearing on the potential damages of an entity not required to participate. . . . They in fact were vexatious and can be sued and did in fact have a claim, from this case, filed against them for interfer[ing] and causing additional damages. Plaintiff filed a motion to vacate and that motion was denied.”

DISCUSSION

A. Guiding Principles

“The vexatious litigant statutes (§§ 391–391.7) are designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants.” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169.) Section 391.1 provides that in any litigation pending in a California court, the defendant may move for an order requiring the plaintiff to furnish security on the ground the plaintiff is a vexatious litigant and has no reasonable probability of prevailing against the moving defendant. The action is stayed pending determination of the motion. (§ 391.6.) If, after a hearing, the court finds for the defendant on these points, it must order the plaintiff to furnish security “in such amount and within such time as the court shall fix.” (§ 391.3, subd. (a).) The plaintiff’s failure to furnish that security is grounds for dismissal.

(§ 391.4.)

When considering a motion to declare a litigant vexatious, the court must weigh the evidence to decide whether the litigant is vexatious based on the statutory criteria and whether the litigant has a reasonable probability of prevailing. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635.) To be declared vexatious, a litigant must come within one of the definitions in section 391, subdivision (b). (Morton v. Wagner (2007) 156 Cal.App.4th 963, 969 (Morton).) Furthermore, “[a]ny determination that a litigant is vexatious must comport with the intent and spirit of the vexatious litigant statute. The purpose of which is to address the problem created by the persistent and obsessive litigant who constantly has pending a number of groundless actions and whose conduct causes serious financial results to the unfortunate objects of his or her attacks and places an unreasonable burden on the courts. [Citations.] Therefore, to find that a litigant is vexatious, the trial court must conclude that the litigant[‘]s actions are unreasonably impacting the objects of appellant’s actions and the courts as contemplated by the statute.” (Id. at pp. 970–971.)

We review a trial court’s order declaring a party to be a vexatious litigant for substantial evidence. (Morton, supra, 156 Cal.App.4th at p. 969.) We are required to presume the order declaring a litigant vexatious is correct and imply findings necessary to support that designation. (Ibid.) A reversal is required only where there is no substantial evidence to imply findings in support of the vexatious litigant designation. (Ibid.)

B. Analysis

Here, substantial evidence supports the court’s finding that plaintiff qualified under section 391, subdivision (b)(3) as a vexatious litigant. It provides a vexatious litigant is a person who, “while acting in propria persona, 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.”

The record shows that, once served with the lawsuit, defendants repeatedly informed plaintiff that they and not McDonald’s Corporation owned and operated the Restaurant where plaintiff contends the alleged wrongful conduct occurred; that defendants were merely in a franchise relationship with McDonald’s Corporation, which held no interest in the Restaurant; and that the court had found defendants were the “proper legal entities in this action.”

Plaintiff, acting in propria persona throughout this litigation, refused to accept that she erroneously sued McDonald’s Corporation. As summarized in detail ante, plaintiff, in all of her myriad filings in the trial court, and in this court, repeatedly argued that she was entitled to designate the party sued, which was McDonald’s Corporation; that defendants’ “interference” in the lawsuit caused her injury and damages, as they were preventing her from exercising her civil rights; and that, because McDonald’s Corporation did not respond to the complaint, the court should have granted summary judgment in her favor.

The record further shows the court ordered plaintiff to post a $30,000 bond as a result of her filing myriad “unmeritorious motions, pleadings, or other papers” (see § 391, subd. (b)(3)); that plaintiff did not post the bond within 20 days, as ordered by the court; and that instead she continued to file more motions and papers, as also summarized ante, making the same arguments that had been repeatedly rejected by the court, which arguments were also the basis for the court’s finding she was a vexatious litigant.

Because we conclude there is ample record evidence to support the court’s finding that plaintiff was a vexatious litigant under section 391, subdivision (b)(3), and because she did not post a bond as ordered by the court, we affirm the court’s June 15 order.

DISPOSITION

The June 15 order is affirmed. Defendants to recover their costs on appeal.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.