Filed 11/25/19 Hubbard v. Evett CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

DONALD HUBBARD,

Plaintiff and Appellant,

v.

CODY EVETT,

Defendant and Respondent.

C085694

(Super. Ct. No. 34201700211640CUDFGDS)

Donald Hubbard sued Cody Evett for defamation and intentional infliction of emotional distress (IIED). The complaint alleged Evett made defamatory statements about Hubbard during the course of a child custody dispute between Evett and his ex-girlfriend, C., who was Hubbard’s current girlfriend, and that such statements amounted to outrageous conduct causing Hubbard to suffer severe emotional distress. Rather than answer the complaint, Evett moved the trial court to require Hubbard to furnish security or have the case dismissed on the ground Hubbard is a vexatious litigant with no reasonable probability of prevailing in the litigation. The trial court granted the motion and thereafter dismissed the case after Hubbard failed to post the required security.

Hubbard appeals. While his briefing purports to raise three issues, the first of which contains eight sub-issues, the dispositive question we must resolve is whether substantial evidence supports the trial court’s determination that Hubbard is a vexatious litigant who has no reasonable probability of prevailing in this lawsuit. We conclude this determination is supported by substantial evidence and affirm the judgment of dismissal.

BACKGROUND

Underlying Child Custody Dispute

Evett and C. broke up in 2016. They have two children together. At some point after the break-up, C. began dating Hubbard, who was about 20 years her senior. They moved in together some time later.

In March 2017, Evett filed a request in the family court for joint legal and physical custody of the children. At the time, he and C. were apparently sharing custody under an informal arrangement.

About a week after filing the request for custody, Evett received a letter purporting to be from a private investigator hired by an unnamed client to investigate him. The letter informed Evett the investigation revealed he was “POST [Peace Officer Standards and Training] certified but currently working as a security guard.” The letter then stated: “I followed your employment history and have learned you pursued a career in law enforcement. I contacted the Los Rios Police Department (‘LRPD’) and off the record LRPD personnel indicated you admitted to a sexual relationship with minor [citation] and selling cocaine [citation]. Both of these act are felonies in the state of California and both acts admitted to law enforcement. Additionally, I have learned you were or are a drug user. Any of these acts could cause you to loose your children. I’m sure you understand if my client is compelled to use the information your life would change.” After providing a brief biographical sketch of the letter’s purported author, including military service involving two tours of duty in “the sandbox,” the letter continued: “I will share what happened to the last man I was asked to investigate. My client and the man had an altercation for something involving my clients girlfriend. It was state that my client beat the shit out of the man. Twice. I was then hired to investigate the man, found mortgage fraud and an extramarital affair. My client sued the man for the fight. My client took a six-figure settlement. I was then ordered to release information to the appropriate parties. The man was arrested. He is also now divorced.” The letter closed by bragging that the unnamed client “has money. A lot of money,” and threatened: “You cannot afford the shit storm my client can bring to your life. I am sure you agree there are those people in life that it is better to just give them a wide berth. My client is one. My client does not wish you any harm and does not want to interfere with your life or your family, however he does want you to quit causing problems.”

A few days later, Evett received a cease and desist letter from Hubbard’s attorney, Lyle D. Solomon. This letter stated: “I have been informed that you have made disparaging remarks about my client and [C.] Making disparaging comments and slanderous remarks are actionable and a lawsuit could be filed against you.” After demanding Evett “cease and desist with any further disparaging comments,” the letter stated Hubbard “has conferred with a specialty attorney” regarding Evett’s request for custody of his children. The letter then conveyed Solomon’s belief that Hubbard would instruct him to sue Evett on C.’s behalf “for the slanderous and disparaging comments” and that Hubbard would also “personally sue [Evett].” The letter warned of potential adverse consequences of “engaging in a lengthy legal battle” with Hubbard and suggested: “It might be in your best interest to try to work with [C.] and [Hubbard] rather than against them.”

Hubbard’s Lawsuit Against Evett

On April 27, 2017, Hubbard filed the threatened lawsuit, asserting causes of action against Evett for defamation and IIED. The same allegations were used to support each cause of action. Without stating what the allegedly defamatory statements were, the complaint alleges: “Without reason, provocation and solely out of malice and anger, Defendant Evett has repeatedly verbally attacked and slandered [Hubbard]. These attacks are beyond statements of opinion and un-privileged.” The complaint alleges Evett’s “false and fraudulent statements” were made “to third party persons,” including “co-workers, family and ‘female friends.’” Characterizing Evett’s alleged conduct as “vile” and “outrageous,” the complaint alleges Evett intended to cause, and did in fact cause, Hubbard to suffer unspecified reputational harm, as well as “severe emotional distress,” including, “severe anxiety, asthma, nervousness, depression, fear, [and] insecurity[.]” The complaint further alleges Hubbard “has incurred the loss of his relationship” and “the ability to fully function at work in his given profession as a result of [Evett’s] malicious and vile conduct.”

These causes of action were also alleged against 20 “Doe” defendants. While Evett’s employer, alleged to be Sutter Medical Group (Sutter), was not named as a party to the lawsuit, the complaint alleged under the heading “RESPONDEAT SUPERIOR” that “Evett was acting in the course and scope of employment of [Sutter]” and therefore Sutter “can be and should be held vicariously liable for [Evett’s] actions.”

The complaint sought general damages in an amount to be determined at trial, special damages “in excess of $50,000 the exact amount to be determined according to proof,” and punitive damages “in an amount of $1,000,000 to punish [Evett] and deter future misconduct.”

The same day Hubbard filed this lawsuit, Evett received a second letter from the same person purporting to be a private investigator, stating: “As my [client] proceeds against Sutter Health I suspect you will be looking for a new job. Also, once service has been completed my client intends to start the discovery process upon you and Sutter Health. That process is very expensive and time consuming. I strongly recommend that you hire a civil defense attorney. It would have been easier if you cooperated with everyone and tried to be amicable.”

Vexatious Litigant Motion

Rather than answer the complaint, Evett filed a motion in the trial court to require Hubbard to furnish security in the amount of at least $50,000 or have the case dismissed on the ground Hubbard is a vexatious litigant with no reasonable probability of prevailing in the litigation.

In order to establish Hubbard’s status as a vexatious litigant, Evett produced court documents from seven separate actions filed by Hubbard against various defendants between 2010 and 2015. Because the trial court found five of these actions were finally determined adversely to Hubbard during the immediately preceding seven-year period, and because Hubbard challenges that finding only with respect to two of those five actions (Hubbard v. Morgan, et al., Superior Court Case No. 34-2012-00127453, and Hubbard v. Moussa, et al., Superior Court Case No. 34-2013-00142489), we set forth the details of only those two actions.

In the Morgan action, filed in July 2012, Hubbard sued John Morgan and two other individuals, alleged to be doing business as Alex Padilla Bail Bonds (the company). The lawsuit arose after the company posted a bail bond in order to secure Hubbard’s release from custody in a criminal matter. That criminal matter, in turn, arose from harassing and assaultive conduct engaged in by Hubbard during the course of one of the other civil actions used to support the vexatious litigant motion; Hubbard was convicted by jury of stalking, assault with a deadly weapon, and making annoying telephone calls. (See People v. Hubbard (Feb. 27, 2012, C067576) [nonpub. opn.].) Returning to the Morgan action, Hubbard sued the defendants for breach of contract, extortion, intentional and negligent infliction of emotional distress, conversion, unlawful business practices, and unjust enrichment, seeking monetary damages in excess of $250,000 and injunctive relief. The defendants’ unopposed demurrer was sustained with leave to amend, after which the trial court dismissed the action at Hubbard’s request. That request included a declaration from Hubbard stating he was “not recovering anything of value by this action.”

In the Moussa action, filed in March 2013, Hubbard sued Sheila Moussa, Allstate Insurance Company (Allstate), Allstate Capital Auto MCO, and another individual alleged to have been a management employee of Allstate. The action arose out of a motor vehicle accident; Moussa allegedly hit Hubbard’s parked car. Hubbard asserted causes of action for negligence, professional negligence, negligent infliction of emotional distress, breach of the implied covenant of good faith and fair dealing, fraud, unlawful business practices, and breach of fiduciary duty. As in this case, Hubbard sought general damages in an amount to be determined at trial, special damages “in excess of $50,000 the exact amount to be determined according to proof,” and punitive damages “in an amount of $1,000,000 to punish the defendants and deter future misconduct.” In October 2013, at Hubbard’s request, the trial court dismissed the action against Moussa. Four months later, the trial court sustained the Allstate defendants’ demurrer without leave to amend.

Returning to the vexatious litigant motion, Evett argued the Morgan and Moussa actions, along with the other five actions not specifically described above, were finally determined adversely to Hubbard within the immediately preceding seven-year period, making Hubbard a vexatious litigant under Code of Civil Procedure section 391, subdivision (b), and requiring the furnishing of security if the trial court also determined he had no probability of prevailing in the lawsuit. (§ 391.1.) With respect to Hubbard’s probability of prevailing on the merits of the defamation cause of action, Evett argued there was no such probability because Hubbard’s complaint failed to allege either the substance of the allegedly defamatory statements or the specific individuals to whom the statements were allegedly made. With respect to IIED, Evett argued the same defects made it unlikely Hubbard would prevail on that cause of action, noting the allegations of the complaint provided no basis for the trial court to determine Evett’s conduct may reasonably be considered extreme and outrageous.

In support of the motion, Evett also submitted a declaration in which he admitted calling Hubbard “fat,” “old,” and “hella ugly” in text messages he sent to C., but denied making any other disparaging statements about Hubbard to any third party. Evett argued these statements “are non-actionable statements of opinion” for purposes of defamation liability and not so extreme and outrageous as to support a cause of action for IIED.

Hubbard’s Opposition

Hubbard opposed the motion. He argued two of the seven actions used to establish his status as a vexatious litigant were not within the immediately preceding seven-year period. With respect to the remaining five actions, Hubbard argued he prevailed in three of them. However, as mentioned, in this appeal he takes issue only with the trial court’s determination as to the Morgan and Moussa actions. Regarding the Morgan action, Hubbard argued: “In this case, plaintiff purportedly owed a balance on account to Morgan. Plaintiff had conversations with opposing counsel. Plaintiff executed a dismissal after an agreement was made that Morgan would not pursue the alleged amount due. Plaintiff prevailed.” Regarding the Moussa action, Hubbard argued: “This case is settled. Plaintiff prevailed. While prohibited from discussing the matter in detail, it should be noted plaintiff prevailed. Plaintiff executed a dismissal at opposing counsel’s office and in return plaintiff received a check. Why the dismissal was not filed is unknown to the plaintiff.”

Turning to Hubbard’s argument regarding his probability of prevailing in his lawsuit against Evett, his memorandum of points and authorities provides for the first time two statements Hubbard claimed Evett made about him. The first was, “ ‘Grandpa probably use to rape lil’ girls’ ” and the second was “to the effect that, that [Hubbard] rips off people (viz., conducts fraud) with his business.” Hubbard argued both statements “are highly offensive, patently untrue, unfounded and defamatory.” However, in Hubbard’s declaration filed in support of his opposition to the motion, he does not claim Evett made these statements. Nor did Hubbard provide a declaration from anyone else stating these comments were made by Evett.

Evett’s Reply

In reply, Evett argued Hubbard recovered nothing in the Morgan action despite seeking over $250,000 in damages and therefore “could not have prevailed.” Regarding the Moussa action, Evett argued: “Hubbard cannot be serious in contending he prevailed. He sued Allstate Insurance Company for bad faith claims handling practices, seeking compensatory damages exceeding $50,000 and punitive damages of $1 million, and was figuratively obliterated by Allstate, who had its demurrer sustained without leave to amend.”

With respect to Hubbard’s probability of prevailing, Evett argued: “In ruling on the motion, this Court is to weigh conflicting evidence to determine if the vexatious litigant will more probably than not prevail, but here, no weighing can be done because Hubbard has produced no evidence. His declaration, like his complaint, contains lots of character assassination but neither particularity regarding defamation nor the identity of anyone to whom such statements have been made. The only evidence the court has before it is Evett’s testimony about his opinions Hubbard is ‘old’, ‘fat’ and ‘hella ugly.’ The closest Hubbard comes to producing evidence comes in his points and authorities, in which he argues, on information and belief, that Evett made other statements. That is unsworn hearsay but, just as importantly, Hubbard has never identified anyone to whom disparaging comments have been made. His showing in opposition to the motion is insufficient as a matter of law and the court has no basis on which to find he has a probability of prevailing.” (Fns. omitted.)

Hearing and Ruling on the Motion

The trial court issued a tentative ruling granting the motion declaring Hubbard a vexatious litigant and requiring him to furnish security in the amount of $50,000.

A hearing was held on July 24, 2017. At the hearing, as on appeal, Hubbard took issue with the trial court’s tentative conclusion the Morgan and Moussa actions were finally determined adversely to him. Regarding the Morgan action, Hubbard argued his declaration states he received consideration for dropping the case because Morgan agreed not to seek further payment from Hubbard that Morgan claimed remained outstanding on the bail bond. As for the Moussa action, Hubbard argued he did not lose that action because he settled with Moussa before dismissing the action as against her. The trial court responded: “But the insurer — you sued the insurer when you had — you didn’t have a claim against the insurer. [¶] . . . [¶] . . . The insurer’s demurrer was sustained without leave to amend. That is not a resolution in your favor on the merits.” Hubbard asked: “So we’re going to parse the case?” The trial court replied: “Yes, because if you sued 10 people and you recover from one and the other nine were spurious, it’s still nine spurious separate lawsuits. Absolutely.”

Addressing Hubbard’s probability of prevailing in the litigation against Evett, the trial court stated: “[D]o I have evidence of a likelihood that you could prevail on the claims, and I really don’t. That is a bigger problem.” Hubbard responded: “How is that, your Honor? I mean, for — the defendant in this case concedes that he can’t seem to close his mouth for longer than a week. I sat there with [defendant], and I said, ‘Hey, all you have to do is quit talking about us, specifically me and my business, and I’ll dismiss the case.’ ” The trial court explained the problem was a lack of evidence that Evett made defamatory statements to third parties, adding: “I need — did you give me a declaration from anybody else that this gentleman made statements to them of any kind? No. I have your declaration as to what he told to you or — that would not be defamation. As to what you heard from other people, it’s all hearsay. I have no evidence. None.”

At the close of the hearing, the trial court confirmed the tentative ruling and thereafter issued an order declaring Hubbard a vexatious litigant and requiring him to furnish security in the amount of $50,000 by August 4, 2017. When Hubbard failed to furnish the required security by that date, Evett moved to dismiss the lawsuit under section 391.4. The trial court dismissed the lawsuit on August 18, 2017. Hubbard appeals.

DISCUSSION

I

Standard of Review

“A vexatious litigant may be required to furnish security if the trial court determines there is no reasonable probability he or she will prevail. (§§ 391.1, 391.3.) Failure to do so results in dismissal. (§ 391.4.)” (Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 783 (Moran), fns. omitted.) Thus, the granting of a defendant’s motion to require security under section 391.1 requires the trial court to determine (1) the plaintiff is a vexatious litigant, and (2) he or she has no reasonable probability of prevailing in the litigation.

We elucidate these elements later in the opinion. For now, we note the trial 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. [Citation.]” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265 (Goodrich); Moran, supra, 40 Cal.4th at p. 786.)

We review both of these determinations for substantial evidence. “Because the trial court is best situated to receive evidence and hold hearings on the question of whether a litigant is vexatious, on appeal, we are required to presume the order declaring a litigant vexatious is correct and to imply findings necessary to support that designation. [Citation.]” (Morton v. Wagner (2007) 156 Cal.App.4th 963, 969.) “Of course, we can only imply such findings when there is evidence to support them. When there is insufficient evidence in support of the designation, reversal is required.” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 636.) Similarly, the trial 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” and must be upheld on appeal “[i]f there is any substantial evidence to support the court’s determination.” (Ibid.)

II

Analysis

With the foregoing standard in mind we turn to the dispositive questions raised in this appeal and conclude substantial evidence supports the trial court’s determination that Hubbard is a vexatious litigant with no reasonable probability of prevailing in his lawsuit against Evett.

A.

Vexatious Litigant Determination

The term “vexatious litigant” is defined in section 391. As relevant to this appeal, it means a person who, “[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 (i) finally determined adversely to the person . . . .” (§ 391, subd. (b)(1).)

“The term ‘ “[l]itigation” ’ is defined broadly as ‘any civil action or proceeding, commenced, maintained or pending in any state or federal court.’ [Citation.] . . . A litigation is finally determined adversely to a plaintiff if he [or she] does not win the action or proceeding he [or she] began, including cases that are voluntarily dismissed by a plaintiff. [Citations.]” (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406-407.) “Only where the dismissal leaves some doubt regarding the defendant’s liability, as where the dismissal is part of a negotiated settlement, will the dismissal not be deemed a termination favorable to the defendant.” (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779-780 (Tokerud).)

Here, Hubbard voluntarily dismissed the Morgan action after the trial court sustained the defendants’ demurrer with leave to amend. While he now claims the dismissal was part of a settlement, as previously stated, Hubbard filed a declaration along with the request for dismissal stating he was “not recovering anything of value by this action.” Moreover, aside from Hubbard’s declaration filed in opposition to the motion for security, in which he proclaimed he “prevailed” in the Morgan action because “an agreement was made that Morgan would not pursue the alleged amount due” on the bail bond, Hubbard provided no evidence supporting the existence of such a settlement agreement. The trial court “was free to discount [Hubbard’s] self-serving statement” (Tokerud, supra, 38 Cal.App.4th at p. 780), particularly where it was contradicted by his own contemporaneous statement admitting he received nothing of value in exchange for dismissing the Morgan action.

Turning to the Moussa action, Hubbard again relies on his declaration, in which he stated he “prevailed in settlement.” This may be true with respect to his action against Moussa. However, that action was dismissed in October 2013. Hubbard thereafter maintained the litigation still pending against the Allstate defendants for four months. As previously noted, “litigation” for purposes of the vexatious litigant statutes “is defined broadly as ‘any civil action or proceeding, commenced, maintained or pending in any state or federal court.’ ” (Garcia v. Lacey, supra, 231 Cal.App.4th at p. 406, italics added.) After Hubbard maintained his baseless lawsuit against the Allstate defendants for four months, their demurrer was sustained without leave to amend. Substantial evidence supports the trial court’s conclusion this litigation was finally determined adversely to Hubbard.

In addition to the statutory definition, the determination that a plaintiff is a vexatious litigant must also comport with the purpose of the vexatious litigant statutes. (Goodrich, supra, 246 Cal.App.4th at p. 1265.) “ ‘The vexatious litigant statutes were enacted to require a person found a vexatious litigant to put up security for the reasonable expenses of a defendant who becomes the target of one of these obsessive and persistent litigants whose conduct can cause serious financial results to the unfortunate object of his [or her] attack.’ [Citation.] ‘The constant suer . . . becomes a serious problem to others than the defendant he [or she] dogs. By clogging court calendars, [such a plaintiff] causes real detriment to those who have legitimate controversies to be determined and to the taxpayers who must provide the courts.’ [Citation.]” (Tokerud, supra, 38 Cal.App.4th at p. 779.) We have no difficulty affirming the trial court’s implied finding Hubbard falls within the purpose of these statutes.

B.

Probability of Prevailing in the Litigation

We also conclude the trial court’s determination Hubbard has no probability of prevailing in the present lawsuit against Evett is supported by substantial evidence.

“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) Thus, “an essential element of defamation [is] that the publication be of a false statement of fact rather than opinion.” (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1181.)

Here, Hubbard’s complaint does not set forth the content of Evett’s allegedly defamatory statements. Evett, however, in support of his motion to require security, states in a declaration that the only disparaging remarks he made to anyone about Hubbard were that he is “old,” “fat,” and “hella ugly.” Any competent law student would recognize these remarks as opinions, not statements of fact. (See DeSimone, Insta-Famous: Challenges and Obstacles Facing Bloggers and Social Media Personalities in Defamation Cases (2018) 11 Mod. Am. 70, 90 [“calling someone ‘fat,’ ‘ugly,’ ‘stupid,’ and so forth is not something that can be proved in fact”].) In response to the motion, Hubbard provided no evidence supporting his argument that Evett made other defamatory statements to third persons. Accordingly, there was no evidence from which the trial court could have concluded Hubbard had a probability of prevailing on the merits of his defamation claim.

The same analysis also applies to Hubbard’s IIED claim. This tort has three elements: “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. . . .” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) Hubbard’s assertion that Evett’s conduct was extreme and outrageous is based on Evett’s alleged utterance of defamatory statements. But again, the only statements made by Evett that are supported by evidence are Evett’s opinion that Hubbard is “old,” “fat,” and “hella ugly.” Such statements, while rude, do not come close to exceeding the bounds of civilized society.

In sum, the trial court’s determination that Hubbard is a vexatious litigant with no probability of prevailing in the present lawsuit against Evett is supported by substantial evidence.

DISPOSITION

The judgment dismissing Donald Hubbard’s lawsuit against Cody Evett is affirmed. Cody Evett is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

/s/

HOCH, J.

We concur:

/s/

MURRAY, Acting P. J.

/s/

DUARTE, J.