Filed 2/26/20 Daniels v. Roddy 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DIANE DANIELS,

Plaintiff and Appellant,

v.

MICHAEL RODDY et al.,

Defendants and Respondents.

D075034

(Super. Ct. No. 37-2018-00033427-
CU-FR-CTL)

APPEAL from an order and judgment of the Superior Court of San Diego County, Nathan R. Scott, Judge. (Judge of the Orange Sup. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Diane Daniels, in pro. per., for Plaintiff and Appellant.

Best Best & Krieger, James B. Gilpin and Matthew L. Green, for Defendants and Respondents.

Plaintiff Diane Daniels filed a lawsuit against various parties, including (as relevant here) Michael Roddy, the executive officer and clerk of the San Diego County Superior Court, and Timothy Walsh, a judge in that court. Daniels asserted four causes of action for “tax evasion,” “violation of unalienable rights,” breach of contract, and fraud, all apparently arising from her arrest, conviction, and sentencing in two criminal proceedings presided over by Judge Walsh.

Roddy and Judge Walsh moved for an order declaring Daniels a vexatious litigant, imposing prefiling requirements for new litigation, and requiring her to post $5,000 security to avoid dismissal of her action. (Code Civ. Proc., §§ 391.1, 391.7.) The trial court granted the motion. When Daniels failed to post the security, the trial court dismissed the action with prejudice.

Daniels appeals. Although her notice of appeal identifies only the order declaring her a vexatious litigant, and not the subsequent dismissal of her lawsuit, we will construe her premature notice of appeal to cover both. (Childs v. PaineWebber Inc. (1994) 29 Cal.App.4th 982, 985, fn. 1 (Childs); see In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1347 (Rifkin & Carty).) On the merits, we conclude Daniels has not shown reversible error. We therefore affirm both the vexatious litigant order and the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The allegations in Daniels’s operative complaint are difficult to decipher. In general, she appears to allege that agents of the state and federal governments have no authority over her and therefore various police encounters and criminal proceedings violated her rights. The allegations are dense with nonsensical legalese. For example, in describing a certain criminal hearing, Daniels alleges, “TIMOTHY ROBERT WALSH, trustee, usurped the role of Executor without consent, forced me into a trustee role, and refused to release me from custody, a forced agreement, under duress. . . . The Court had no jurisdictions, and the third request for 1099OID a margin call, TIMOTHY ROBERT WALSH, trustee, of the Court, continued proceedings, and evaded taxes owed, tax evasion, because TIMOTHY ROBERT WALSH, trustee, of the Court, without consent, used funds from my trust, and had not registered the security, so there was no surety bond in place.” (Grammar, capitalization, and emphasis in original.)

Based on her allegations, Daniels asserted four causes of action. The first cause of action for “tax evasion” alleged, “Defendants had a fiduciary duty to obtain consent before use of my account, to notify INTERNAL REVENUE SERVICE, Securities Exchange Commission of the securities, and willful failure to evade taxes.” The second cause of action for “violation of unalienable rights” alleged, “Defendants had a fiduciary duty to obtain consent before use of account, to notify INTERNAL REVENUE SERVICE, SECURITIES EXCHANGE COMMISSION of the securities, and by failure to do so willful and malicious tax fraud, tax evasion, failure to report, failure to pay, file return, unreported income, public corruption.” The third cause of action for breach of contract alleged, “Defendants breach of contract, did not put up a surety bond, forged signatures, entered contracts without our knowledge, no full disclosure, false documents, I demanded a surety bond, TIMOTHY ROBERT WALSH, trustee, ORDERED a competency hearing, and violated fiduciary duty to be honest, and created a contract without consent, and without consent, entered plaintiff into contract. Defendants utilized that contract to violate I, Diane Deliah of family Daniels unalienable rights, and plaintiff DIANE DELIAH DANIELS rights.” The final cause of action for fraud alleged, “Defendants did not provide full disclosure and voided any and all potential contracts by way of fraud.” (All grammar and capitalization in original.)

Daniels’s complaint further alleged, by way of explanation, “I was to assist the U.S. Corporation with the debt, and as the Authorized Representative for my trust account, I offered to discharge the debt, to settle and close the account on behalf of the Trust. TIMOTHY ROBERT WALSH, trustee, refused to honor the offer of settlement and closure of the account. TIMOTHY ROBERT WALSH, trustee, has placed the Court in commercial dishonor with recourse. [¶] The UCC is contract law in its strongest most evil form, for it strips the American of all his/her God given, Constitutionally protected Rights, and judges him/her as a false entity, a corporation, and a slave. The UCC does not recognize or account for the fact that sovereignty lies with the people, only according to Admiralty (Commercial) law. So what the UCC attempts to do is to trick an American into giving his Rights up to a contract. However, UCC 1-308, all rights are reserved.” (Grammar and capitalization in original.)

As noted, Roddy and Judge Walsh moved for an order declaring Daniels a vexatious litigant, imposing prefiling requirements for new litigation, and requiring her to post $5,000 security to avoid dismissal of her action. They identified 17 litigations Daniels filed in propria persona that had been finally determined adversely to her in the last seven years. And, in this litigation, they argued that there was no reasonable probability Daniels would prevail on her claims. Judge Walsh enjoyed judicial immunity for any acts alleged in the complaint, and the complaint failed to state a claim for relief against Roddy or Judge Walsh in any event. Roddy and Judge Walsh requested judicial notice of the sentencing orders in Daniels’s two criminal proceedings, as well as records relating to the disposition of the 17 litigations identified in the motion.

Daniels did not file a timely opposition to the motion. In advance of the hearing, however, she filed a memorandum of points and authorities and request for judicial notice. The memorandum focused on an allegedly wrongful foreclosure and Daniels’s subsequent arrest. The request for judicial notice covered various documents related to property Daniels owned, as well as Daniels’s voluntary cancellation of her driver’s license, a purported letter from the “United States Department of Travel” to the Governor of California, an “Affidavit of Denial of Contract and License Third Party Attorney” signed by Daniels, and various discovery requests, among other things.

At the hearing, after oral argument, the trial court granted the motion and the request for judicial notice filed by Roddy and Judge Walsh. It declared Daniels a vexatious litigant, found that she had no reasonable probability of prevailing on her claims, and required her to post security in the amount of $5,000 within 30 days. It issued an order prohibiting Daniels from filing any new litigation in propria persona without leave of the presiding judge or justice. The court also denied an ex parte application filed by Daniels to amend her complaint.

Daniels filed an “objection” to the court’s order, but she did not post the required security. The court therefore dismissed her complaint with prejudice and entered judgment against Daniels. As described above, Daniels filed her notice of appeal after the vexatious litigant order but before the court dismissed the action. We will construe the premature notice of appeal to cover both the vexatious litigant order and the dismissal. (Childs, supra, 29 Cal.App.4th at p. 985, fn. 1; see Rifkin & Carty, supra, 234 Cal.App.4th at p. 1347.)

DISCUSSION

I
Standards of Appellate Briefing and Review

Daniels represents herself in this appeal. “Under the law, a party may choose to act as his or her own attorney. [Citations.] ‘[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Daniels has not followed the rules of appellate procedure, and her briefing is insufficient to demonstrate any error. We therefore affirm the judgment.

” ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’ ” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) This requirement applies to legal authority and factual matters in the record. “It is not the duty of a reviewing court to search the record for evidence on a point raised by a party whose brief makes no reference to the pages where the evidence can be found.” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011.)

“This burden requires more than a mere assertion that the judgment is wrong. ‘Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.’ [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)

Even where an appellant cites general legal principles in support of certain arguments, these principles do not in and of themselves demonstrate error. “Mere suggestions of error without supporting argument or authority other than general abstract principles do not properly present grounds for appellate review. The court is not required to make an independent, unassisted study of the record in search of error. The point is treated as waived and we pass it without further consideration.” (Dept. of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078.) ” ‘We are not bound to develop appellants’ arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.’ ” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)

Daniels’s briefing does not satisfy these minimum standards. Her briefing contains numerous factual allegations, but they are almost always unaccompanied by any citation to the record. Large portions of her briefing are devoted to irrelevant matters, including allegations against defendants other than Roddy and Judge Walsh. Her legal analysis proceeds in a manner consistent with the allegations of the complaint quoted above, and large portions are incomprehensible.

For these reasons, “[w]e consider all points asserted in this appeal to be forfeited as unsupported by ‘adequate factual or legal analysis.’ ” (Singh v. Lipworth (2014) 227 Cal.App.4th 813, 817.) Nonetheless, despite this forfeiture, we attempt in the following parts to identify the issues Daniels raises, assess them on their merits, and explain why she has not demonstrated error.

II
Vexatious Litigant Order and Dismissal

“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 (Shalant).) The statutes define a vexatious litigant as, among other things, a person who has commenced, prosecuted, or maintained at least five litigations in propria persona, in the past seven years, that have been 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.’ (§ 391, subd. (a).) A litigation includes an appeal or civil writ proceeding filed in an appellate court. [Citations.] A litigation is finally determined adversely to a plaintiff if he does not win the action or proceeding he began, including cases that are voluntarily dismissed by a plaintiff.” (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406 (Garcia); see Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1172 [distinguishing types of writ proceedings].)

“[O]ur vexatious litigant statutes provide courts and nonvexatious litigants with two distinct and complementary sets of remedies. In pending litigation, a defendant may have the plaintiff declared a vexatious litigant and, if the plaintiff has no reasonable probability of prevailing, ordered to furnish security. If the plaintiff fails to furnish the security, the action will be dismissed. (§§ 391.1-391.6.) In addition, a potential defendant may prevent the vexatious litigant plaintiff from filing any new litigation in propria persona by obtaining a prefiling order and, if any new litigation is inadvertently permitted to be filed in propria persona without the presiding judge’s permission, may then obtain its dismissal. (§ 391.7.)” (Shalant, supra, 51 Cal.4th at p. 1171.)

” ‘A court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] 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.]’ [Citations.] Similarly, a court’s decision that a vexatious litigant does not have a reasonable probability of success is based on an evaluative judgment in which the court is permitted to weigh evidence. [Citation.] A trial court’s conclusion that a vexatious litigant must post security does not, as with a demurrer, terminate the action or preclude a trial on the merits. Rather, it merely requires the party to post security. Accordingly, if there is any substantial evidence to support a trial court’s conclusion that a vexatious litigant had no reasonable probability of prevailing in the action, it will be upheld.” (Garcia, supra, 231 Cal.App.4th at pp. 407-408.)

Daniels appears to contend the court erred by finding that she was a vexatious litigant because she had commenced, prosecuted, or maintained at least five litigations in propria persona, in the past seven years, that had been finally determined adversely to her. (§ 391, subd. (b)(1).) We conclude she has not shown error. She does not specifically address any of the 17 litigations identified by Roddy and Judge Walsh. She generally claims that all of the identified litigations had merit. But that claim does not address the basis for the court’s vexatious litigant determination, which requires a showing that the litigations were finally determined adversely to her. Daniels cites section 412.20 regarding service of summons, but that statute has no bearing on the vexatious litigant determination either.

Daniels relies on a tentative ruling in another lawsuit, where a trial court found that the defendant had not shown that Daniels was a vexatious litigant. It does not appear that this tentative ruling was presented to the trial court, and Daniels has not filed a request for judicial notice or attempted in any other proper manner to bring the tentative ruling to our attention in this proceeding. We therefore will not consider it. (See Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 [“As a general rule, documents not before the trial court cannot be included as part of the record on appeal and thus must be disregarded as beyond the scope of appellate review.”].) Even if we were to consider the tentative ruling, it has no relevance here. Among other things, it involved a different factual record (seven litigations, instead of the 17 litigations at issue here), and it would not be binding on the trial court in this matter in any event.

Daniels also appears to contend the court erred by finding that she had no reasonable probability of prevailing on her claims against Roddy and Judge Walsh. Daniels’s allegations against Judge Walsh, both in her complaint and as described in her briefing on appeal, arise from his conduct as the judicial officer presiding over Daniels’s criminal proceedings. As a general matter, Judge Walsh is immune from suit based on such conduct. “It is well established judges are granted immunity from civil suit in the exercise of their judicial functions. [Citations.] This rule applies even where the judge’s acts are alleged to have been done maliciously and corruptly. [Citations.] The rule is based on ‘ “a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself.” ‘ [Citation.] Judicial immunity is a principle of common law which is necessary for the welfare of the state and the peace and happiness of society.” (Frost v. Geernaert (1988) 200 Cal.App.3d 1104, 1107-1108; accord, Regan v. Price (2005) 131 Cal.App.4th 1491, 1495.)

Daniels appears to argue that judicial immunity should not apply because Judge Walsh acted without jurisdiction over her. While a judicial officer does not lose immunity for actions in excess of jurisdiction (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 851 (Howard)), the officer may be held liable for “actions, though judicial in nature, taken in the complete absence of all jurisdiction” (Soliz v. Williams (1999) 74 Cal.App.4th 577, 592). Daniels has forfeited this argument on appeal because she did not present it to the trial court. (See City of San Diego v. Rider (1996) 47 Cal.App.4th 1473, 1493 [“A new theory on appeal is . . . waived when the new theory involves a controverted factual situation not put in issue below.”].) Even considering its merits, however, we conclude Daniels has not shown error. The superior court, Judge Walsh presiding, had subject matter jurisdiction over the criminal proceedings involving Daniels. (See Cal. Const., art. VI, § 10; see also In re Gamo (1932) 122 Cal.App. 725, 726-727 [interpreting prior constitutional provisions].) And, because Daniels has not shown the charged crimes occurred anywhere other than in California, the superior court had personal jurisdiction over Daniels as well. (See Pen. Code, § 27; People v. Crew (2003) 31 Cal.4th 822, 834 [“California courts have criminal jurisdiction over anyone who commits a crime in whole or in part within this state . . . .”].) Daniels has not shown that Judge Walsh acted in the complete absence of all jurisdiction. Judge Walsh therefore enjoys judicial immunity, which is a complete defense to Daniels’s claims. Daniels has not shown the trial court erred by finding that she did not have a reasonable probability of prevailing on those claims.

Daniels’s allegations against Roddy lack specificity. Her operative complaint alleges that Roddy was a “co-conspirator,” but it does not describe his alleged involvement in any of the circumstances underlying her causes of action. Her appellate briefing asserts that Roddy, as executive officer of the San Diego County Superior Court, is vicariously liable for the actions of its employees, agents, and representatives under the doctrine of respondeat superior. Her briefing does not provide any factual basis for such liability, however, and she does not persuasively explain why the court erred by finding that she had no reasonable probability of prevailing on her claims against Roddy. To the extent her claims are based on his involvement as an official of the superior court in the criminal proceedings against Daniels, they are barred by quasi-judicial immunity. (See Howard, supra, 222 Cal.App.3d at pp. 852-853; see also Moore v. Brewster (9th Cir. 1996) 96 F.3d 1240, 1244; Mullis v. United States Bankruptcy Court (9th Cir. 1987) 828 F.2d 1385, 1390 [“Court clerks have absolute quasi-judicial immunity from damages for civil rights violations when they perform tasks that are an integral part of the judicial process.”].) To the extent her claims are based on other actions, Daniels has neither articulated a coherent theory of liability nor substantiated any such theory with evidence. She has not shown the trial court erred by finding that she did not have a reasonable probability of prevailing on her claims against Roddy.

In sum, Daniels has not shown the trial court erred by declaring her a vexatious litigant under section 391, finding she had no reasonable probability of prevailing on her claims against Roddy and Judge Walsh, and requiring her to post a $5,000 bond to proceed. Because Daniels does not dispute that she did not post the required bond, she has likewise failed to show the court erred by dismissing these claims.

III
Ex Parte Application for Leave to Amend

Daniels separately appears to contend that the court erred by denying her ex parte application for leave to amend her complaint. The record on appeal does not include the ex parte application or the reporter’s transcript of the relevant hearing. As the appellant, Daniels bears the burden of presenting an adequate record for our review. (Jameson v. Desta (2018) 5 Cal.5th 594, 609; Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.) She has not done so, so we may affirm the judgment without reaching the merits of Daniels’s contention.

Even if we were to reach the merits, and consider the allegations in her opening appellate brief as her proffered amendment, we would conclude Daniels has failed to show error because the allegations do not state any viable claim for relief against Roddy or Judge Walsh for reasons we have already discussed. (See Cal. Casualty General Insurance Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280 [“[T]he failure of a proposed amendment to state facts sufficient to constitute a cause of action or defense may support an order denying a motion to amend.”]; see also Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1504.) In light of our conclusion, we need not decide whether the ex parte application was also properly denied because it was not made by noticed motion (see Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613) or because it violated the vexatious litigant statute’s mandatory stay (§ 391.6), as Roddy and Judge Walsh contend.

DISPOSITION

The order and judgment are affirmed.

GUERRERO, J.

WE CONCUR:

HALLER, Acting P. J.

DATO, J.