Filed 12/31/19 Schrubb v. Arzaga CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

KEVIN R. SCHRUBB,

Plaintiff and Appellant,

v.

A. ARZAGA et al.,

Defendants and Respondents.

A153830

(Marin County

Super. Ct. No. CIV 1702848)

Kevin Ray Schrubb, an incarcerated litigant, appeals from a determination that he is a vexatious litigant. (Code Civ. Proc., § 391 et seq.) The trial court found that in the preceding seven-year period, Schrubb had commenced or maintained in pro per seven litigations other than small claims actions that had been finally determined against him. On appeal, Schrubb argues that six of those litigations should not have counted against him because one involved his automatic right to appeal in the federal courts, and the others were dismissed as a result of misconduct by state prison employees. He further contends that one of the dismissed litigations was not finally determined adversely to him because the same claim remains pending in another litigation.

In making these contentions, Schrubb raises the issues for the first time on appeal and relies on new facts and evidence that were not presented to the trial court. We refuse to consider Schrubb’s new evidence or make findings of fact on appeal because Schrubb has not demonstrated exceptional circumstances for us to do so. We further conclude that Schrubb forfeited his current contentions on appeal, and in any event, they lack merit. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Schrubb is an inmate housed at San Quentin State Prison. In July 2017, he filed a complaint in Marin County for personal injury, civil rights violations, and declaratory relief. He alleged that respondents W. Givens and A. Arzaga, employees of the California Department of Corrections and Rehabilitation, violated his constitutional rights by refusing to allow him to leave the prison’s medical wing until after he was seen by a medical provider.

In late October 2017, respondents moved to declare Schrubb a vexatious litigant and to require him to furnish a security before proceeding further with this action. Respondents also sought a prefiling order prohibiting Schrubb from filing any litigation without prior approval.

The hearing on the motion was initially scheduled for November 28, 2018. Schrubb moved for a 90-day continuance and an extension of time to respond to the motion on the grounds that prison regulations prevented him from having all of his legal documents in his cell, and he needed more time to locate relevant documents to respond to the motion. He further indicated he suffered from medical conditions in his hand that caused him pain and prevented him from writing.

The trial court denied Schrubb’s request for a 90-day continuance but continued the hearing on its own motion to December 5, 2017. Schrubb never filed an opposition to the motion, nor did he appear telephonically at the continued hearing. The trial court found that Schrubb was a vexatious litigant because in the immediately preceding seven-year period, he had commenced or maintained the following seven litigations in pro per that were finally determined adversely to him:

1. Schrubb v. Tilton (N.D. Cal., No. 3:08-02986-TEH) (Schrubb I)—a pro per action by Schrubb under section 1983 of title 42 of the United States Code. The case was dismissed by summary judgment in favor of defendants in August 2014.

2. Schrubb v. Tilton (9th Cir., No. 14-16823) (Schrubb II)—a pro per appeal of Schrubb I. The Ninth Circuit affirmed the district court’s dismissal of Schrubb I.

3. Schrubb v. Tilton (N.D. Cal., No. 3:09-cv-02197) (Schrubb III)—a pro per action by Schrubb against unnamed defendants for deprivation of personal property and violation of the Eighth Amendment. In February 2011, the court dismissed the property claim with prejudice and the Eighth Amendment claim without prejudice to filing a new complaint in a new case naming the responsible defendants.

4. Schrubb v. Tilton (9th Cir., No. 12-15249) (Schrubb IV)—a pro per appeal of Schrubb III. In May 2012, the Ninth Circuit granted Schrubb’s motion for voluntary dismissal of the appeal.

5. In re Kevin Ray Schrubb (Bankr. C.D. Cal., No. 9:14-bk-10128-PC) (Schrubb V)—a pro per bankruptcy petition. In February 2014, the bankruptcy court dismissed the case after Schrubb failed to cure commencement deficiencies in the petition. Schrubb appealed from the dismissal order and also moved to vacate the order, claiming he never received documentation regarding the deficiencies in the petition. The bankruptcy court denied the motion to vacate, finding that the filing of a notice of appeal divested the court of jurisdiction to vacate the dismissal order. The court later denied Schrubb’s motion for reconsideration of the dismissal of his motion to vacate.

6. In re Kevin R. Schrubb (C.D. Cal., No. CV 14-2955-PA) (Schrubb VI)—a pro per appeal of Schrubb V. In May 2014, the district court granted Schrubb’s motion for voluntary dismissal of the appeal.

7. In re Kevin R. Schrubb (C.D. Cal., No. 14-06348 CJC) (Schrubb VII)—a pro per appeal of the denial in Schrubb V of Schrubb’s motion to reconsider the dismissal of the motion to vacate. In August 2014, the court dismissed the appeal due to Schrubb’s failure to pay a filing fee.

The trial court further found that Schrubb had no reasonable probability of proving his claims for intentional infliction of emotional distress and violations of federal due process and the Eighth Amendment arising out of defendants’ conduct of temporarily detaining him in the medical clinic. The court issued a prefiling order and ordered Schrubb to post security in the amount of $8,670.00 by January 11, 2018. The court further ordered Schrubb to appear on January 11, 2018, to show proof that he had posted the security or to show cause why the action should not be dismissed.

Schrubb moved to continue the January 11 hearing, and the hearing was continued to January 30, 2018. Once again, however, Schrubb failed make a telephonic appearance at the hearing. The trial court found that Schrubb had failed to post the security and to show cause why the case should not be dismissed. Accordingly, the action was dismissed.

Schrubb timely appealed.

DISCUSSION

The vexatious litigant statutes “ ‘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.’ ” (In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1345.) A “vexatious litigant” is defined in relevant part as 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 small claims court that have been . . . finally determined adversely to the person.” (§ 391, subd. (b)(1).) A trial court exercises its discretion in determining whether a person is a vexatious litigant, and that ruling will be upheld if it is supported by substantial evidence. (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1498–1499.)

The vexatious litigant statutes provide two remedies: (1) an order requiring the plaintiff to furnish a security (§ 391.3); and (2) a prefiling order prohibiting the plaintiff from filing new pro per litigation without first obtaining leave of the presiding judge where the litigation is to be filed (§ 391.7). To require a security, the trial court must determine that the plaintiff is a vexatious litigant within the meaning of the statute, and that there is no reasonable probability that he or she will prevail on the merits in the action. (§ 391.3.) Failure to provide the security is grounds for dismissal. (§ 391.4.)

The crux of Schrubb’s appeal is that most of the litigations relied upon by the trial court to declare him a vexatious litigant should not have been counted. That is, he contends their adverse outcomes were caused by the interference of state prison employees who (1) refused to identify the defendants responsible for harming Schrubb; (2) withheld records; and/or (3) interfered with his receipt of mail from the court. Schrubb further claims that Schrubb III has not been determined adversely to him because it is “currently pending” in the Ninth Circuit under the case name Schrubb v. Lopez.

Schrubb did not present any of these arguments to the trial court. He did not even file an opposition brief or appear at the hearing on the motion. The failure to present arguments to the trial court generally results in forfeiture on appeal. (Vikco Insurance Services, Inc. v. Ohio Indemnity Company (1999) 70 Cal.App.4th 55, 66–67 (Vikco).) Even more problematic is Schrubb’s reliance on new facts and evidence regarding the prison employees’ alleged misconduct, which were never presented to the trial court below. He attempts to introduce most of these facts on appeal through a judicial notice request contained in his appendix.

In so doing, Schrubb ignores the “essential distinction between the trial and the appellate court.” (Tupman v. Haberkern (1929) 208 Cal. 256, 262–263.) An appellate court “ ‘reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’ ” (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Reviewing courts generally do not take judicial notice of evidence not presented to the trial court except under “exceptional circumstances.” (Vons Companies, Inc v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 (Vons).) While appellate courts have authority to make findings of fact by Code of Civil Procedure section 909 and rule 8.252 of the California Rules of Court, Schrubb did not file the requisite motion (ibid.), and in any event, such authority must be exercised “sparingly” and only under “exceptional circumstances.” (Hill v. San Jose Family Housing Partners, LLC (2011) 198 Cal.App.4th 764, 769–770.) Specifically, “the evidence normally must enable the Court of Appeal to affirm the judgment, not lead to a reversal. [Citations.] The power to take evidence in the Court of Appeal is never used where there is conflicting evidence in the record and substantial evidence supports the trial court’s findings.” (Philippine Exp. & Foreign Loan Guar. Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1090 (Chuidian).)

After respondents pointed out the flaws in this appeal, Schrubb attempted, for the first time in his reply brief, to explain his failure to present his arguments and evidence to the trial court. Schrubb reiterates the arguments he made below in his continuance motions, i.e., he was not in immediate possession of his records due to prison regulations, and he was hampered from writing by medical conditions in his hand. Schrubb further contends that he was prohibited from attending the hearings by the actions of prison staff, and that the trial court abused its discretion in refusing to allow him additional time to present his defense.

Schrubb cites no authority supporting his position that the trial court’s refusal to grant him additional time to marshal his evidence constitutes “exceptional circumstances” warranting our consideration of new evidence on appeal. He offers the new evidence in an effort to reverse the trial court’s decision, despite substantial evidence in the record supporting the trial court’s ruling, as discussed more fully below. The power to take evidence on appeal is never used in such circumstances. (See Chuidian, supra, 218 Cal.App.3d at p. 1090.) Accordingly, we deny Schrubb’s request to receive new evidence and make factual findings on appeal.

We also deny, in substantial part, Schrubb’s request for judicial notice. Schrubb seeks judicial notice of 35 of the 46 exhibits in his appendix pursuant to Evidence Code section 452, subdivision (d), which permits judicial notice of state and federal court records. Those exhibits are numbered 1 through 3, 5, 6, 11 through 15, 17, 18, 20, 21, 23 through 34, 36, 37, 39, 40 through 43, 45, and 46. Of these, exhibits 12 through 36, 39, 40, 42 (pages 2 through 4), 43 (page 3), 44, 45 (page 2), and 46 were not presented to the trial court, and Schrubb has not shown “exceptional circumstances” for us to depart from the general rule prohibiting judicial notice of evidence not presented to the trial court. (Vons, supra, 14 Cal.4th at p. 444, fn. 3.)

Additional reasons counsel against judicial notice of the exhibits not presented to the trial court. Exhibits 15, 21, 23, 25, 27, and 30, though ostensibly court filings by Schrubb, are not certified copies and lack a conformed file stamp or other evidence of reliability required for taking judicial notice of court records. (Wolf v. CDS Devco (2010) 185 Cal.App.4th 903, 914–915.) Exhibits 20 and 34 appear to be correspondence between Schrubb and prison officials, not court records, and Schrubb cites no additional authority supporting judicial notice of these documents. As to the remaining exhibits, Schrubb improperly seeks judicial notice of the contents of these records to establish that third-party interference was the true cause of the adverse outcomes in the prior litigations. Courts may not take judicial notice of the truth of hearsay statements in decisions and court files. (See Barri v. Workers’ Comp. Appeals Bd. (2018) 28 Cal.App.5th 428, 437.)

For the foregoing reasons, we grant, in part, the request for judicial notice as to the existence of the court records contained in exhibits 1 through 3, 5, 6, 11, 37, 41, 42 (page 1), 43 (pages 1 and 2), and 45 (page 1) to the appendix. (Evid. Code, § 452, subd. (d).) We deny the request as to the remaining exhibits.

As for Schrubb’s failure to present the arguments on appeal in the trial court below, we treat the arguments as forfeited. (Vikco, supra, 70 Cal.App.4th at pp. 66–67.) And even if we were to consider the appeal on the merits, the record reveals substantial evidence supporting the correctness of trial court’s ruling, for the reasons discussed below.

A. Schrubb II
B.
Schrubb does not dispute that Schrubb I properly counted towards his vexatious litigant status. He argues, however, that the trial court erred in relying on Schrubb II because it involved the exercise of his federal right to appeal the dismissal in Schrubb I. This argument is meritless.

Under the vexatious litigant statutes, a “litigation” refers to “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” (§ 391, subd. (a).) This includes an appeal filed in an appellate court. (In re R.H. (2009) 170 Cal.App.4th 678, 691–692, disapproved on other grounds in John v. Superior Court (2016) 63 Cal.4th 91, 99, fn. 2.) Schrubb’s reliance on general authorities establishing the right to appeal in the federal courts (28 U.S.C. § 1291; rule 3 of the Federal Rules of Appellate Procedure) is unavailing as these authorities do not discuss any impact of the exercise of that right on state vexatious litigant laws. Schrubb demonstrates no conflict between the exercise of the right to appeal in federal courts and the use of such litigations to determine vexatious litigant status under California law, as federal courts are also empowered to issue injunctive relief against vexatious litigants. (28 U.S.C. § 1651(a); De Long v. Hennessey (9th Cir. 1990) 912 F.2d 1144, 1147.)

The undisputed evidence showed that Schrubb II was a non-small-claims action filed by Schrubb in pro per that was adversely determined against him when the Ninth Circuit affirmed the district court’s grant of summary judgment in favor of the defendants. This was substantial evidence supporting the trial court’s finding that Schrubb II was a qualifying litigation.

C. Schrubb V, VI, and VII
D.
Schrubb argues that the bankruptcy proceedings in Schrubb V, VI, and VII should not have counted against him because the adverse outcomes in these actions were due to the interference of mail room employees that prevented Schrubb from receiving notice of the deficiencies in his petition. We are not persuaded.

A litigation is determined “adversely” to a plaintiff if he or she does not win the action or proceeding he or she began (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406), and the litigation is “finally determined” when all avenues for direct review have been exhausted or the time for appeal has expired (Childs, supra, 29 Cal.App.4th at pp. 993–994.) A voluntarily dismissed action can be used against a vexatious litigant, as it is “nevertheless a burden on the target of the litigation and the judicial system. . . . A party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the actions through to completion.” (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779 (Tokerud).)

Substantial evidence supports the trial court’s determination that Schrubb V, VI, and VII were qualifying litigations finally determined adversely to Schrubb. In Schrubb V, Schrubb filed an incomplete bankruptcy petition and failed to cure the deficiencies, resulting in dismissal of the action. He did not win his appeals of Schrubb V, as he voluntarily dismissed Schrubb VI, and failed to pay a filing fee in Schrubb VII, resulting in its dismissal.

Schrubb argues that a “Discharge of Debtor and Final Decree” issued by the bankruptcy court on November 26, 2018, proves that without interference from prison mail staff, he was able to attain a favorable result in his bankruptcy case, and from this, it can be inferred that the dismissals were caused by third-party interference. As discussed, Schrubb’s factual accusations of mail interference are outside the record, and we decline to make any such findings or take new evidence on appeal. In any event, the November 26, 2018, order is irrelevant, as it was issued in an entirely new litigation. It does not change the fact that Schrubb did not win in Schrubb V, VI, and VII, and that all avenues for direct review of those litigations were exhausted. (Childs, supra, 29 Cal.App.4th at pp. 993–994.) Thus, Schrubb V, VI, and VII were finally determined adversely to Schrubb within the meaning of section 391, and the trial court did not err in relying on them to declare Schrubb a vexatious litigant.

E. Schrubb III and IV
F.
Schrubb argues that Schrubb III and IV should not have counted against him because state prison employees were responsible for the dismissals. According to Schrubb, he made numerous requests to state prison officials and the State Personnel Board to identify the responsible defendants, but the officials refused to respond to his requests. Schrubb further argues that Schrubb III has not been finally determined adversely to him because it is still pending in Lopez.

As discussed, the alleged misconduct of third parties is outside the record, and we decline to make new factual findings or take new evidence on appeal. Substantial evidence supports the trial court’s determination that Schrubb III and IV were finally determined adversely to Schrubb, as the claims in Schrubb III were dismissed by the district court, and the appeal of Schrubb III in Schrubb IV was voluntarily dismissed by Schrubb. (Tokerud, supra, 38 Cal.App.4th at p. 779.)

Schrubb’s refiling of the claim dismissed without prejudice in Schrubb III in a new action does not affect our conclusion. Lopez is a different litigation for purposes of the vexatious litigation laws, and Schrubb III and IV were finally determined within the meaning of section 391 when all avenues of direct review were exhausted. (Childs, supra, 29 Cal.App.4th at pp. 993–994.) Schrubb III and IV were still discrete burdens on the defendants and the judicial system to count against Schrubb for purposes of the vexatious litigant laws. (Tokerud, supra, 38 Cal.App.4th at p. 779.)

Schrubb additionally argues that Schrubb III should not be counted against him because the dismissal without prejudice left open the question of the responsible defendants’ liability. In Tokerud, the court held that a dismissal will not be deemed a termination favorable to the defendant if it “leaves some doubt regarding the defendant’s liability, as where the dismissal is part of a negotiated settlement. . . .” (Tokerud, supra, 38 Cal.App.4th at pp. 779–780 & fn. 3.) However, the dismissal without prejudice in Schrubb III is not comparable to a negotiated settlement, as Schrubb did not effectively prevail on his claims or obtain any of the relief he sought. In any event, even assuming (generously) that Schrubb III should not be counted because it left some doubt as to the liability of the then-unknown defendants, the trial court’s vexatious litigant determination would still be supported by substantial evidence of at least six other qualifying litigations which were finally determined adversely to Schrubb within the meaning of section 391 (i.e., Schrubb I, II, IV, V, VI, VII). (§ 391, subd. (a)(1).)

DISPOSITION

The trial court’s order declaring Schrubb to be a vexatious litigation is affirmed.

 

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Petrou, J.

A153830