Filed 1/15/20 Said v. McCune & Harber CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

SHARY SAID,

Plaintiff and Appellant,

v.

MCCUNE & HARBER et al.,

Defendants and Respondents.

SHARY SAID

Plaintiff and Appellant,

v.

MCCUNE & HARBER et al.,

Defendants and Respondents

E070231

(Super.Ct.No. 56-2017-00911508)

(Super.Ct.No. 56-2017-00920001)

OPINION

APPEAL from the Superior Court of Ventura County. Vincent J. O’Neill, Jr., Judge. Affirmed.

Shary Said, in pro. per., for Plaintiff and Appellant.

McCune & Harber, Stephen M. Harber and Nazli Alimi for Defendants and Respondents McCune & Harber, Stephen Harber and Dana McCune.

Varner & Brandt, Brendan W. Brandt and Michelle M. Wolfe for Defendants and Respondents Bruce Varner, Varner & Brandt LLP and Stater Bros. Markets.

Cummings, McClorey, Davis, Acho & Associates and Sarah L. Overton for Defendants and Respondents the Honorable Kathleen E. O’Leary, Presiding Justice of the California Court of Appeal, Fourth District, Division Three, et al.

In this first of three companion cases, we consider whether substantial evidence supports the trial court’s determination that plaintiff and appellant Shary Said is a vexatious litigant, as well as its order requiring Said to obtain leave of court before commencing new litigation. Code of Civil Procedure section 391, subdivision (b)(1) defines “vexatious litigant” to mean 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 . . . .” The trial court determined that Said satisfied this definition, and we affirm.

I. FACTUAL AND PROCEDURAL HISTORY
II.
In 2017, Said filed two lawsuits in Orange County, Case Nos. 30-2017-00911508 (the 508 Case) and 30-2017-00920001 (the 001 Case). The cases were transferred to San Diego County before being returned to Orange County and ultimately transferred to Ventura County. As amended and taken together, the lawsuits allege 45 causes of action against over 70 defendants, including, among others, the three groups of respondents here: (1) McCune & Harber, LLP; Stephen Harber; and Dana McCune (the McCune & Harber Respondents); (2) over two dozen judges, justices, judicial branch entities, and associated parties (the Judicial Branch Respondents); and (3) Varner & Brandt, LLP; Bruce Varner; and Stater Bros. Markets (the Varner & Brandt Respondents).

The McCune & Harber Respondents and certain of the Judicial Branch Respondents filed motions to declare Said a vexatious litigant and for a prefiling order and security. The Varner & Brandt Respondents joined the McCune & Harber Respondents’ motion in the 001 Case (the only one of the two cases the Varner & Brandt Respondents are parties to), and Judicial Branch Respondents that were later added as defendants in the 508 Case joined the motion brought by the other Judicial Branch Respondents. The motions sought to have Said declared a vexatious litigant, asked the trial court to enter a prefiling order pursuant to section 391.7, subdivision (a), and sought orders requiring Said to furnish security.

In support of the motions, respondents filed requests for judicial notice containing docket sheets for 17 matters (i.e., complaints, appeals, and writs) Said had initiated within the preceding seven-year period.

In October 2017, the trial court granted the requests for judicial notice, found Said to be a vexatious litigant pursuant to section 391, subdivision (b)(1), and ordered that she obtain leave of court before commencing future litigation. This appeal followed.

III. DISCUSSION
IV.
A. Applicable Law
B.
“Vexatious litigant statutes were created ‘to curb misuse of the court system by those acting in propria persona who repeatedly relitigate the same issues.’ [Citation.] These ‘persistent and obsessive’ litigants would often file groundless actions against judges and other court officers who made adverse decisions against them. [Citation.] ‘Their abuse of the system not only wastes court time and resources, but also prejudices other parties waiting their turn before the courts.’ [Citation.]” (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 220-221 (Bravo).)

“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.]” (Bravo, supra, 99 Cal.App.4th at p. 219.)

C. Analysis
D.
Substantial evidence supports the trial court’s determination that Said is a vexatious litigant. First, as the docket sheets included with respondents’ requests for judicial notice indicate, Said has initiated 17 “litigations” in the preceding seven-year period, far more than the five that is required under section 391, subdivision (b)(1). (See McColm v. Westwood Park Ass’n (1998) 62 Cal.App.4th 1211, 1219 [“litigation” for purposes of section 391 “includes proceedings initiated in the Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or other criminal matters”], disapproved on another ground in John v. Superior Court (2016) 63 Cal.4th 91, 99, fn. 2.) Second, no one contends that any of these cases were in small claims court or that Said was represented by counsel in bringing them. (See § 391, subd. (b)(1) [litigation must be “in propria persona” and “other than in a small claims court”].) And third, Said either voluntarily dismissed each of the “litigations” or had them finally determined against her. The dismissals operate as adverse determinations against Said, as “[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.) As discussed below, although a plaintiff may rebut a presumption that a voluntary dismissal is an adverse determination by setting forth contrary evidence, Said has not done so here. Accordingly, the trial court did not err in finding Said a vexatious litigant and entering a prefiling order.

Said contends that whether her voluntary dismissals are adverse determinations are questions of fact that must be decided by a jury. As our Supreme Court has made clear, however, a “court is required to decide . . . whether the plaintiff is a vexatious litigant.” (Moran, supra, 40 Cal.4th at p. 786.) “Section 391, subdivision (b) identifies the factors that may be considered in making the . . . determination, and some of these factors require the trial court to weigh the evidence. For example, the court may determine that the plaintiff is a vexatious litigant on the basis of a normative conclusion that, in any litigation, the plaintiff has engaged in ‘unnecessary’ discovery or ‘other tactics that are frivolous or solely intended to cause unnecessary delay.’ (§ 391, subd. (b)(3).)” (Ibid.) The fact that the trial court made the determination here under section 391, subdivision (b)(1) does not change the fact that a court considers and weighs the evidence, not a jury. Nothing in the relevant statutes or case law mandates that a vexatious litigant determination be based on a jury’s factual findings, and a jury is therefore not required to determine whether Said’s dismissals were adverse determinations.

In contending otherwise, Said relies on Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775 (Tokerud), as well as several malicious prosecution cases. A plaintiff bringing a cause of action for malicious prosecution must allege and prove, among other things, that a prior action brought by a defendant was “pursued to a legal termination in the plaintiff’s favor.” (Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1807-1808.) Tokerud, a vexatious litigant case, drew on malicious prosecution principles in considering when a litigation is not “determined adversely to the person,” quoting section 391, subdivision (b)(1)(i)). (Tokerud, supra, 38 Cal.App.4th at p. 779.) It stated: “In the comparable context of a malicious prosecution action, a voluntary, unilateral dismissal of the underlying dispute is generally considered a termination in favor of the defendant. [Citation.] 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. [Citation.]” (Id. at pp. 779-780.) Tokerud went on to explain that a plaintiff opposing a vexatious litigant determination creates “doubt” about a previous dismissal only by setting forth contrary proof. (Id. at p. 780 & fn. 3 [“[v]oluntary dismissal is only prima facie proof the litigation was ‘determined adversely’ to the plaintiff,” who “may rebut this showing by contrary proof”].)

Neither Tokerud nor the malicious prosecution cases help Said here. Although juries in malicious prosecution cases may be called upon to decide whether the prior action was terminated in the plaintiff’s favor, that is because a favorable termination is an element of the cause of action. (See also Andrus v. Estrada (1995) 39 Cal.App.4th 1030, 1041 [noting right to jury trial in malicious prosecution actions].) The determination of whether someone is a vexatious litigant is not made by complaint asserting a cause of action, but rather is a motion ruled on by the court. Moreover, as Tokerud states, to rebut the presumption that a voluntary dismissal was an adverse determination, a plaintiff must set forth “contrary proof,” such as evidence of a negotiated settlement. (Tokerud, supra, 38 Cal.App.4th at p. 780, fn. 3.) Said presented no such proof to the trial court, so the trial court properly treated the dismissals as adverse.

Said next contends that the trial court wrongfully denied her the right to conduct discovery. Once respondents filed their motions, however, Said’s cases were stayed pursuant to section 391.6. Accordingly, Said was not entitled to conduct discovery in contesting the motions.

Said next contends that the trial court denied her the right to a jury trial under Article I, section 16 of the California Constitution. Being deemed a vexatious litigant, however, does not preclude a trial, but rather requires Said to post security and comply with the prefiling order. (See Moran, supra, 40 Cal.4th at p. 786 [granting motion to require vexatious litigant plaintiff to post security “does not preclude a trial; it merely requires a plaintiff to post security”].) Accordingly, she was not deprived of her right to a jury trial.

Said’s contention that the trial court denied her the right to question witnesses and be meaningfully heard fails largely for the reasons stated above: Said had no right to question witnesses during the stay, but if she furnished the required security after being declared a vexatious litigant, she then would regain the ability to conduct discovery. Moreover, although Said argues that she was deprived of due process, she does not deny that she was provided proper notice of the vexatious litigant determination hearing and the right to argue and present evidence. (See Bravo, supra, 99 Cal.App.4th at p. 225 [vexatious litigant determination requires “a noticed motion and a hearing which includes the right to oral argument and the presentation of evidence”].) Said therefore suffered no due process violation.

Next, Said contends that the trial court abused its discretion in taking judicial notice of the court dockets of her 17 previous “litigations.” Here, Said relies on Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, which concluded that a docket sheet was insufficient to sustain a vexatious litigant determination. Holcomb, however, held that a docket sheet was insufficient for purposes of section 391, subdivision (b)(3), which defines a vexatious litigant as someone who “‘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.’” (Holcomb, supra, 129 Cal.App.4th at p. 1506.) As the court noted, “[i]t is difficult, if not impossible, to make a determination under subdivision (b)(3) simply by resort to the docket sheet of a previous case,” and that “[e]ven when the outcome of a particular motion can be successfully divined from the docket—a task that is not always easy—it is often impossible to discern whether the particular motion was completely meritless, or made for an improper purpose.” (Ibid., italics added.) Unlike Holcomb, we need not attempt to discern from docket sheets whether Said engaged in frivolous tactics, filed unmeritorious motions, or the like. Rather, we need only find, pursuant to section 391, subdivision (b)(1), that the cases were voluntarily dismissed by Said, which the docket sheets expressly show. Holcomb therefore does not apply, and the trial court did not abuse its discretion in granting the requests for judicial notice.

Said’s remaining arguments lack merit. Her argument that the Judicial Branch Respondents’ original motions are defective because her name is misspelled in various places fails because, at a minimum, she fails to demonstrate that the typos prejudiced her in any way. (See § 475 [errors that do not “affect the substantial rights of the parties” are disregarded].) In addition, Said’s contention that the trial court never specifically ruled on the Varner & Brandt Respondents’ joinder, even if true, would have no effect on whether the trial court’s vexatious litigant determination and prefiling order were proper.

E. Supplemental Briefing
F.
In accordance with this court’s usual practice, prior to oral argument we sent the parties a tentative opinion, which in this case indicated affirmance. We allowed Said to file a supplemental letter brief to respond to the tentative opinion in lieu of appearing at oral argument. She did so, and the parties have filed letter briefs in opposition and reply. We have considered the arguments Said raises in her supplemental letter brief and do not find them persuasive.

First, Said contends that the requirement that she furnish security before receiving a “due process hearing,” by which she means a hearing prior to a potential deprivation of protected liberty and property interests (see Mathews v. Eldridge (1976) 424 U.S. 319, 332), is “not legally supported.” As we have noted, however, Said was afforded the right to argue and present evidence at her vexatious litigant determination hearing, before any security requirement was imposed. To the extent she argues that having to furnish security in order to proceed with her case itself violates due process, our cases have consistently rejected such claims. (See, e.g., Moran, supra, 40 Cal.4th at p. 786 [“‘[I]f plaintiff’s argument in this respect were accepted then any statute which required the payment of a fee or the furnishing of security as a prerequisite to the filing of a complaint, the issuance or levying of a writ, the procurement of a record on appeal, etc., would be unconstitutional.’”]; Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1170-1171; Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 60-61; Taliaferro v. Hoogs (1965) 236 Cal.App.2d 521, 526 [“a state has the plenary power to provide the terms on which it will permit litigation in its courts”], citing Cohen v. Beneficial Indus. Loan Corp. (1949) 337 U.S. 541, 552.)

Second, citing Goldberg v. Kelly (1970) 397 U.S. 254, Said argues that she was entitled to confront and cross-examine witnesses in opposing the vexatious litigant motion. Said is not entitled to a trial-type hearing. We have already stated that the stay imposed under section 391.6 precludes her from questioning witnesses in opposing the motion. In addition, Goldberg, which involved the termination of welfare payments where even the prospect of post-termination remedies “may deprive an eligible recipient of the very means by which to live while he waits” (Id. at p. 264), is simply not analogous. The detriment imposed by being deemed a vexatious litigant does not justify the procedural safeguards that Goldberg required. (See also Vitek v. Jones (1980) 445 U.S. 480, 494-496 [right to cross-examine witnesses at hearing justified “[b]ecause prisoners facing involuntary transfer to a mental hospital are threatened with immediate deprivation of liberty interests they are currently enjoying and because of the inherent risk of a mistaken transfer”].)

Third, Said argues that she had a right to obtain discovery in opposing the vexatious litigant motion and that the stay imposed by section 391.6, discussed above, only applies to pleadings. Not so. Section 391.6 provides that when a motion to declare a plaintiff a vexatious litigant and require that plaintiff to furnish security is filed, “the litigation is stayed, and the moving defendant need not plead,” until at least 10 days after the motion is decided. If, as Said contends, section 391.6 only stayed pleadings, the clause “the litigation is stayed” would be redundant. “A construction that renders some statutory language surplusage or redundant is to be avoided.” (Bernard v. Foley (2006) 39 Cal.4th 794, 810-811.) The notion that the latter clause (“the moving defendant need not plead”) somehow limits the scope of the former (“the litigation is stayed”) does not hold water either. As our Supreme Court has noted, “[t]he vexatious litigant statute . . . was modeled in part on former section 834 of the Corporations Code [(former section 834)]” such that former section 834 provides persuasive, if not controlling, authority when interpreting the vexatious litigant provisions. (Moran, supra, 40 Cal.4th at p. 785.) As enacted, former section 834 provided that if a motion requiring a plaintiff in a shareholders’ derivative action to furnish security were filed, “no pleadings need be filed by the corporation or any other defendant, and the prosecution of such action shall be stayed, until 10 days after such motion shall have been disposed of.” (Former Corp. Code, § 834, subd. (c), added by Stats.1949, ch. 499, § 1, p. 859.) In that provision, the latter clause (“the prosecution of such action shall be stayed”) could not have restricted the scope of the former (“no pleadings need to be filed”). The most natural reading of former section 834 and section 391.6 is that once the pertinent motion is filed, the entire case—including discovery—is stayed pending resolution of the motion.

Finally, Said reasserts her claim that the trial court abused its discretion in taking judicial notice of the court dockets of her previous “litigations.” Specifically, Said contends that the dockets do not show whether the dismissals were adverse to her or not. The court dockets clearly show, however, that she voluntarily dismissed almost all of the “litigations,” and “[a] litigation is finally determined adversely to a plaintiff if he or she does not win the action or proceeding that he or she began, including cases that are voluntarily dismissed by a plaintiff.” (Garcia v. Lacey, supra, 231 Cal.App.4th at p. 406, italics added.) Said’s declared “belie[f] that . . . her dismissed cases [did not end] adversely to her,” without more, does not constitute evidence to the contrary, and her belief that she was erroneously precluded from obtaining such evidence once the vexatious litigant motion had been filed is mistaken for the reasons discussed above.

V. DISPOSITION
VI.
The orders are affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

FIELDS

Acting P. J.

MENETREZ

J.