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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

E070312

(Super.Ct.Nos. 56-2017-00920001 & 30-2017-00920001)

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.

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

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

In this second of three companion cases, we consider (1) whether substantial evidence supports the trial court’s orders requiring plaintiff and appellant Shary Said to furnish security pursuant to Code of Civil Procedure section 391.3, subdivision (a), and (2) whether due process considerations warrant reversal. With exceptions not applicable here, section 391.3, subdivision (a) requires a vexatious litigant to furnish security for the benefit of a moving defendant if “there is no reasonable probability that the plaintiff will prevail in the litigation” against that defendant. After determining that Said is a vexatious litigant—a determination we affirmed in companion case No. E070231—the trial court ordered that Said furnish security for the benefit of respondents. 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). This appeal concerns only the 001 Case. As amended, the complaint in the 001 Case alleges 25 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 20 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 the Judicial Branch Respondents each 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. The motions sought to have Said declared as 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 October 2017, the trial court found Said to be a vexatious litigant and ordered that she obtain proper leave before commencing future litigation. In November 2017, the trial court ordered that Said furnish security in favor of respondents.

At a January 2018 hearing, after the trial court denied a motion Said had filed to vacate the security orders, Said informed the trial court that she would not furnish the security. The trial court then ordered the case dismissed as to respondents.

III. DISCUSSION
IV.
Said makes two main contentions in this appeal. First, she contends that the orders requiring her to furnish security are not supported by substantial evidence. Second, she contends that the orders must be reversed because she was not given proper notice of the November 2017 hearing, which she did not attend and during which the trial court granted respondents’ requests for security orders.

A. Substantial Evidence
B.
“[A] 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. If there is any substantial evidence to support the court’s determination, it will be upheld.” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 636.) Because the court weighs the evidence in considering whether security is necessary, neither we nor the trial court are required to “assume the truth of plaintiff’s alleged facts.” (Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 782.) “It is the ruling, and not the reason for the ruling, that is reviewed on appeal.” (Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, 906-907.)

Substantial evidence supports the security orders here. At its core, the operative complaint in the 001 Case alleges that several dozen individuals and entities are conspiring against Said in various ways. Said, however, offered no evidence for such allegations in opposing the security motions, whether in the form of documentary exhibits or sworn declarations. Instead, in opposing respondents’ motions, Said only averred that no evidence supported the conclusion that she is a vexatious litigant, a finding we affirmed in companion case No. E070231. Because there was no evidence to support Said’s allegations—either as to conspiracy or otherwise—it was well within the trial court’s discretion to find that Said had no reasonable probability of prevailing against respondents.

C. Notice
D.
Said also contends that the security orders must be reversed because she was deprived of due process. On this, we begin with additional procedural history.

As noted earlier, the trial court found Said to be a vexatious litigant in October 2017 but did not order her to furnish security until November 2017. The minute order from the October 2017 hearing stated: “The court DEFERS ruling on Defendants’ requests for an order that Plaintiff file an undertaking pending resolution of the other pending motions.” (Boldface omitted.)

In a notice of the October 2017 ruling, the McCune & Harber Respondents stated that hearings on two motions had been continued by the trial court to November 9, 2017: a “Motion to Strike Plaintiff’s First Amended Complaint (Anti-SLAPP), filed by Judge Earl H. Maas, III” and a “Demurrer of Plaintiff’s First Amended Complaint, filed by Judge Earl H. Maas, III.” The notice of ruling also stated that the trial court would rule on the McCune & Harber Respondents’ security motion on November 9 as well.

In an objection to the notice of ruling as well as a “Counter-Notice of Ruling,” Said disputed the notion that the trial court would rule on the security motion on November 9. Said’s objection stated that “[t]he Court stated that he will rule on the request for a bond after the resolution of Judge Maas’ Motion To [S]trike and Demurrer, which the Court set for November 9, 2017.” Her “counter-notice of ruling” stated that “[t]he court at the hearing stated that it would rule on the bond after the motions that were postponed (Judge Earl Maas’ motion to strike and demurrer) are resolved” and that “[t]he Court set such Motions of Judge Maas for November 9, 2017.” In other words, in Said’s view, the trial court merely stated that it would rule on the security orders no earlier than November 9, not necessarily at the November 9 hearing.

Said did not appear at the November 9 hearing. A minute order from that hearing stated that the McCune & Harber Respondents “request[ed] to revisit the previous motions to declare plaintiff a [vexatious] litigant” and that “[t]he court will grant all requesting counsel to prepare orders containing the information as discussed, including fees and the undertaking amounts.” Each of the three groups of respondents then submitted proposed orders, which the trial court signed a week later.

Said contends that she was deprived of due process because the November 9 hearing was not properly noticed as to the security orders, causing her to not be present when the trial court decided the security issue. Even assuming for the sake of argument, however, that an error occurred, Said does not demonstrate that the error would have been prejudicial.

Denial of oral argument on a vexatious litigant motion is reviewed for harmless error. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 225-226.) Said does not demonstrate that she has suffered any prejudice here. Said had a full opportunity to oppose respondents’ security motions, including by presenting evidence. Said does not suggest that she was precluded from presenting evidence when she filed the oppositions, and she does not now identify what evidence she would have presented had she been present at the November 9 hearing. Said “therefore fails to show how the outcome would be different if [she] had been allowed an oral hearing,” and “[w]e are not required to remand this matter for an oral argument or an evidentiary hearing where there is no purpose shown for doing so.” (Id. at p. 227.)

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.

The several arguments Said raises are all based on her contention that this court’s “role was to decide whether there was evidence in the record to support the trial court’s conclusion that appellant’s claims were foreclosed as a matter of law.” For this, Said cites Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, disapproved in Moran, supra, 40 Cal.4th at p. 785, fn. 7, where the court held that “to satisfy its burden of showing that the plaintiff has no reasonable probability of prevailing, the defendant must show that the plaintiff’s recovery is foreclosed as a matter of law or that there are insufficient facts to support recovery by the plaintiff on its legal theories, even if all the plaintiff’s facts are credited.” (Id. at pp. 1582-1583.) The takeaway we are to draw from Devereaux is that insufficiency as a matter of law is the only way a defendant may show a plaintiff has no reasonable probability of prevailing.

Our Supreme Court, however, has disapproved Devereaux on this point. (Moran, supra, 40 Cal.4th at p. 785, fn. 7.) A case is no longer persuasive authority when it has been disapproved by the California Supreme Court. (See Jacobs v. Fire Ins. Exchange (1995) 36 Cal.App.4th 1258, 1280-1282.) As Moran and subsequent cases make clear, a showing that a plaintiff has no reasonable probability of prevailing may be established either “by demonstrating that the plaintiff cannot prevail in the action as a matter of law” or “by the weight of the evidence.” (Golin v. Allenby, supra, 190 Cal.App.4th at p. 642; see Moran, supra, 40 Cal.4th at p. 784 [trial court is “permitted to weigh the evidence”].)

Thus, contrary to what Said contends, it does not matter that the respondents only sought the orders on the basis that she could not prevail in the action as a matter of law. As we have noted, “[i]t is the ruling, and not the reason for the ruling, that is reviewed on appeal.” (Muller v. Fresno Community Hospital & Medical Center, supra, 172 Cal.App.4th at pp. 906-907.) “There is perhaps no rule of review more firmly established than the principle that a ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason. If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion.” (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568.) And as discussed above, substantial evidence indicating Said’s lack of evidence supports the ruling here.

V. DISPOSITION
VI.
The judgments are affirmed. Respondents are to recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

FIELDS

Acting P. J.

MENETREZ

J.