Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. 37-2008-00079935- CU-CR-CTL, Timothy B. Taylor, Judge.
NARES, Acting P. J
Plaintiff Jeff S. Gough-Aoshima (Gough), in propia persona, appeals from an order finding him a vexatious litigant in this action he brought against Karen Archer and Richard Overton (together, sometimes, defendants) for false imprisonment, false arrest, infliction of emotional distress, abuse of process and civil conspiracy. The court required that Gough post a bond of $10,000 before the action could proceed.
On appeal, Gough asserts the court erred in finding him a vexatious litigant because (1) the court did not make the necessary examination of the other cases he filed in determining he was a vexatious litigant; (2) his use of a pre-lawsuit discovery petition was not a qualifying vexatious litigant case; (3) the court failed to order an investigation of Archer and Overton's financial status when they sought a filing fee waiver; and (4) he has several cases in "procedural default." We requested supplemental briefing from the parties to address whether the order finding Gough was a vexatious litigant is an appealable order.
We conclude the order is not appealable. However, we exercise our discretion to treat this matter as a peremptory writ of mandate given the unusual circumstances presented by this action, and as defendants have requested that we reach the merits. On the merits we conclude that the court did not err in declaring him a vexatious litigant. Accordingly, we deny Gough's petition.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
In March 2008 Gough filed a complaint, in propria persona, against Archer and Overton, alleging causes of action for "unlawful arrest, " "false imprisonment" and emotional distress. Although the complaint is rambling and somewhat unclear, it appears that Gough asserts that Overton falsely alleged that Gough had assaulted him. Overton thereafter allegedly contacted Gough's parole officer. Gough alleges that Overton and Archer caused Gough to be wrongfully arrested and imprisoned.
B. The Demurrer
Archer and Overton demurred to the complaint, arguing Gough could not set forth a valid cause of action as a matter of law because the complaint did not allege who arrested him or that the defendants' actions were taken with the intent of causing the improper imprisonment of Gough. Archer and Overton also alleged that each cause of action was uncertain, ambiguous and unintelligible.
The court sustained the demurrer as to the first cause of action without leave to amend as there was no separate cause of action for unlawful arrest. The court sustained the demurrer to the second cause of action, but gave Gough 10 days leave to amend. Specifically, the court ordered that Gough allege who arrested him and that the defendants' actions were taken with the intent of causing the arrest and imprisonment of Gough. The court also sustained the demurrer with leave to amend as to the third cause of action, but cautioned that "any amendment must address the apparent fact that any statements or actions alleged to have resulted in 'emotional distress' arose in the context of the earlier civil harassment proceeding, and are thus privileged under Civil Code section 47[, subdivision (b)]."
C. First Amended Complaint
Thereafter, Gough filed a first amended complaint. Gough added as a defendant his parole officer, Sewell. The complaint again alleged that Overton and Archer had told Sewell that Gough had assaulted Overton. The complaint further alleged that in doing so they did not tell Sewell that Gough had a harassment restraining order against Overton and Archer. He also recited the restraining order proceedings he initiated against Overton and Archer.
Sewell is not a party to this appeal.
Gough alleged that as a result of Overton and Archer's actions Gough was arrested and taken to Donovan State Prison pending a parole revocation hearing. He further alleged that following the parole revocation hearing he was found guilty based upon the "perjurious testimony by defendant Overton and Parole Officer Sewell" and he was returned to prison for six months. Based upon these allegations, Gough pleaded causes of for false imprisonment, emotional distress, abuse of process, malicious prosecution and civil conspiracy.
D. Motion To Dismiss or for Order Determining Gough to be a Vexatious Litigant
Archer and Overton brought a motion seeking either to dismiss the first amended complaint or to declare Gough a vexatious litigant and require him to furnish security before proceeding further with the litigation. The motion to dismiss alleged Gough did not timely amend his complaint.
The motion seeking to have Gough declared a vexatious litigant asserted that within the last seven years Gough had maintained at least five actions in propria persona that were determined adversely to him, and there was not a reasonable probability he would prevail in the instant litigation. Defendants listed eight actions Gough had previously brought that were finally determined against him and attached orders from those court proceedings. Those actions were:
1. Gough v. San Diego Port Authority (Super. Ct. San Diego County, 2006, No. IC 859674). That action asserted causes of action for declaratory relief and for return of property. On October 20, 2006, the court sustained the defendant's demurrer without leave to amend.
2. Gough-Aoshima v. Schwarzenegger (S.D.Cal. 2008, No. 08-0992). That case alleged a violation of his constitutional rights at his parole revocation hearing. On July 3, 2008, the court dismissed the complaint, granting Gough 45 days leave to amend. Gough did not amend the complaint and the order became final.
3. Gough v. Sewell (Super. Ct. San Diego County, 2008, No. 37-2008-00080875-CU-MC-CTL). That complaint alleged false arrest and false imprisonment against his parole officer, Sewell. On October 3, 2008, the court sustained Sewell's demurrer without leave to amend due to Gough's failure to exhaust his administrative remedies.
4. Gough-Aoshima v. Smith (Super. Ct. San Diego County, 2007, No. 37-2007-00083380-CU-PT-CTL). That action was a petition seeking an order allowing discovery prior to the filing of a civil action. The petition was denied on January 10, 2008.
5. Gough-Aoshima v. Griffin (Super. Ct. San Diego County, 2007, No. 37-2007-00083379-CU-PT-CTL). That case also was a petition for precomplaint discovery. On January 10, 2008, the court denied the petition.
6. Gough-Aoshima v. Archer (Super. Ct. San Diego County, 2007, 37-2007-00082027-CU-HR-CTL). In that petition Gough sought a harassment restraining order against Archer, and she brought a cross-petition for a restraining order. On January 30, 2008, the court dismissed the petition and cross-petition.
7. Gough v. Munoz (Super. Ct San Diego County, 2008, No. 37-2008-00086262-CU-PT-CTL). That petition sought an order allowing precomplaint discovery. On July 29, 2008, the court issued an order denying the petition.
8. Gough-Aoshima v. Archer (Super. Ct. San Diego County, 2007, No. 37-2007-00083116-CU-PT-CTL). That petition sought an order allowing precomplaint discovery. On January 3, 2008, the court denied the petition.
Defendants argued there was no reasonable probability Gough would prevail in the instant action because (1) he could not show that their report of his alleged assault to authorities was not made in good faith because his parole was revoked based upon that assault, and (2) this action was an improper collateral attack on the decision to revoke his parole.
E. Court's Order
The court denied defendants' motion to dismiss as Gough's first amended complaint was timely filed.
The court granted the motion requiring Gough to furnish security as a vexatious litigant. The court found he was a vexatious litigant because (1) he had filed five or more prior lawsuits in propria persona during the previous seven years that were determined against him; and (2) he repeatedly filed unmeritorious motions, pleadings or other papers, conducted unnecessary discovery or engaged in other tactics that were frivolous or solely intended to cause unnecessary delay.
The court also found there was not a reasonable probability Gough could prevail in the instant action. In doing so, the court found Gough "has sought to collaterally attack his parole revocation by suing many of those who were involved in his arrest, parole revocation and incarceration." The court ordered that Gough post a security bond of $10,000 before proceeding with this action and prohibited him from filing any new actions without first obtaining leave of court of the presiding judge of the court in which the litigation was proposed to be filed.
F. Motion for Reconsideration
Gough brought a motion for reconsideration of the court's order declaring him a vexatious litigant. Gough argued the court erred in determining him a vexatious litigant. One ground specified in the motion was that one of the cases the court found had been finally determined against him, Gough v. Schwarzenegger, had been reinstated.
The court denied the motion for reconsideration. In doing so, the court noted that although one of the eight cases the court relied on as having been finally determined against Gough had been reopened, "[t]he other seven cases relied upon by defendants as the predicate for the vexatious litigant holding remain finally adjudicated against plaintiff...."
DISCUSSION
I. APPEALABILITY OF ORDER
Following the parties' briefing in this matter we requested that the parties file supplemental briefs addressing whether the order declaring Gough a vexatious litigant was an appealable order. We conclude that such an order is not appealable, and we have no jurisdiction to hear this appeal. However, we exercise our discretion to hear this matter as a writ of mandate.
We may only review on direct appeal "(1) an appealable order or (2) an appealable judgment." (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) The issue of appealability cannot be waived: even if no party has raised it, this court must decide whether it has jurisdiction. (In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 689.)
There is no statutory authority permitting direct appeal of an order declaring someone a vexatious litigant. Neither the general statute on appeals (Code Civ. Proc., § 904.1), nor the statutes on vexatious litigants authorize a direct appeal. (§ 391 et seq.) Case law has held an order declaring a party to be a vexatious litigant is not itself an appealable order and may only be reviewed "in conjunction with an appeal from some subsequent otherwise appealable judgment or order." (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008; see also People v. Harrison (2001) 92 Cal.App.4th 780, 785, fn. 6.) Cases that have allowed consideration of vexatious litigant orders on a direct appeal have included when the appeal was taken from a "final judgment[ ] of dismissal" after the vexatious plaintiff fails to furnish a court-ordered bond (Roston v. Edwards (1982) 127 Cal.App.3d842, 845-846; see Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1498; Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 985, fn. 1); taken from an order refusing to dissolve an injunction that prevents a vexatious litigant from filing suit (Luckett v. Panos(2008) 161 Cal.App.4th 77, 89-90; § 904.1, subd. (a)(6)); and taken from an order declaring plaintiff a vexatious litigant after judgment was entered for the defendants, but while plaintiff's motion for new trial was pending (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 222.)
All further statutory references are to the Code of Civil Procedure.
Absent an appealable order, Gough's remedy was to seek review via a timely petition for writ of mandamus. (See First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d860, 871 [writ petition seeking to require a bond from someone declared a vexatious litigant].) Gough did not seek timely writ review.
Nothing in the record on appeal indicates that a judgment was entered following the court's order declaring Gough a vexatious litigant. Therefore, unless there is a subsequent appealable order entered in conjunction with the order declaring Gough a vexatious litigant, we do not have jurisdiction to entertain this appeal.
Gough's notice of appeal indicates it was from the court's "Final Order of Reconsideration re Vexatious Litigant and Requirement to Post Security." The California Supreme Court has held that an order denying a motion for reconsideration that raises new facts is appealable. (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 477, fn. 2.)
However, although the California Supreme Court has never revisited this issue, The Rutter Group, Civil Appeals and Writs notes that "[t]here is a split of authority whether an order denying a [section 1008] motion for reconsideration is appealable." (Eisenburg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 2:158, p. 2-80 [citing case law].) Further, this treatise questions whether Freeman is still good law, noting "the authority on which Freeman relied (Farrar v. McCormick (1972) 25 [Cal. App.]3d 701, 706), and thus Freeman itself, were rendered obsolete by a repeal and reenactment of [section 1008] effective in 1979 (see Blue Mountain Develop. Co. v. Carville [(1982)] 132 Cal.App.3d[1005, ] 1011.)" (Eisenberg et al., supra, ¶ 2:159:1, p. 2-80.) The treatise goes on to note that "[t]he emerging weight of authority" has held that "[o]rders denying reconsideration are analogous to nonappealable orders denying a new trial or motion to vacate, and thus are 'not appealable under any circumstances.' ([Citing recent cases holding it is a nonappealable order.])" (Id. at ¶ 2:160, p. 2-80.)
Thus, under this authority, we have no jurisdiction to review this appeal. However, under "unusual" circumstances we may exercise our discretion to treat the appeal as a writ petition. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶¶ 2:7-2:7.1, p. 2-3.)
Here, defendants request that we review the case on the merits. Defendants argue that "dismissal of the appeal would give the Plaintiff exactly what he desires, and that is further opportunity to harass the defendants through the use of more motions and petitions in the trial court until there is finally an appealable order─which should not be tolerated. Plaintiff is a vexatious litigant and thrives on his ability to maintain and continue harassing the targets of his opprobrium." Defendants also note that once Gough's "case is ultimately dismissed for failure to provide security, this Honorable Court would undoubtedly be faced by a new appeal and the defendants would be required to expend the time and effort and be forced to incur additional attorney's fess and costs to repeat their opposition to such appeal." We conclude that given Gough's history of harassing litigation against defendants and others, and in the interests of finality, this matter provides a sufficiently compelling situation to warrant treating this appeal as a writ petition. This resolution is particularly appropriate because defendants have requested that we resolve this matter on the merits. (See In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 404-405.)
II. MERITS
A. Standard of Review
"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." (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.)
B. Applicable Authority
Section 391.1 provides:
"In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security. The motion must be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the moving defendant." (Italics added.)
Section 391, subdivision (a) defines "litigation" as "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (Italics added.)
Section 391, subdivision (b) defines a "vexatious litigant" as a person who does any of the following:
"(1) In 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 or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing. [¶] (2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined. [¶] (3) In any litigation while acting in propria persona, 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." (Italics added.)
C. Analysis
As detailed, ante, the court found that Gough represented himself in propria persona in more than five civil actions or proceedings in the past seven years that were finally determined against him. On appeal, Gough does not challenge the fact that he has more than five actions or proceedings finally determined against him within the past seven years. Gough does assert that there has been no final determination in one of the actions, Gough-Aoshima v. Schwarzenegger, supra, No. 08-0992, because his default was set aside in that case. However, as the court noted in denying Gough's motion for reconsideration, the remaining seven cases relied upon by defendants remain fully adjudicated against Gough.
Gough asserts that the cases adjudicated against him should have been "examined" by the court to determine if any of them had merit. However, the vexatious litigant statutes do not require courts to determine that the final determination of the predicate cases be "on the merits." Thus, even a case voluntarily dismissed by a plaintiff may qualify as an action finally determined against that party. (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 777, 779.)
Gough also contends the presuit discovery petitions relied on by the defendants do not come within the definition of a "civil action or proceeding" under section 391, subdivision (a). This contention is unavailing.
" 'Litigation' for purposes of vexatious litigant requirement encompasses civil trials and special proceedings...." (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1219.) A "special proceeding" is defined as any remedy that is not obtained by an action. (§ 23.) It includes any proceedings that that may be commenced independently of a pending action, by petition or motion on notice in order to obtain special relief. (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 710.)
The petitions for presuit discovery, such as those filed by Gough, are such "special proceedings." Section 2035.010 allows a person who "expects to be a party or expects a successor in interest to be a party to any action" to file a petition seeking discovery "for the purpose of perpetuating that person's own testimony or that of another natural person or organization, or of preserving evidence for use in the event an action is subsequently filed." (§ 2035.010, subd. (a).) That discovery is obtained by a petition without the need of filing a formal complaint. (§ 2035.030.) A presuit petition to preserve evidence "is not an adversarial proceeding to enforce a right or redress an injury." (Orr v. City of Stockton (2007) 150 Cal.App.4th 622, 630.) Thus, such petitions fall in the category of "special proceedings" that are within the definition of "litigation" under the vexatious litigant statutes.
The court also found, as required by section 391.1, there was not a reasonable probability that Gough would prevail in the present litigation. The court did not err in making this determination.
"[A] defendant may stay pending litigation by moving to require a vexatious litigant to furnish security if the court determines 'there is not a reasonable probability' the plaintiff will prevail." (Bravo v. Ismaj, supra, 99 Cal.App.4th at p. 221.) The trial court considers the "evidence, written or oral, by witnesses or affidavit, as may be material to" (§ 391.2) whether it is not reasonably probable that the vexatious litigant will prevail. (§ 391.1.)
In Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1582-1583, the appellate court concluded 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."
Distilled to its essence, Gough's rambling and largely unintelligible complaint is, as the court found, nothing more than a collateral attack on his arrest, revocation of parole, and incarceration. In those proceedings Gough was afforded a hearing that determined there was probable cause for that arrest, based upon statements allegedly made by defendants. Gough has not directly challenged the parole board's determination that the accusation of assault by defendants justified revocation of his parole. Thus, there is no merit to Gough's causes of action. (Heck v. Humphrey (1994) 512 U.S. 477, 486-487 [no civil action for damages based upon alleged false imprisonment may be brought without first showing the conviction or sentence has been set aside].)
Gough also asserts the court should have investigated defendants' application for a fee waiver in this case to determine whether they "committed a fraud on the court regarding their financial ability to pay court costs." However, Gough provides no evidence there was a fee waiver, nor that defendants had the financial ability to pay court costs. Moreover, Gough does not address how such a failure to investigate the defendants' alleged fee waiver was prejudicial to his case or constituted an error by the court. Accordingly, this contention lacks merit.
We note that Gough has attached a declaration to his opening brief that he requests we consider on this appeal. Because this declaration is a matter outside the record on appeal and constitutes new evidence not considered by the trial court, we cannot consider it. (Fink v. Shmetov (2010) 180 Cal.App.4th 1160, 1174.)
DISPOSITION
The appeal is treated as a petition for writ of mandate. The petition is denied. Defendants shall recover their costs.
WE CONCUR: McDONALD, J.O'ROURKE, J.