Opinion
A151032
04-30-2018
JUNHO HYON, Plaintiff and Appellant, v. EDMUND G. BROWN, JR., as Governor, etc., et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCS048068)
Plaintiff Junho Hyon, acting in propria persona (pro. per.) sued the governor and the State of California for constructive fraud. On appeal, Hyon challenges an order declaring him a vexatious litigant as defined in Code of Civil Procedure section 391, subdivision (b), requiring him to obtain a prefiling order before filing any new litigation in propria persona in state courts (§ 391.7), and directing him to post security to pursue his lawsuit (§ 391.3). He also challenges an order dismissing his complaint after he failed to post the required security. We shall affirm the challenged orders.
All further statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
In his capacity as a pro. per. litigant, Hyon has commenced or maintained numerous civil actions in federal and state courts that were finally determined adversely to him. The lawsuits pursued by Hyon have their origin in a dispute that began in the early 1990s concerning a sand mining operation on Decker Island in the Sacramento River. The owner of Decker Island agreed to pay Hyon and his business partner a finder's fee for locating investors in the sand mining operation. After Decker Island's owner failed to pay the finder's fee and instead dealt directly with the investors located by Hyon and his business partner, they sued the island's owner and ultimately secured a $7.6 million verdict. Faced with obstacles to enforcing the judgment, their attorney, Jeffrey Shopoff, negotiated a global settlement agreement that finally resolved the litigation. The division of the settlement proceeds led to further, extensive litigation that had a conclusion unsatisfactory to Hyon, who has sued many of the parties and attorneys involved in the litigation.
In support of their motion to declare Hyon a vexatious litigant, defendants relied in part upon our prior opinion in Hyon v. Shopoff (Jan. 20, 2015, A138623) [nonpub. opn.]. We draw background facts from the opinion, which may be relied upon pursuant to rule 8.1115(b)(1) of the California Rules of Court.
The complaint giving rise to the appeal was filed in December 2016 by Hyon in propria persona against Governor Brown and the State of California (collectively, defendants). In the complaint, Hyon alleges a single cause of action for constructive fraud. The allegations of the complaint arise out of the dispute over Decker Island and the subsequent, extensive litigation that ensued. The primary object of Hyon's ire appears to be Judge Scott Kays of the Solano County Superior Court, who had previously dismissed Hyon's lawsuit against various defendants. According to the complaint, Hyon wrote to Senator Dianne Feinstein, who recommended that he contact Governor Brown since his concerns arose out of the alleged wrongful conduct of the Commission on Judicial Performance in rejecting his complaints about Judge Kays. Senator Feinstein informed Hyon that she had been assured the governor's staff would work hard to help him. However, despite the fact he informed the governor about the allegedly wrongful conduct of Judge Kays, Shopoff, and others, Hyon asserts that Governor Brown failed "to help save [his] life." On that basis, Hyon alleges that Governor Brown committed constructive fraud.
Defendants moved to declare Hyon a vexatious litigant, require him to obtain a prefiling order before filing any new litigation in propria persona, and furnish security as a condition to maintaining his constructive fraud cause of action. Hyon did not file any written opposition to the motion. Instead, he filed motions to impose monetary sanctions against named individuals involved in the Decker Island litigation, demands for production of proof concerning issues in the Decker Island litigation, and a request for the court to "notice crimes" of Shopoff and others.
Following a hearing on March 29, 2017, the court granted the defendants' motion. In the court's minute order of that date, the court found Hyon to be a vexatious litigant, issued a prefiling order, and ordered the action dismissed unless he furnished security in the amount of $15,715 within 30 days. The court directed defendants' counsel to prepare a formal order.
Hyon filed a notice of appeal from a "[j]udgment of dismissal" on April 7, 2017. The court thereafter filed its written order deeming Hyon to be a vexatious litigant on April 14. Defendants served notice of entry of the order on April 19. By order dated May 30, the court dismissed Hyon's complaint with prejudice on the ground he had failed to furnish a bond for security as required in the court's April 14 order.
Although Hyon's notice of appeal was technically premature in that it was filed before both the vexatious litigant order and the order dismissing his complaint with prejudice, we will exercise our discretion to treat the notice of appeal as having been filed immediately after the order of dismissal. (Cal. Rules of Court, rule 8.104(d)(2).)
DISCUSSION
1. Vexatious litigant order
The statutory scheme that authorizes a court to declare a person a vexatious litigant (§§ 391-391.8) was originally "enacted in 1963 to curb misuse of the court system by those acting in propria persona who repeatedly relitigate the same issues. Their abuse of the system not only wastes court time and resources but also prejudices other parties waiting their turn before the courts." (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008.) "A vexatious litigant may be required to furnish security before proceeding with pending litigation; if that security is not furnished, the litigation must be dismissed. [Citation.] In addition, a court may, on its own motion or on motion of a party, issue a prefiling order that prohibits the vexatious litigant from filing any 'new litigation' without first obtaining permission of the presiding judge of the court where the litigation is proposed to be filed." (Ibid.; §§ 391.3, 391.4, 391.7.)
The term "vexatious litigant" is defined in section 391, subdivision (b). As relevant here, the statute provides that a person is a vexatious litigant if he or she "commenced, prosecuted, or maintained in propria persona at least five litigations other than in small claims court" in the preceding seven-year period that were "finally determined adversely to the person . . . ." (§ 391, subd. (b)(1).) "Litigation" is defined to mean "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (§ 391, subd. (a).) An action that a plaintiff filed and dismissed is considered litigation finally determined adversely against the plaintiff, even if the dismissal is voluntary and without prejudice. (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779-780.)
In an appeal from an order declaring a person a vexatious litigant, we uphold the court's ruling "if it is supported by substantial evidence." (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.) "[W]e presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment." (Ibid.)
Here, defendants presented documentary evidence to establish that Hyon pursued at least five state or federal court lawsuits in propria persona in the seven-year period before the filing of the vexatious litigant motion. All of the lawsuits were finally determined adversely against Hyon. The actions the trial court cited in support of its order declaring Hyon a vexatious litigant are summarized as follows:
1. Hyon v. Light, City & County of San Francisco Superior Court No. CGC-09-493980. Dismissed with prejudice on April 2, 2010. No appeal filed.
2. Hyon v. Shopoff et al., eight consolidated appeals in the Court of Appeal, Division Three (A138623, A138832, A138833, A138834, A139565, A140342,
A142124, A142199) from Solano County Superior Court No. FCS039786. Judgments of dismissal affirmed on January 20, 2015.
3. Hyon v. Internal Revenue Service, United States District Court for the Eastern District of California No. 2:12-cv-01234-MCE-CKD PS. Dismissed with prejudice on July 9, 2012. No appeal filed.
4. Hyon v. Pagey et al., United States District Court for the Eastern District of California No. 2:16-cv-02626-JAM CKD PS. Voluntarily dismissed on November 28, 2016.
5. Hyon v. Shimoguchi et al., United States District Court for the Eastern District of California No. 2:12-cv-01235-JAM-EFB PS. Dismissed on July 27, 2012. No appeal filed.
6. Hyon v. Brown et al., United States District Court for the Eastern District of California No. 2:16-cv-02624-TLN-AC PS. Dismissed on November 22, 2016. No appeal or amended complaint filed.
7. Hyon v. Chief Trial Counsel et al., Solano County Superior Court No. FCS039787. Order sustaining demurrer without leave to amend filed on November 16, 2012. No appeal filed.
Hyon has offered no basis for this court to conclude that any of the foregoing actions should not be treated as litigations "finally determined adversely" against him in the seven-year period preceding the filing of defendants' motion. (See § 391, subd. (a)(1).) Instead, his opening brief is devoted to reciting the purported crimes, frauds, and abuses of power by the various individuals and judges Hyon claims have wronged him. He also claims he cannot be a vexatious litigant because he is poor and does not have the resources to hire a lawyer to harass his opponents. But it is the absence of a lawyer that justifies the vexatious litigant classification in the case a person who repeatedly pursues unmeritorious litigation. (See Shalant v. Girardi (2011) 51 Cal.4th 1164, 1176 [lawyers have an ethical obligation not to file frivolous claims and may be sanctioned for doing so; vexatious litigant designation gives courts a tool to control frivolous litigation by persons who proceed without an attorney].) Hyon's claimed indigence and inability to hire a lawyer has no bearing upon whether he is a vexatious litigant.
Accordingly, we conclude there is substantial evidence to support the trial court's order declaring Hyon a vexatious litigant pursuant to section 391, subdivision (b)(1). That determination supports the issuance of a prefiling order prohibiting Hyon "from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed." (§ 391.7, subd. (a).)
2. Posting security
A court must order a plaintiff to furnish security if, after hearing, "the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant." (§ 391.3.) If the plaintiff fails to furnish security as ordered, the action must be dismissed. (§ 391.4.) In determining whether the plaintiff has a reasonable probability of prevailing, the court weighs the evidence submitted by defendants and plaintiff. (See Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 786.) Here, Hyon has no reasonable probability of prevailing on his constructive fraud cause of action.
Constructive fraud is a particular type of fraud that applies only when there is a fiduciary or confidential relationship between the parties. (Prakashpalan v. Engstrom, Lipscomb and Lack (2014) 223 Cal.App.4th 1105, 1131.) " 'Constructive fraud' arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice.' " (Ibid.) "The elements of the cause of action for constructive fraud are (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive; and (4) reliance and resulting injury (causation)." (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 516, fn. 14.) "Whether a fiduciary duty exists is generally a question of law." (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599.)
In this action, Hyon does not plead any relationship between himself and the defendants other than being a resident and citizen of the State of California of which the governor is the chief executive. This relationship, alone, does not give rise to fiduciary duty. (See Rickel v. Schwinn Bicycle Co. (1983) 144 Cal.App.3d 648, 654 [describing nature of fiduciary relationship].)
In addition to his failure to plead a fiduciary relationship, Hyon has failed to plead any intent to deceive by the defendants or any reliance on any statement or omission that may have caused him injury. Indeed, his injuries occurred many years before he informed the governor of his grievances. Consequently, he cannot state a cause of action for constructive fraud against the governor and the State of California.
Moreover, the facts as alleged in the complaint do not entitle Hyon to relief under any legal theory. His complaint alleges misconduct by Judge Kay and the Commission on Judicial Performance. The governor has "supreme executive power" (Cal. Const., art. V, § 1) but has no power to review decisions by judges or the Commission on Judicial Performance in light of constitutional principles establishing the separation of executive, legislative, and judicial powers. (Cal. Const., art. III, § 3.) Accordingly, regardless of any cause of action that might be pleaded, Hyon cannot state a claim against the governor or executive branch of the state.
We conclude the court did not err in determining that Hyon has no reasonable probability of prevailing on his complaint. As a result, the court was compelled to order Hyon to furnish security in an amount set by the court. (§ 391.3.) Hyon has waived any argument that the security required was excessive in light of his failure to raise the issue on appeal.
As a final matter, there is nothing in the record on appeal to suggest Hyon complied with the requirement to furnish security. There is consequently no basis to conclude the court erred in dismissing the complaint with prejudice, which it was required to do after Hyon failed to furnish the required security to maintain his action. (§ 391.4.)
DISPOSITION
The orders declaring Hyon to be a vexatious litigant, imposing a prefiling requirement as a condition to filing new litigation in propria persona, requiring Hyon to furnish security in order to maintain his lawsuit, and dismissing the complaint with prejudice are affirmed. Respondents shall be entitled to recover their costs on appeal.
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Pollak, J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------