Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03AS04543
NICHOLSON, Acting P. J.
The trial court in this action found that the plaintiffs are vexatious litigants. It required posting of security consistent with the vexatious litigant statutes and, when the plaintiffs failed to post security, the court dismissed the action.
On appeal, the plaintiffs raise several issues relating to the trial court’s determination that they are vexatious litigants. We conclude that, as to one of the plaintiffs, the appeal must be dismissed because she was not subject to the trial court’s dismissal order, from which the appeal was taken. We also conclude that the plaintiffs’ contentions are without merit. Accordingly, we affirm.
BACKGROUND
On January 23, 2004, Olga L. Nogues, Alma M. Triche, and Charel Winston filed an amended complaint against Fire Insurance Exchange, also known as Farmers (defendant is hereafter referred to as Farmers). The complaint alleged causes of action for, among others, breach of contract, breach of the covenant of good faith and fair dealing, fraud, and intentional infliction of emotional distress.
The original complaint is not included in the appellant’s appendix.
The plaintiffs stated that they owned two residences: one on Shelby Circle and the other on Arroyo Vista Way, both in El Dorado Hills. Both properties were insured by Farmers. In January 2001, the Shelby Circle property sustained water damage, with subsequent mold damage, as a result of a storm. The plaintiffs engaged in settlement negotiations with Farmers over covered losses. In October 2001, the plaintiffs discovered a broken water pipe under the Arroyo Vista residence, as well as mold. The Arroyo Vista claim was consolidated with the Shelby Circle claim for negotiation.
The plaintiffs allege that, in order to get them to settle the Shelby Circle claim, Farmers assured them that the Arroyo Vista claim would be considered a covered loss. The plaintiffs settled the Shelby Circle claim and released Farmers from further liability. Thereafter, however, Farmers denied coverage for the Arroyo Vista loss.
Both the plaintiffs and Farmers filed many motions in the trial court. Those filings, along with the result, are as follows, as reflected in the appellant’s appendix filed by the plaintiffs on appeal:
February 10, 2004
Farmers’ motion to compel responses to form interrogatories. The plaintiffs had failed to respond to form interrogatories. The appellant’s appendix does not state whether the motion was granted.
December 27, 2004
Farmers’ motion to compel responses to specially-prepared interrogatories. The plaintiffs had failed to respond to specially-prepared interrogatories. The motion was granted.
December 28, 2004
Farmers’ motion to compel production of documents. Farmers sought to obtain the plaintiffs’ medical records. The motion was granted.
February 27, 2005
Farmers’ motion to compel the plaintiffs’ depositions and motion for terminating sanctions or to compel discovery responses. The plaintiffs failed to appear for noticed depositions and refused to agree to alternative dates. The motions were granted to the extent that the plaintiffs were ordered to appear for depositions and to respond to written discovery. They were also ordered to pay $1,176.30 in sanctions, which they paid approximately one year later.
March 9, 2005
The plaintiffs’ ex parte application to stay the proceedings. The plaintiffs stated that, due to medical conditions of Triche and Nogues, they were unable to proceed. The court granted a stay until June 30, 2005.
June 29, 2005
The plaintiffs’ ex parte application to stay the proceedings. The plaintiffs stated that the medical conditions and disabilities of Triche and Nogues prevented the plaintiffs from proceeding. The court denied the application. It stated: “Plaintiffs [] assert they are entitled to a stay of six months to a year as an accommodation under the Americans with Disabilities Act [ADA]. The information submitted by plaintiffs fails to establish that they are suffering from a physical or mental impairment that requires the accommodation they are requesting. The declaration of Dr. Drummer as to each plaintiff contains only non-specific conclusions and fails to state specific facts which would support a stay of all further proceedings.” The plaintiffs refused to supply additional information, citing privacy concerns. In addition to its order denying the application, the court ordered Triche to “show cause why she should not be found to have committed a contempt before the court when she uttered statements in the presence of the court as follows: ‘You play Pontius Pilate with our lives.... This is an abomination.... What you are doing to us is a disgrace.’” The appellant’s appendix does not reveal what came of this order to show cause.
December 15, 2005
Contempt citation against Winston. The trial court issued a $500 sanction against Winston for contempt of court for actions which are not revealed in the appellant’s appendix. Winston moved to vacate the sanctions, and the motion was granted. However, the court stated: “‘[A] course of conduct has developed whereby plaintiffs receive an adverse ruling, engage in contemptuous conduct, are warned that their conduct will result in a finding of contempt, ignore the warning claiming not to have heard it, and later issue an apology. Such conduct in the future will not be tolerated.’”
January 10, 2006
Farmers’ motion to compel depositions or, in the alternative, for terminating sanctions. The plaintiffs depositions had not yet been completed. The trial court denied the motion for terminating sanctions but ordered the plaintiffs to appear for depositions and to pay to Farmers $2,880 in sanctions.
January 26, 2006
The plaintiffs’ ex parte application for protective order. Before the time set for their depositions, the plaintiffs filed an ex parte application for a protective order to protect their rights under the ADA in depositions. The application was denied.
February 21, 2006
The plaintiffs’ motion for reconsideration of discovery order. The plaintiffs moved for reconsideration of the court’s order compelling depositions and awarding sanctions. The motion was denied, and the plaintiffs have yet to pay the $2,880 in sanctions to Farmers. Concerning the sanctions, the court stated: “Plaintiffs have a history of avoiding their depositions.... The monetary sanctions were ordered because plaintiffs had failed to attend their depositions in the past and the motion was necessary to ensure that they would attend.”
March 2006 (specific date not in record)
Farmers’ motion to compel medical examinations. The plaintiffs refused to cooperate in submitting to independent medical examinations with respect to their claims of physical injuries. Therefore, it was necessary for Farmers to seek an order compelling independent medical examinations. The motion was granted.
March 2006 (specific date not in record)
Farmers’ motion to compel depositions of the plaintiffs’ experts. After the parties exchanged expert witness disclosures, Farmers attempted to set up depositions of the experts listed by the plaintiffs. The plaintiffs refused to cooperate, stating that Winston was ill. Farmers moved for an order compelling depositions of the plaintiffs’ experts, and the trial court granted the motion.
March 24, 2006
The plaintiffs’ ex parte application for a stay. With trial set for May 2006, the plaintiffs moved for an order staying the action for 90 days. In support of this motion, they filed the declaration of Winston stating that she had fallen and hit her head in a store a month earlier and was still recovering from the head injury. The trial court granted the motion and stayed the action for 90 days, until July 5, 2006. The court also ordered the plaintiffs to submit to independent medical examinations and to allow their experts to be deposed. Other than those actions, discovery was closed.
August 3, 2006
The plaintiffs’ ex parte application for a stay.
After the 90-day stay expired, the plaintiffs filed a motion for another stay, this one for 120 days. They based their application on allegations that Winston continued to be incapacitated after her fall and that Triche and Winston were the subject of an unrelated criminal prosecution. In support of their application, the plaintiffs filed reports of medical examinations that Winston had received in April 2006, the month that the 90-day stay was granted. No new medical reports were filed. The trial court denied the application. It stated: “This lawsuit is now three years old and its resolution has been delayed by plaintiffs’ medical complications and their refusal to cooperate in discovery, in particular their depositions. Given the age of this case, it [is] now time to proceed to trial.”
August 11, 2006
The plaintiffs’ ex parte application for a stay. Claiming that they had new medical information not submitted in support of their application for a stay, the plaintiffs filed another application for a stay. They claimed that Winston’s doctors had told her to avoid stressful activities that may induce heart problems and exacerbate her brain injury. They also claimed that the ADA required the court to make accommodations for the plaintiffs’ disabilities. The trial court denied the motion. It stated: “The Court will not consider repeated ex parte requests for the same relief.”
Although the appellant’s appendix does not present a complete record, it appears that the judge (Judge Loren E. McMaster) recused himself and the August 11, 2006, ruling on the ex parte application for a stay was vacated. The motion was then reheard (Judge Shelleyanne W.L. Chang) and denied. There is no transcript of this hearing. However, in denying the application, the court stated: “Plaintiff’s unfounded accusations of bias during oral argument reflect a misconceived strategy to intimidate the Court into issuing favorable rulings. This Court will not be influenced by, or intimidated into making rulings that are unsupported by the law or the facts. [¶]... While the Court declines at this time to find plaintiff in contempt, such misconduct in the future will not be tolerated and may be subject to appropriate sanctions by the Court.”
September 18, 2006
Farmers’ motion to reopen discovery. Having discovered during the independent medical examinations that the plaintiffs did not disclose all their treating physicians during discovery, Farmers moved to reopen discovery to obtain the plaintiffs’ medical records from those physicians. The court (Chang, J.) granted the motion.
October 16, 2006
Farmers’ motion for terminating sanctions or, in the alternative, evidentiary sanctions. After the plaintiffs’ failure to make their experts available to Farmers for depositions, Farmers filed a motion for terminating sanctions. In the alternative, Farmers requested evidentiary sanctions. The trial court (Chang, J.) issued the following order:
“[Farmers’] motion for terminating sanctions is denied. Plaintiffs designated 14 retained experts. On April 4, 2006, the court granted [Farmers’] motion compelling depositions of plaintiffs’ experts. [Farmers] served notices, and re-notices of deposition of the 14 disclosed experts. Plaintiffs did not object to the notices. Upon not receiving any response from plaintiffs regarding the deposition notices, [Farmers] issued deposition subpoenas to plaintiffs’ experts for their depositions, to be taken during the week of August 14-18. In response to the subpoenas, [Farmers] received numerous phone calls and letters from plaintiffs’ ‘retained’ experts, advising they had not been retained as experts and/or were not available on the dates noticed.
“Under the circumstances, where [Farmers’] motion to compel deposition of expert witnesses was granted, where plaintiffs’ 14 ‘retained’ experts did not appear for their scheduled depositions, were not retained by plaintiffs as experts as represented by them, and had not been notified by plaintiffs of their scheduled depositions, the request for an evidentiary sanction is granted. Plaintiffs are prohibited from presenting any expert witnesses at trial and prohibited from introducing any evidence that relates or pertains to the work performed by the ‘disclosed’ expert witnesses, including work performed prior to the disclosure of the experts. Plaintiffs are prohibited from introducing any evidence at trial regarding the subject matter disclosed in plaintiff[s’] expert witness disclosures and supporting declarations.
“In addition, a monetary sanction of $2151.46 (costs) plus attorney’s fees of $1200. [Sic.]”
April 17, 2007
The plaintiffs’ motion to set aside evidentiary sanctions. Six months after the trial court imposed evidentiary sanctions, the plaintiffs filed a motion to set aside those sanctions. Farmers requested the plaintiffs to withdraw the motion, as it was untimely. However, the plaintiffs refused. The plaintiffs did not include in the appellant’s appendix an order on their motion to set aside evidentiary sanctions. Accordingly, because they failed to do so, we presume the motion was denied. (See Aguilar v. Avis Rent a Car System, Inc. (1999) 21 Cal.4th 121, 149 [appellant bears burden of providing adequate record].)
May 7, 2007
The plaintiffs’ motion to recuse Judge Chang. Asserting Judge Chang was biased against them, the plaintiffs filed a motion to recuse her. In support, the plaintiffs claimed that her bias was apparent from her consistent rulings against them. Judge Chang denied the motion because it disclosed no legal ground for disqualification and it was untimely.
May 10, 2007
The plaintiffs’ peremptory challenge of Judge Chang. The plaintiffs then attempted a peremptory challenge of Judge Chang. Judge Chang found the peremptory challenge untimely and struck it. This court summarily denied a petition for writ of mandate challenging Judge Chang’s striking of the peremptory challenge. (Case No. C055919.)
June 6, 2007
Farmers’ motion to declare Winston and Triche vexatious litigants and require security. Citing two alternative provisions of Code of Civil Procedure section 391, subdivision (b), Farmers moved to have the court declare Winston and Triche vexatious litigants. Farmers claimed that Winston and Triche (1) initiated and unjustifiably allowed to remain pending at least five litigations in the preceding seven years (Code Civ. Proc., § 391, subd. (b)(1)) and (2) repeatedly filed unmeritorious motions and engaged in frivolous delaying tactics in this action while acting in propria persona (Code Civ. Proc., § 391, subd. (b)(3)).
The trial court granted Farmers’ motion to declare Winston and Triche vexatious litigants, based on both alternative grounds. The court (Chang, J.) ordered the plaintiffs to furnish $250,000 in security for the benefit of Farmers.
The plaintiffs sought, in this court, relief from the order declaring them vexatious litigants and requiring security. (Case No. C055967.) We issued a stay, pending opposition and further order of the court. After opposition was filed, we denied the requested relief and vacated the stay. The plaintiffs’ petition for review in the Supreme Court was denied.
Less than one month after the Supreme Court denied review, the plaintiffs filed, in this court, another petition for writ of mandate, seeking relief from the order declaring them vexatious litigants and requiring security. (Case No. C056593.) We summarily denied the petition two days after it was filed.
July 19, 2007
Order disqualifying Judge Chang. The court filed an order stating that Judge Chang had been disqualified pursuant to Code of Civil Procedure section 170.6.
August 24, 2007
Farmers’ motion to dismiss for failure to post security. The plaintiffs failed to post security as required by the order declaring them vexatious litigants. Farmers filed a motion to dismiss based on this failure, and the trial court (Judge Patricia C. Esgro) dismissed the action as to plaintiffs Winston and Triche.
On February 25, 2009, the clerk of this court sent the parties an oral argument waiver notice. Charel Winston responded on March 6, 2009, and requested oral argument. Consequently, on March 11, 2009, the court set the case for argument at 9:30 a.m. on April 14, 2009. The notice was sent to all parties at their address on record.
DISCUSSION
I
Appeal of Olga Nogues
The appeal must be dismissed as to Olga Nogues because she did not appeal from an appealable order.
Olga Nogues signed the notice of appeal that was filed on September 11, 2007. The notice stated that it was an appeal from the order of the court dated August 24, 2007. On that date, however, the court dismissed the action as to Alma Triche and Charel Winston but denied the motion to dismiss as to Olga Nogues. The order directed Nogues to show cause why she should not be declared a vexatious litigant pursuant to Code of Civil Procedure section 391, subdivision (b)(3). An inspection of the appellant’s appendix reveals no order dismissing the action as to Olga Nogues.
In their opening brief, the plaintiffs recognize this problem but simply state that Nogues joined in the appeal of Triche and Winston because “she expected, given the history of the court’s biased rulings, Judge Esgro to dismiss her case as well.” The plaintiffs assert that the trial court later dismissed the action as to Nogues, but they give no citation to the appellant’s appendix for this assertion.
We note that Farmers does not contend that the appeal must be dismissed as to Nogues. However, the lack of an appealable order “goes to our jurisdiction” and “we our dutybound to consider it on our own motion.” (Olson v. Cory (1983) 35 Cal.3d 390, 398.) We must dismiss on our own motion if we find that there is no appealable order. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674.)
The plaintiffs claim that the joinder of Nogues in this appeal was simply foresight. There are two problems with this argument: first, we have no jurisdiction without an appealable order, and second, even if the court eventually dismissed the action as to Nogues, her notice of appeal from the order directing her to show cause why she should not be declared a vexatious litigant did not preserve an appeal from a later dismissal.
As to Nogues, the order from which she appealed only required her to show cause why she should not be declared a vexatious litigant. That is not an appealable order. (See Code Civ. Proc., § 904.1 [listing appealable orders and judgments].) Therefore, her appeal must be dismissed as from a nonappealable order.
In two situations, a notice of appeal filed prematurely may be deemed to be filed immediately after the judgment. Those two situations are when a notice of appeal is filed (1) “after judgment is rendered but before it is entered” and (2) “after the superior court has announced its intended ruling, but before it has rendered judgment[.]” (Cal. Rules of Court, rule 8.104(e).) The notice of appeal as to Nogues fits neither of these exceptions. It was filed long before judgment was rendered or the trial court had announced its ruling dismissing her action, if indeed the trial court actually dismissed the action as to Nogues later.
Accordingly, the appeal must be dismissed as to Nogues.
II
Sufficiency of Vexatious Litigant Showing
The plaintiffs assert that Farmers’ showing was insufficient to sustain the trial court’s declaration that they are vexatious litigants pursuant to Code of Civil Procedure section 391. We conclude the showing was sufficient, and the trial court did not abuse its discretion.
Code of Civil Procedure section 391, subdivision (b) provides for several bases to find a litigant vexatious. The trial court made its determination based on two of the permitted bases: (1) prosecution of past actions and (2) use of frivolous tactics in the current action. (Code Civ. Proc., § 391, subd. (b)(1)&(3).) Any one of the bases is sufficient to sustain a vexatious litigant declaration. Therefore, we will focus only on the latter -- use of frivolous tactics in the current action.
In other words, even assuming, without deciding, that the plaintiffs are correct in their assertion that their prosecution of past actions was not sufficient to sustain a vexatious litigant declaration, the showing as to the plaintiffs’ use of frivolous tactics in the current action was sufficient to sustain the declaration. (Morton v. Wagner (2007) 156 Cal.App.4th 963, 969-970.)
“Any determination that a litigant is vexatious must comport with the intent and spirit of the vexatious litigant statute. The purpose of which is to address the problem created by the persistent and obsessive litigant who constantly has pending a number of groundless actions and whose conduct causes serious financial results to the unfortunate objects of his or her attacks and places an unreasonable burden on the courts. (Wolfe v. Strankman (9th Cir. 2004) 392 F.3d 358; People v. Harrison (2001) 92 Cal.App.4th 780.) Therefore, to find that a litigant is vexatious, the trial court must conclude that the litigant[’]s actions are unreasonably impacting the objects of [the opposing party’s] actions and the courts as contemplated by the statute.” (Morton v. Wagner, supra, 156 Cal.App.4th at pp. 963, 970-971.)
Pursuant to Code of Civil Procedure section 391, subdivision (b)(3), a person is a vexatious litigant who, “[i]n 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.” What constitutes “‘repeatedly’ and ‘unmeritorious’ under subdivision (b)(3), in any given case, is left to the sound discretion of the trial court. [Citation.]” (Morton v. Wagner, supra, 156 Cal.App.4th at p. 971.)
A trial court exercises its sound discretion when it determines whether a person is a vexatious litigant. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.) “We uphold the court’s ruling if it is supported by substantial evidence. [Citations.]” (Ibid.) “On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment. [Citation.]” (Ibid.)
In finding that the plaintiffs are vexatious litigants pursuant to Code of Civil Procedure section 391, subdivision (b)(3), the trial court cited seven frivolous motions made by the plaintiffs. These include:
1. ex parte application to continue the stay issued from March 9 to June 30, 2005 (filed June 30, 2005);
2. ex parte application for protective order regarding depositions (filed Jan. 27, 2006);
3. motion for reconsideration of order compelling the plaintiffs’ depositions (filed Mar. 23, 2006);
4. motion for stay of action (filed Aug. 9, 2006);
5. ex parte application for reconsideration of order denying stay (filed Aug. 11, 2006);
6. motion for reconsideration of order denying stay (filed Oct. 2, 2006); and
7. motion to set aside evidentiary sanctions (filed May 24, 2006).
The filing dates for these motions and applications do not match precisely the dates listed in the background provided above because the plaintiffs did not provide file-stamped copies of the documents in their appellant’s appendix. In any event, they do not claim that they did not file the motions and applications noted by the court.
These motions and applications, with the accompanying background summarized above, support a finding that the plaintiffs “while acting in propria persona, repeatedly file[d] unmeritorious motions, pleadings, or other papers... or engage[d] in other tactics that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc., § 391, subd. (b)(3).) The plaintiffs repeatedly resisted the efforts of Farmers to complete discovery. They made multiple motions to stay the proceedings based mostly on vague representations of disabilities. Even when they specified a potential disability resulting from Winston’s head injury, they provided outdated medical records. They filed untimely motions in an attempt to have the trial court reconsider prior rulings. And, generally, they maligned the court and opposing counsel, attempting to intimidate. The evidence was sufficient, and, based on that evidence, the trial court did not abuse its discretion in declaring that the plaintiffs are vexatious litigants.
For a time, Triche was represented by counsel. (See Code Civ. Proc., § 391, subd. (b)(3) [applying vexatious litigant finding to litigants acting in propria persona].) The plaintiffs, however, do not raise that circumstance as a reason to reverse the finding that they are vexatious litigants. In any event, the appellant’s appendix does not contain substitutions of attorneys showing when Triche was represented and it appears that Triche mainly was not represented by counsel in the proceedings in the trial court.
The plaintiffs contend that it was improper to base the vexatious litigant declaration on their motions and applications to stay the proceedings, which they claimed were necessary because of their disabilities. The plaintiffs argue: “The preponderance of motions, as follows, filed by appellants in this action relate to appellants’ disabilities and requests for medical stays.” As we noted, the plaintiffs’ assertions of disabilities were vague or based on outdated medical records. The assertions were insufficient to require the court to grant the plaintiffs’ motions as reasonable accommodations under the ADA.
The plaintiffs complain that “[a]s consequence to [sic] the court’s failure to accommodate appellants’ disabilities, respondent Farmers had an open-door advantage to manipulate the court in their favor.” These are the same unfounded accusations the plaintiffs repeatedly made in the trial court and for which they were chastised on more than one occasion. Nothing that the plaintiffs have shown us in the record leads reasonably to the conclusion that Farmers took advantage of the plaintiffs’ disabilities or that the court allowed itself to be manipulated. Consistent with what the trial court told the plaintiffs, we also will not be intimidated or manipulated by these accusations.
The plaintiffs’ assertion that the vexatious litigant declaration must be reversed is without merit.
III
Required Security
“If, after hearing the evidence upon the motion, 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, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix.” (Code Civ. Proc., § 391.3.) “‘Security’ means an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party’s reasonable expenses, including attorney’s fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.” (Code Civ. Proc., § 391, subd. (c).)
The plaintiffs assert that the amount of the security ordered by the court was “‘picked out of thin air’ by respondent Farmers Insurance without one iota of documented costs.” That is simply untrue. The amount was supported by (1) the declaration of counsel for Farmers stating that Farmers had incurred more than $46,000 in costs and more than $200,000 in attorney fees in this action and (2) the record of this action, including the plaintiffs’ numerous motions and applications and the additional proceedings that were required because of the plaintiffs’ refusal, at various times, to provide legally-required discovery. The evidence, both in the form of counsel’s declaration and the proceedings in the trial court record, support the amount of the security required.
IV
Probability of Prevailing
The plaintiffs also contend that the trial court erred in finding that they had no reasonable probability of prevailing. The contention is without merit.
“[T]o 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.” (Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1582-1583.)
In support of the vexatious litigant motion, Farmers presented evidence and argument concerning the effect of the evidentiary sanctions, the untimeliness of the complaint based on the contractual time bar, and the settlement and release as to the Shelby Circle claims. The trial court found: “[T]here is no reasonable probability that plaintiffs will prevail in the litigation due to the court’s evidentiary and issue sanction order, the bar of the contractual limitations period and because the Shelby Circle claims were settled and released.”
To show that the trial court erred in finding that the plaintiffs had no reasonable probability of prevailing, it would be necessary for the plaintiffs to establish that there was admissible evidence supporting their causes of action. The plaintiffs, however, do not attempt to establish that there was admissible evidence supporting their causes of action. Instead, they contend that there was admissible evidence of emotional distress that they suffered. Without reasoning concerning how this purportedly admissible evidence of emotional distress overcomes the trial court’s conclusions, the plaintiffs’ argument does not succeed in showing that the ruling was erroneous.
V
Mental Capacity of Plaintiff Winston
The plaintiffs contend that the vexatious litigant declaration and the dismissal of their action were “clear error” because there was a question concerning Winston’s mental capacity at the time resulting from her head injury. In support of this proposition, the plaintiffs cite Penal Code section 1368, which requires a court to inquire concerning the mental competence of a criminal defendant if a doubt arises in the mind of the judge concerning mental competence. Recognizing that Penal Code section 1368 applies to criminal defendants only, the plaintiffs assert that “[p]arties in civil litigation have an analogous due process right to be present in the courtroom and to meaningfully participate in the proceedings unless their exclusion furthers important governmental interests. (See Helminski v. Ayerst Labs (6th Cir. 1985) 766 F.2d 208, 213, cert. denied, 474 U.S. 981 [106 S.Ct. 386]). Moreover, there is the issue of the judgment itself. A judgment against an incompetent party without the assistance of counsel may be vacated. (Abbott v. Industrial Accident Commission (1936) 12 Cal.App.2d 478 [55 P.2d 927]).” (Bold text in original.)
The assertion fails because there is no evidence that Winston was incompetent either during the proceedings or when the trial court dismissed the action. The appellant’s appendix, at most, reveals that Winston suffered a head injury and that all plaintiffs had undisclosed disabilities. Without evidence of actual mental incompetence, the plaintiffs cannot prevail on an argument that a judgment against an incompetent party without the assistance of counsel must be vacated.
VI
Dismissal of Nogues’s Action
Nogues filed a petition for Chapter 11 bankruptcy protection on September 26, 2007, a month after the trial court entered the dismissal from which the plaintiffs appeal. The plaintiffs assert that the dismissal as to Nogues violated the automatic bankruptcy stay. Farmers responds that the bankruptcy stay did not apply because Nogues is a plaintiff in this case, not a defendant. We conclude that we need not consider this contention because (1) Nogues filed the bankruptcy petition after the trial court in this case entered its dismissal order as to Triche and Winston and (2), as noted above, we must dismiss the appeal as to Nogues.
VII
Alleged Bias of Trial Court
The plaintiffs assert that the “constitutional integrity” of the judgment is “tainted” by what they perceive as a bias against the plaintiffs in the trial court. They contend that, after they moved to disqualify Judge Chang and filed a peremptory challenge against her, she could not issue further orders in this action. The contention is without merit because the plaintiffs have not established that Judge Chang’s denial of their motion to disqualify her and the striking of their peremptory challenge were error.
It would defy logic and common sense to accept the plaintiffs’ argument that the mere filing of their motion to disqualify and peremptory challenge, though untimely and unmeritorious, is sufficient to disqualify a judge. If this were true, any litigant could disrupt the judicial process by filing frivolous motions and challenges.
Because the plaintiffs do not cite legal authority and present reasoning based on that authority to establish that Judge Chang erred in denying the motion to disqualify her or in striking the peremptory challenge, they have forfeited consideration of the question. “[I]t is established that ‘... an appellate brief “should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” [Citation.] [¶]... This court is not inclined to act as counsel for... appellant and furnish a legal argument as to how the trial court’s rulings... constituted [error].’ [Citation.]” (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
The plaintiffs cite People v. Freeman (2007) 53 Cal.Rptr.3d 898. That citation, however, is improper because the Supreme Court granted review. (Cal. Rules of Court, rules 8.1105(e)(1); 8.1115(a).)
DISPOSITION
As to Olga Nogues, the appeal is dismissed. As to Alma M. Triche and Charel Winston, the judgment is affirmed. Farmers is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: HULL, J., BUTZ, J.
On April 10, 2009, Winston filed a substitution of attorneys substituting attorney Gilbert E. Maines as her attorney. At the same time, attorney Maines requested a continuance of oral argument. The court denied the motion for a continuance.
On April 14, 2009, neither the plaintiffs nor attorney Maines appeared for oral argument. The attorney for Farmers appeared and submitted the case on the briefs.