Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2010-00065672-CT-NP-CTL, Ronald S. Prager, Judge.
O'ROURKE, J.
Cornelius Ogunsalu, who is self-represented, appeals from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrer of defendants Tom Lewis, Jeryl Harder, Luis Charles, Southern California Seminary, Christian Unified School District, San Diego Christian College and Shadow Mountain Community Church, Inc. and granted defendants' motion to strike Ogunsalu's punitive damage allegations. Ogunsalu also challenges an order declaring him a vexatious litigant, requiring him to post security, and imposing prefiling requirements. Among other arguments, Ogunsalu contends (1) his complaint states a valid cause of action for invasion of privacy; (2) he was prejudiced by defense counsel's "false and misleading" motion practice; (3) the court disregarded proper procedure and abused its discretion by refusing to consider his late-filed opposition to the vexatious litigant motion; and (4) the court erred by declaring him a vexatious litigant and imposing a $25,000 bond requirement.
We conclude Ogunsalu's complaint states a cause of action for invasion of privacy, and thus the trial court erred by sustaining defendants' demurrer as to that cause of action. However, we reject Ogunsalu's challenges concerning the court's vexatious litigant order, and accordingly affirm that order. Because that order requires Ogunsalu to furnish security in order to proceed with his case, we remand the matter with instructions that the trial court stay the action (Code Civ. Proc., § 391.6), give Ogunsalu a reasonable time within which to post the required security, and if no security is posted, dismiss the action (§ 391.4).
All statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2010, Ogunsalu, a student at the Southern California Seminary (Seminary), filed a complaint against certain individual defendants, the Seminary, and other entities, alleging causes of action for invasion of privacy and seeking damages and injunctive relief. He alleged that on or about April 27, 2009, defendants Tom Lewis and Lewis Charles, respectively the director of information technology and web services and an information technology technician for the other entity defendants, planted a spyware program — the "Bradford Security Persistent Agent" (hereafter the Bradford software) — on his laptop, intentionally misrepresenting to him that the software was necessary to sign on to the Seminary website. Ogunsalu alleged the intrusion was offensive and objectionable to him in that all of the defendants used the Bradford software to gain remote access on his laptop, and the defendants acted within the scope of their authority without his consent and violated his right to privacy by remotely accessing his laptop to: view his internet activities, capture all of his keystrokes and passwords to accounts in his name, hack into his private email communications, delete files and folders stored by him on his laptop, investigate his personal affairs to harass him, and send malicious viruses that eventually crashed his laptop. Ogunsalu submitted a declaration describing in some detail circumstances occurring before, during and after the defendants allegedly installed the Bradford software on his computer.
Defendants demurred to Ogunsalu's complaint and moved to strike his punitive damages allegations. In part, they asserted Ogunsalu had "openly and implicitly consented to the software installation." (Underscoring omitted.) They argued he failed to allege facts to support any cause of action for intrusion into a private place or matter, the alleged conduct was not offensive or objectionable to a reasonable person, and he could not state an invasion of privacy cause of action under the California Constitution. In support of their motion to strike, they argued Ogunsalu had not complied with procedural requirements for asserting punitive damages against a religious organization, or alleged specific conduct supporting such damages against any defendant.
In May 2010, defendants moved to declare Ogunsalu a vexatious litigant, and sought an order that he furnish security and also be subject to the prefiling requirements of section 391.7. In part, they maintained he met the definition of a vexatious litigant under section 391, subdivisions (b)(2) and (b)(3), in that he had continued to personally litigate or attempt to litigate the validity of determinations made against him, and also repeatedly filed unmeritorious motions, pleadings and appeals in federal court and in the present litigation. They sought judicial notice of numerous federal court pleadings including ex parte applications brought by Ogunsalu and orders denying those applications, notices of appeal, and various motions filed by Ogunsalu and orders denying those motions.
Ogunsalu did not timely file written opposition to either the demurrer or the vexatious litigant motion. On the day of the hearing, the trial court stated in that circumstance it would "review carefully what the grounds are for the motions and scrutinize them carefully. If they have made a showing, the motions are then granted, they are unopposed." Ogunsalu claimed he was "overwhelmed" and that a different superior court judge — Judge Steven R. Denton — had accepted his filing in another vexatious motion hearing taking place on the same day (Ogunsalu v. Gill et al., 2010, Case No. 37-2010-00065408-CU-NP-CTL, consolidated with case No. 37-2010-00065547-CU-NP-CTL). He also blamed his inability to timely oppose the motions on illness, and an "invasive surgery procedure" that he was preparing to undergo. The court explained that Ogunsalu knew how to call into the court and also to appear ex parte. The court advised Ogunsalu that it believed defendants' motions were meritorious, and that it was incumbent upon him to present his opposition in a timely way.
On June 4, 2010, the court sustained the demurrer without leave to amend, and granted defendants' motion to strike Ogunsalu's punitive damage allegations. At the same time, it granted defendants' motion to declare Ogunsalu a vexatious litigant under section 391, subdivisions (b)(2) and (b)(3). It ordered that Ogunsalu post security in the amount of $25,000 by June 11, 2010, and he "shall be prohibited from filing any new litigation without first obtaining leave from the presiding judge of the court where the litigation is proposed to be filed" under section 391.7. On June 21, 2010, the court entered judgment in defendants' favor. On June 25, 2010, Ogunsalu filed a notice of appeal from the judgment.
Ogunsalu does not challenge the court's ruling on defendants' motion to strike and so we will not disturb that order.
DISCUSSION
I. Defendants' Request to Dismiss Appeal
Defendants request that we dismiss Ogunsalu's appeal for his failure to adhere to procedural requirements for appellate briefs. In particular, they point out Ogunsalu, who must be treated like other litigants or attorneys and follow correct rules of procedure, does not cite to record evidence to support his various arguments and conclusory factual assertions.
California Rules of Court, rule 8.204(a)(1)(C) provides that each appellate brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." Courts interpret this rule to mean that the assertions of fact set forth in an appellate brief must be supported by a citation to the volume and page number of the record where that fact appears. (See Brewer v. Murphy (2008) 161 Cal.App.4th 928, 936, fn. 4 [defendants' assertion of fact not supported by citation to record]; see also In re S.C. (2006) 138 Cal.App.4th 396, 406 [party must cite to the record showing exactly where objections in the trial court were made].) Because Ogunsalu "recites... '[facts]' without citation to the record" in violation of this appellate rule, we are entitled to disregard those portions of his brief. (Rule 8.204(a)(1)(C); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947; Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451.)
All rule references are to the California Rules of Court.
Nor has Ogunsalu presented a proper statement summarizing all "significant facts, " as required by rule 8.204(a)(2)(C). (See Ajaxo Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 50.) In the context of this appeal, Ogunsalu's factual statement should set forth a summary of all material and properly pleaded allegations of his complaint, which, on review of the judgment of dismissal following defendants' successful demurrer, this court would assume to be true. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Usually, an appellant's failure to state all of the facts fairly in his brief forfeits any alleged error. (See In re S.C., supra, 138 Cal.App.4that p. 407; Ajaxo Inc., at p. 50; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274.)
Rule 8.204 does not authorize this court to dismiss Ogunsalu's appeal for these rules violations; it indicates that an order striking a brief must be combined with leave to file a new brief in compliance with the rules. We did not order Ogunsalu to refile a new, complying brief or advise him that without one, he risked dismissal of his appeal. (E.g., Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117.) Were we to strike Ogunsalu's brief for the above-mentioned rules violations, we would be compelled to permit him another opportunity to file a brief in compliance with those rules. Such an order is unnecessary, however. Even if we disregard Ogunsalu's technical rule violations, the procedural circumstances of this case and the substance of his briefing compels us to conclude (1) as to the sufficiency of Ogunsalu's pleadings, the superior court erred in sustaining defendants' demurrer without leave to amend, and (2) as to the vexatious litigant order requiring him to post security or suffer dismissal and his other appellate contentions, Ogunsalu has advanced meritless arguments or abandoned his appeal.
Rule 8.204(e) provides in part: "If a brief does not comply with this rule:... If the brief is filed, the reviewing court may, on its own or a party's motion, with or without notice: [¶] (A) Order the brief returned for corrections and refiling within a specified time; [¶] (B) Strike the brief with leave to file a new brief within a specified time; or [¶] (C) Disregard the noncompliance."
Here, the applicable standard of review requires us to assess the superior court's order sustaining defendants' demurrers de novo, exercising our independent judgment as to whether, as a matter of law, the complaint states a cause of action on any available legal theory. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 (Sheehan); Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439-440.) We assume the truth of all properly pleaded facts and reasonable inferences that may be drawn from those facts. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810; Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 204.) It is of no moment that Ogunsalu did not advance arguments regarding his claims in opposition to the demurrer, as he may advance on appeal new legal theories explaining why his complaint's allegations state a cause of action. (Lake Almanor Associates L.P. v. Huffman-Broadway Group, Inc. (2009) 178 Cal.App.4th 1194, 1205, fn. 8; Alfaro v. Community Housing Imp. System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1396-1397.) And his failure to request leave to amend in the trial court does not prevent him from making such a request for the first time on appeal. (§ 472c, subd. (a); City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746.)
We reject defendants' arguments to the contrary, which rely on inapposite cases not involving demurrers presenting questions of pure law. (See Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 489 [dismissal for failure to respond to discovery or respondent's motions to compel answers and dismiss], disapproved on another ground in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4; Sexton v. Superior Court (1997) 58 Cal.App.4th 1403 [failure to oppose late-filed discovery motion to compel on grounds of untimeliness]; Longshore v. Pine (1986) 176 Cal.App.3d 731 [failure to timely file opposition to motion to dismiss for failure to prosecute].).
Defendants unpersuasively maintain Ogunsalu forfeited his arguments, but again, their authorities do not involve attacks on the pleadings. (See e.g., K.C. Multimedia, Inc. v. Bank of America Technology & Operations (2009) 171 Cal.App.4th 939, 948-949 [forfeiture found for appellant's failure to challenge trial court's pretrial procedure for ruling on a preemption issue]; Telles Transport, Inc. v. W.C.A.B. (2001) 92 Cal.App.4th 1159, 1167 [forfeiture and invited error based on deliberate trial strategy to exclude certain records from evidence]; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 185, fn. 1 [court denied motion to augment record on appeal of ruling on petition to compel arbitration for appellants' failure to inform trial court of amendment to complaint].) Indeed, some of defendants' cited cases support our conclusion. In one, the court rejected a waiver argument on grounds a question of law may be raised for the first time on appeal (Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 712-713, disagreed with on other grounds in Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 536-537), and in another, the court more specifically pointed out that the viability of a tort claim on demurrer is a "question of law that could have been raised for the first time on appeal." (JRS Products, Inc. v. Matsushita Elec. Corp. of America (2004) 115 Cal.App.4th 168, 179.) Accordingly, we will review the merits of the court's order sustaining defendants' demurrer.
II. Demurrer
Ogunsalu's challenge to the order sustaining defendants' demurrer is framed as two questions: (A) Did respondents Tom Lewis and Luis Charles invade his privacy in violation of the California Constitution; and (B) Were they acting in the course of their employment to impose vicarious liability on their employers? These questions, which are unhelpful in view of the pertinent appellate standards set forth above, head Ogunsalu's arguments setting forth facts that are unaccompanied by record citations. Nevertheless, we review Ogunsalu's complaint to determine whether his properly pleaded allegations state a cause of action on any possible legal theory. We disregard contentions, deductions or conclusions of law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.).
A. Invasion of Privacy Claims Under the California Constitution and Common Law
A party claiming a violation of California's constitutional right to privacy must establish " '(1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest.' " (Sheehan, supra, 45 Cal.4th at p. 998; see also Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 287.) The privacy interests include " 'conducting personal activities without observation, intrusion, or interference' [citation], as determined by 'established social norms' derived from such sources as the 'common law' and 'statutory enactment.' " (Hernandez, at p. 287.) The reasonableness of a party's expectation of privacy "rests on an examination of 'customs, practices, and physical settings surrounding particular activities' [citation], as well as the opportunity to be notified in advance and consent to the instrusion." (Ibid.) As for the third element, "the plaintiff must show that the intrusion is so serious in 'nature, scope, and actual or potential impact as to constitute an egregious breach of the social norms.' " (Ibid.)
Sheehan explains that these are threshold elements that may be used to screen out claims that do not involve a significant intrusion on a privacy interest protected by the state constitution. (Sheehan, supra, 45 Cal.4th at p. 998.) "These elements do not eliminate the necessity for weighing and balancing the justification for the conduct in question against the intrusion on privacy resulting from the conduct in any case that raises a genuine, nontrivial invasion of a protected privacy interest...." (Id. at p. 999.)
An invasion of privacy cause of action under the common law tort of intrusion contains similar standards: "A privacy violation based on the common law tort of intrusion has two elements. First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person." (Hernandez v. Hillsides, Inc., supra, 47 Cal.4th 272, 286.) "As to the first element of the common law tort, the defendant must have 'penetrated some zone of physical or sensory privacy... or obtained unwanted access to data' by electronic or other covert means, in violation of the law or social norms. [Citations.] In either instance, the expectation of privacy must be 'objectively reasonable.' [Citation.] In Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907... this court linked the reasonableness of privacy expectations to such factors as (1) the identity of the intruder, (2) the extent to which other persons had access to the subject place, and could see or hear the plaintiff, and (3) the means by which the intrusion occurred." (Henderson, at pp. 286-287.)
"The second common law element essentially involves a 'policy' determination as to whether the alleged intrusion is 'highly offensive' under the particular circumstances. [Citation.] Relevant factors include the degree and setting of the intrusion, and the intruder's motives and objectives. [Citations.]... 'California tort law provides no bright line on ["offensiveness"]; each case must be taken on its facts.' " (Hernandez v. Hillsides, Inc., supra, 47 Cal.4th at p. 287.)
B. Analysis
Ogunsalu's complaint is simple: Setting aside his conclusions of law and contentions, he alleges that on April 27, 2009, defendants Lewis and Charles physically took his laptop computer without his consent and downloaded "computer source codes" and a "spyware" program (the Bradford software), misrepresenting to him that the software was necessary to sign on to the Southern California seminary website. He alleges the Bradford software "has been used by all defendants to remotely access, monitor, electronically capture and store all of plaintiff's activities from April 2009 up until December, 2009" and to gain remote access to his laptop "at all times including when plaintiff was in the privacy of his dormitory room." According to Ogunsalu's allegations, defendants' monitoring extended to his passwords and "login" information to bank accounts, private email communications and internet activities, including social websites.
In his accompanying declaration, Ogunsalu expands on his allegations, explaining that the men saw he was having difficulties accessing the Internet and informed him he had to download software on his computer to sign on to the Seminary blackboard. After they "insisted" that his computer had to be "registered, " they used his laptop separately and downloaded the software in front of him. Ogunsalu states the computer was one he had "bought... a month earlier." He avers, "I was unable to loudly protest because I did not want to make a scene and because I was a new student at the seminary." Later in his declaration, Ogunsalu states he complained to various school representatives about Lewis and Charles placing software on his computer without his permission. In assessing the adequacy of Ogunsalu's pleadings, we may consider facts revealed in exhibits attached to the pleadings and give them precedence over those facts alleged within his pleadings. (Gilman v. Dalby (2009) 176 Cal.App.4th 606, 613; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567; Dodd v. Citizens Bank (1990) 222 Cal.App.3d 1624, 1627.)
We conclude these allegations — which we must accept as true — were sufficient to survive defendants' demurrer on an invasion of privacy cause of action. Ogunsalu had a legally protected privacy interest, and a legitimate, objectively reasonable expectation of privacy, in the information stored on his personal computer. (See United States v. Heckenkamp (9th Cir. 2007) 482 F.3d 1142, 1146 [university student had legitimate, objectively reasonable expectation of privacy in his personal computer in his dormitory room, and act of attaching his computer to the university network did not extinguish his legitimate, objectively reasonable privacy expectations in view of the absence of a university monitoring policy on the network], citing United States v. Lifshitz (2d Cir. 2004) 369 F.3d 173, 190 ["Individuals generally possess a reasonable expectation of privacy in their home computers"].) In our view, there is little distinction between the situation here, where defendants are alleged to have misrepresented the nature of software to gain access to the contents of Ogunsalu's personal computer, and the third party utilizing a misrepresentation to obtain access to personal information as was held sufficient to constitute an invasion of privacy cause of action for improper intrusion in Taus v. Loftus (2007) 40 Cal.4th 683, at pages 731-732.
We further conclude the alleged intrusion was sufficiently serious for purposes of a constitutional invasion of privacy claim by virtue of Ogunsalu's allegations that the defendants "monitor[ed], captur[ed] and stor[ed]" all of his offline and online activities, including while he was in his dormitory room, and captured personal information including passwords and login codes for his bank and social networking accounts. (See e.g., Taus v. Loftus, supra, 40 Cal.4th at p. 740 [finding highly offensive conduct in a person's intentional misrepresentation of herself as an associate or colleague of a mental health professional in order to extract personal information from a person having a close personal relationship with that mental health professional]; Egan v. Schmock (N.D.Cal.2000) 93 F.Supp.2d 1090, [allegations that a neighbor filmed plaintiffs in their home is sufficient to show a serious invasion of privacy under the California Constitution].)
Defendants' demurrer was in part premised on the notion — of which they sought judicial notice — that the Bradford software did not allow remote access to an individual's computer, but only checked the security status of students' personal computers before granting them network access. They argued that this information was a fact or proposition that was "not reasonably subject to dispute and... capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy" by reference to the company websites. Defendants' assertion that judicial notice of these facts lies under Evidence Code section 452, subdivision (h) is meritless. This section permits judicial notice of facts that are "widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like...." (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) The operation of private software is not such a fact. Nor was judicial notice available for the company's website content. The authorities cited by defendants involved not private websites or publications, but websites containing official acts and public records. (Evid. Code, § 452, subds. (c), (h); Shaw v. People ex rel. Chiang (2009) 175 Cal.App.4th 577, 606, fn. 10 [taking judicial notice of Department of Transportation website containing an Department definition of the term "mass transportation"]; Californians v. Fair Representation — No on 77 v. Superior Court (2006) 138 Cal.App.4th 15, 25, fn. 3 [granting judicial notice of Fair Political Practices Commission's Addendum to Campaign Manuals as a publication of an public agency].)
On appeal, defendants argue that Ogunsalu's complaint reveals he implicitly consented to installation of the software by his failure to protest when Lewis and Charles took his computer. It is true that to establish a reasonable expectation of privacy, the plaintiff " 'must have conducted himself... in a manner consistent with an actual expectation of privacy, i.e., he... must not have manifested by his... conduct a voluntary consent to the invasive actions of defendant. If voluntary consent is present, a defendant's conduct will rarely be deemed "highly offensive to a reasonable person" so as to justify tort liability.' " (Sheehan, supra, 45 Cal.4th at p. 1000.) The validity of the consent theory depends on the totality of the circumstances. (Ibid.) Here, Ogunsalu in both his pleadings and declaration asserts that defendants misrepresented the purpose of the software, telling him it was solely to permit him to sign on to the Seminary website. We decline to infer authorization or voluntary consent from these circumstances. (Civ. Code, § 1567; Architects & Contractors Estimating Services, Inc. v. Smith (1985) 164 Cal.App.3d 1001, 1007 [consent is not free when procured by fraud or mistake]; Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990, 1006, fn. 16.) Even if we were to conclude Ogunsalu's pleadings showed he voluntarily relinquished his computer to defendants and reduced his expectations of privacy accordingly, such a conclusion would not defeat his cause of action, as "a person can be deemed to consent only to intrusions that are reasonable under the circumstances." (Sheehan, 45 Cal.4th at p. 1001.)
Defendants also maintain Ogunsalu has not alleged what information was private, how it was private, when it was accessed, and how it was exposed. They further maintain that "[t]he installation of software onto a student's computer to ensure anti-virus software is up to date is not conduct offensive or objectionable to a reasonable person." On the latter point, we have already explained that judicial notice was not proper as to the purported operation or limitations of the software. Ogunsalu's factual allegations are that defendants' software was in fact "spyware" that monitored his private and personal information, including passwords to financial institutions and social networks, without his consent. We conclude, assuming these allegations true as we must, they demonstrate conduct on the defendants' part that is highly offensive to a reasonable person. With regard to defendants' first point, a plaintiff's obligation is to plead ultimate facts necessary for a viable claim. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550 [a complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts]; Doheny Park Terrace Homeowners Assn. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1098-1099.) We have found no case, and defendants do not point to any, standing for the proposition that Ogunsalu must plead evidentiary facts, and their insistence that Ogunsalu set forth such facts is misplaced. Nor do defendants cite authority requiring particularity in pleading an invasion of privacy claim similar to a fraud claim.
As far as the privacy of Ogunsalu's information, defendants argue Ogunsalu's use of the Internet "itself is not a private activity." The assertion is without reasoned legal analysis, and for that reason we may disregard it. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862; In re S.C., supra, 138 Cal.App.4th at p. 411.) In any event, defendants' cited cases — M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623 and Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1130 — do not assist them. In M.G., the appellate court rejected the defendants' argument that a photograph of a little league team (which defendants had published in an article about child molestation in youth sports) was not private because the plaintiffs had played a public sport, the photograph was taken on a public field, and the coach, a convicted child molester, was publicly known to have coached the team. (M.G., at p. 632.) Pointing out there was no evidence the team photograph was widely circulated and plaintiffs did not consent to its use, the court explained that "the claim of a right to privacy is not ' "so much one of total secrecy as it is of the right to define one's circle of intimacy — to choose who shall see beneath the quotidian mask." ' Information disclosed to a few people may remain private." (Ibid., footnotes omitted.) In Moreno v. Hanford Sentinel, Inc., the appellate court, on review of an order sustaining a demurrer without leave to amend, rejected the plaintiff's invasion of privacy claim based on the publication of a journal entry she had posted on an internet site, myspace.com. (Moreno, 172 Cal.App.4th at pp. 1128-1129.) The court held the entry was not private; having been posted on a site available to any person with a computer, she had "opened it to the public eye." (Id. at p. 1130.) Under those circumstances, "no reasonable person would have had an expectation of privacy regarding the published material." (Ibid.) These authorities do not require us to reject Ogunsalu's invasion of privacy claim based on allegations that defendants monitored and collected his personal information from a personal laptop, some of which was alleged to have been protected by passwords to his bank accounts and social network sites. We cannot infer the information is inherently public or disclosed to others so as to eliminate or diminish Ogunsalu's reasonable expectations of privacy.
Finally, citing TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 453 (TBG), defendants assert Ogunsalu had "advance notice that [his] computer may be monitored, " thus relinquishing his privacy rights in the information stored upon it. It is true that a student's privacy interests may be weakened or even extinguished when he or she uses a university owned computer in a student center, a university library, or the like. (See United States v. Heckenkamp, supra, 482 F.3d at p. 1146; see, e.g., United States v. Butler (D.Me.2001) 151 F.Supp.2d 82, 84.) But we reasonably infer from Ogunsalu's allegations that the laptop computer at issue was his own. Further, he does not allege the Seminary had any computer monitoring policy or that he handed defendants his computer knowing of any such policy.
In Heckenkamp, the university's computer policy contained a limited exception to the no monitoring rule for instances where "essential to... protect the integrity of the University and the rights and property of the state, " but that exception was deemed insufficient to diminish the student's expectation of privacy. (Heckenkamp, at pp. 1146-1147.)
Ogunsalu's allegations bring this matter outside of TBG, in which an employer provided computers for an employee's office and home use. The employee expressly consented in writing to have his computer use monitored by authorized company personnel on an as needed basis, and agreed that his communications transmitted by computer were not private. (TBG, supra, 96 Cal.App.4th at p. 446.) The appellate court (in the context of the employer's writ petition following denial of its discovery demand for the employee's home computer) held the employee had no reasonable expectation of privacy in the home computer, which was the property of the employer, even though the employee used the computer for personal matters. (Id. at p. 453.) Ogunsalu's allegations, drawing all inferences in his favor, do not establish that his computer at all belonged to defendants, or that he was subject to some monitoring policy that would diminish his privacy expectations.
C. Vicarious Liability
To the extent the trial court sustained Ogunsalu's demurrer as to the entity defendants on grounds he did not sufficiently allege liability under principles of respondeat superior or ratification, Ogunsalu should have been granted leave to amend to allege that Lewis and Charles were acting at all times in the course of their employment; that the entities were aware of and/or authorized their acts; and that their acts were as a matter of law the acts of the entities for which they worked. (See C.R. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110-1112; Golceff v. Sugarman (1950) 36 Cal.2d 152, 154; City of Stockton v. Superior Court, supra, 42 Cal.4th at p. 747 [if a plaintiff has not had an opportunity to amend the complaint in response to a demurrer, leave to amend is liberally allowed as a matter of fairness unless the complaint shows on its face it is incapable of amendment].)
III. Claim of Prejudice by "False and Misleading Motion Practice" of Defense Counsel
Ogunsalu asks this court to decide whether he was "prejudiced by the overwhelming deliberately false and misleading motion practice of respondents' counsels [sic]...." (Capitalization omitted.) He maintains defense counsel acted with the purpose to deprive him of his due process rights and divert attention away from his invasion of privacy action. Ogunsalu cites to rules of professional conduct imposing a duty of honesty on members of the State Bar and requiring them to abstain from misleading the court (Rules Prof. Conduct, rule 5-200 ) as well as other authorities involving various matters of attorney discipline.
Rule 5–200(A) and (B) of the Rules of Professional Conduct provide: "In presenting a matter to a tribunal, a member: [¶] (A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth; [¶] (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law...."
Ogunsalu's sole factual support for these arguments is a bare assertion ("[m]any of the motions filed by respondents' counsels [sic] were supported by false, misleading, distorted and fabricated declarations by Tracy Warren") followed by a string of citations to the first page of various pleadings filed in the superior court. In short, other than asserting an ipse dixit, Ogunsalu does not identify counsel's assertedly false or misleading statements, describe how or why counsel's declarations are "deliberately" false or misleading, or explain how any of the pleadings warrant a conclusion that counsel violated any rules of professional conduct. We decline to address Ogunsalu's unsubstantiated accusations that defense counsel intentionally violated the State Bar Rules of Professional Conduct.
Nor does Ogunsalu demonstrate that he raised the asserted violations in the trial court by either moving for sanctions (see § 128.7) or otherwise objecting in the superior court to any of counsel's pleadings on grounds they were false or somehow improper. It was for the superior court to resolve such distinctly factual questions in the first instance. (In re Zeth S. (2003) 31 Cal.4th 396, 405 [an appeal reviews the correctness of a judgment upon a record of matters that were before the trial court; the " 'essential distinction between the trial and appellate court [is] that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law' "]; see e.g., In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531 [appellate court is not a second trier of fact]; Cope v. Davison (1947) 30 Cal.2d 193, 203 ["A trial judge is in a better position than an appellate court to determine whether a verdict resulted wholly, or in part, from the asserted misconduct of counsel and [the trial court's] conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong"].) We perceive no basis for reversal on grounds of defense counsel's motion practice.
IV. Vexatious Litigant Order
Ogunsalu advances several somewhat related and intermingled challenges to the superior court's order declaring him a vexatious litigant. He maintains (1) the court abused its discretion by refusing to accept his late opposition, denying him an oral hearing, and disregarding statutory procedures; and (2) the language and legislative intent of the vexatious litigant statutes do not contemplate imposition of a section 391.7 prefiling order based on a determination of vexatious litigant status made minutes apart by different courts on the same day in favor of the same defendants. Notably, Ogunsalu does not meaningfully argue that the record lacks substantial evidence demonstrating he meets the statutory definition of a vexatious litigant. (See Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1169 [applying substantial evidence standard of review].) He merely makes the point without any reasoned authority or analysis, and without placing the argument under a separate heading. Under these circumstances, we disregard any such merits-related argument as forfeited. (See rule 8.204(a)(1)(B); Teachers Retirement Bd. v. Genest (2007) 154 Cal.App.4th 1012, 1038, fn. 6; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 ["One cannot simply say the court erred, and leave it up to the appellate court to figure out why"].)
A. Refusal to Accept Late Opposition
Ogunsalu contends the superior court misunderstood the scope of its discretion when it refused to accept his late opposition to defendants' motion to declare him a vexatious litigant. He maintains it also misunderstood the facts and law, and relied upon false declarations presented by defendants' counsel to the court. Ogunsalu purports to recite procedural facts as to telephone calls and other communications he had assertedly made to the court clerks, as well as his inability to contact a clerk to advise her of his late opposition. According to Ogunsalu, an ex parte hearing took place on June 1, 2010, before the hearing on the vexatious litigant motion, and he asserts he "does not know exactly what transpired during the ex parte hearing... [but] [¶]... [¶]... [W]hatever transpired in said ex parte appearance... violated his due process rights under both the vexatious litigant statutes... and the 14th Amendment of the U.S. Constitution." Ogunsalu accuses defense counsel of unethical conduct and violations of California rules of professional conduct.
The fatal flaw with the forgoing argument is that under settled appellate principles we must presume the correctness and regularity of the court's rulings, unless Ogunsalu affirmatively demonstrates otherwise with reasoned argument and authority. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Wint v. Fidelity & Casualty Co. (1973) 9 Cal.3d 257, 265; Winograd v. American Broadcasting County. (1998) 68 Cal.App.4th 624, 631; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, p. 769.) In other words, without evidence as to what occurred at the ex parte hearing, we cannot assume — as Ogunsalu would have us do — that the court erred in some way or that counsel acted unethically. Further, we disregard Ogunsalu's assertions as to his communications to the court clerks, as they are made without supporting evidence or record citation. This court is not required to make an independent search of the record for evidence that supports Ogunsalu's assertions. (In re S.C., supra, 138 Cal.App.4th at p. 407; Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246; Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768; e.g., Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
Ogunsalu essentially repeats these same contentions in a separate section of his brief in which he asserts violation of his due process rights and "discovery abuses" engaged in by defendants' counsel Tracy Warren. He cites no record evidence for any of his factual assertions about the proceedings below and asserted discovery violations, nor does he demonstrate that he sought relief below in the superior court for these asserted discovery violations. Accordingly, we do not address these arguments.
Ogunsalu further criticizes the superior court judge for failing to accept his late filing and give him the right to present evidence at the hearing on defendants' vexatious litigant motion. He relies on sections 391.1 and 391.2, which he maintains require the court to hold a hearing on his vexatious litigant status in which it "shall consider such evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion." (§ 391.2.) Ogunsalu asserts: "Appellant's rejected opposition contained written evidence and an affidavit that clearly showed that appellant did not fit the statutory definition of a vexatious litigant."
Ogunsalu has not demonstrated a basis for reversal by these arguments. Even if we were to interpret section 391.2 to require the trial courts to consider any material evidence, no matter how delayed or untimely presented, in opposition to a vexatious litigant motion, Ogunsalu has simply not shown any abuse of the superior court's discretion in this case resulted in a miscarriage of justice. The California Constitution precludes reversal unless "the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802.) A " miscarriage of justice" occurs when it appears there is a reasonable probability that the appealing party would have realized a more favorable result in the absence of the error; probability in this context meaning merely a " 'reasonable chance, more than an abstract possibility.' " (Cassim, at p. 800.) Under Cassim, we are required to examine " 'each individual case to determine whether prejudice actually occurred in light of the entire record.' " (Id. at pp. 801-802.) Ogunsalu has the burden of showing that the error resulted in a miscarriage of justice. (County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105.) That is, Ogunsalu is required to demonstrate that he was prejudiced by the court's rejection of his late-filed papers.
"The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown." (§ 475.)
Ogunsalu does not meet this burden by simply asserting that his affidavit "showed [he] did not meet the statutory definition of a vexatious litigant." Ogunsalu did not lodge the excluded papers to permit us to assess the validity of this assertion, or the merit to his arguments in opposition to defendants' motion to declare him a vexatious litigant. Under these circumstances, the record provides no basis to reverse the vexatious litigant order.
B. Interpretation of the Vexatious Litigant Statutes
Ogunsalu makes several points about the operation and legislative intent of the vexatious litigant statutes, each of which is without merit. He first asserts under sections 391.1 and 391.2, the court must hold a hearing on the issue of the litigant's status. The record shows the trial court did just that.
He next asserts, citing section 391.7, subdivisions (c) and (d), that the statute requires a prior determination that he is a vexatious litigant, and such a prior determination is not sufficient under the statute if it happens a few minutes earlier in a different case. Specifically, Ogunsalu argues section 391.7 "contemplates that once a litigant has been declared vexatious, the status follows the litigant to future lawsuits for purposes of requiring prefiling orders.... If the legislative intent is for judges to issue prefiling orders after the vexatious litigant declaration had already been made in a prior proceeding, both declarations and prefiling orders by Hon. Judges [Prager and Denton] all happened within a 30 [minute] window." He maintains the legislature did not intend for defendants to avail themselves of section 391.7's prefiling order by "fili[ing] two hearings on the same day" and getting prefiling orders based on the other court's vexatious litigant determinations.
Section 391.7, subdivision (c) provides: "The clerk may not file any litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant first obtains an order from the presiding judge permitting the filing. If the clerk mistakenly files the litigation without the order, any party may file with the clerk and serve on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order as set forth in subdivision (a). The filing of the notice shall automatically stay the litigation. The litigation shall be automatically dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding judge permitting the filing of the litigation as set forth in subdivision (b). If the presiding judge issues an order permitting the filing, the stay of the litigation shall remain in effect, and the defendants need not plead, until 10 days after the defendants are served with a copy of the order." Subdivision (d) of that section provides: "For purposes of this section, 'litigation' includes any petition, application, or motion other than a discovery motion, in a proceeding under the Family Code or Probate Code, for any order."
Ogunsalu misunderstands the nature of the prefiling order of section 391.7, imposition of which does not require a vexatious litigant determination be made in a prior proceeding. Subdivision (a) of that section provides: "In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court." The prefiling order operates beyond the pending case and applies to future filings, i.e., new litigation. (McColm v. Westwood Park Assn., supra, 62 Cal.App.4th at p. 1216.) No language in the statute prevents entry of a prefiling order at the same time as the court determines a party to be a vexatious litigant.
Thus, contrary to Ogunsalu's assertion, once the court (Judge Prager) found him to meet the definition of a vexatious litigant, as it did here, it was permitted to enter a prefiling order against Ogunsalu under section 391.7 based on its own determination that Ogunsalu was a vexatious litigant. (See e.g., Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 218-219 [affirming order in which court declared plaintiff a vexatious litigant and, in the same order, required him to obtain leave of court before filing any new litigation under section 391.7]; In re R.H., supra, 170 Cal.App.4th at p. 693 [declaring party a vexatious litigant and imposing prefiling requirements on appeal].) Judge Prager's prefiling order only operates to bar Ogunsalu from thereafter filing a new action or proceeding if, as determined by the presiding justice, his success is considered improbable. (McColm v. Westwood Park Assn., supra, 62 Cal.App.4th at p. 1216, fn. 4.) The prefiling orders did not impact Ogunsalu's already-pending superior court actions. We therefore reject Ogunsalu's argument that since he had never before been declared vexatious, "it was impossible for respondents and their counsel to avail themselves of section 391.7...."
C. Order Requiring Ogunsalu to Furnish Security
Ogunsalu challenges the trial court's order that he furnish security by June 11, 2011, under section 391.3. That section provides: "If, after hearing the evidence upon the motion [brought under section 391.1 , 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." When the court has ordered a vexatious litigant to furnish security but it is not furnished as ordered, "the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished." (§ 391.4.)
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." A defendant brings a motion under this statute to obtain the remedy of an order to furnish security under section 391.3. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 634.)
In part, Ogunsalu argues the trial court "totally ignored" section 391.3's requirement that it find no reasonable probability he would prevail in the litigation against the defendants. He suggests that because he stated a viable invasion of privacy cause of action, the court erred in making this determination.
The flaw in Ogunsalu's argument is that we must infer findings to support the trial court's order if there is substantial evidence to support them, and Ogunsalu failed below in connection with the vexatious litigant motion to present opposition or evidence demonstrating a reasonable probability of prevailing on his claims. Nor does Ogunsalu mount a sufficiency of the evidence challenge to the evidence presented by defendants with regard to his invasion of privacy claim, as opposed to the vexatious litigant determination. Following the change in law declared in Moran v. Muraugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 784-786, we apply the substantial evidence standard of review as the standard to review the trial court's order. (See Golin v. Allenby, supra, 190 Cal.App.4th at p. 636.) Absent a meaningful sufficiency of the evidence challenge, we uphold the order requiring Ogunsalu to furnish security.
IV. Costs
Ogunsalu challenges the superior court's "grant of attorney fees." In fact, the record shows the superior court awarded defendants $4802 in "non-taxable costs." His sole argument is that this court on de novo review should overturn the award if we conclude his complaint states a valid and actionable invasion of privacy cause of action. Having reached such a conclusion and having reversed the judgment, we reverse the order awarding defendants' costs.
DISPOSITION
The judgment, including the award of costs, is reversed and the matter remanded to the superior court. The order declaring Ogunsalu a vexatious litigant, requiring that he post security, and imposing prefiling requirements, is affirmed, as is the order granting defendants' motion to strike. On remand, the superior court is directed to stay the action (Code Civ. Proc., § 391.6) and provide Ogunsalu a reasonable period of time within which to post the required security, and if no security is posted, dismiss the action (Code Civ. Proc., § 391.4). The parties shall bear their own costs on appeal.
WE CONCUR: McCONNELL, P.J., HUFFMAN, J.