Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. KC052996G, Steven D. Blades, Judge.
Tonsing Law Firm and Michael J. Tonsing for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Alicia M. B. Fowler, Senior Assistant Attorney General, Michael E. Whitaker and Brue Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Appellant Robert Plummer, Jr. appeals from the judgment entered in favor of respondents Department of Health Services (DHS) and Lavonne Coen after appellant’s action was dismissed because he failed to furnish security as ordered by the trial court pursuant to the vexatious litigant statute Code of Civil Procedure section 391.3. The trial court deemed appellant to be a vexatious litigant under section 391, subdivision (b)(1) on the ground that in the past seven years, appellant commenced or maintained five litigations that had been “finally determined adversely” to him. The court further found that appellant did not have a reasonable probability of prevailing in this litigation and thus ordered appellant to furnish security in the amount of $25,000 before proceeding with the action.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
Before this court, appellant asserts various errors including that the trial court: (1) incorrectly deemed him to be a vexatious litigant; (2) improperly concluded that he had no probability of success on the merits in the action; (3) lacked sufficient evidence to set the amount of the security; and (4) failed to give him sufficient notice that he was a vexatious litigant and that his action could be dismissed. As we explain more fully below, the court erred in deeming appellant a vexatious litigant under section 391, subdivision (b)(1). Accordingly, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Appellant’s Employment Relationship with DHS
Appellant had been an investigator for DHS. A citizen filed a complaint against appellant alleging that appellant had offered employment in return for sexual favors. The DHS began an investigation. In March 2004, the DHS brought a “Notice of Adverse Action” against appellant on the grounds of dishonesty, failure of good behavior either during or outside duty hours, and sexual harassment based on the citizen complaint. Appellant retired from DHS and DHS withdrew the adverse action against him.
B. Prior Litigation
Federal Discrimination Litigation.
On December 1, 2003, during the investigation of the complaint against him and three months prior to his retirement from DHS, appellant filed a complaint in federal court against DHS and DHS employees alleging discrimination and retaliation under federal law. (Plummer v. Pearlman (Pearlman I) (C.D.Cal. 2003) No. CV03-8734.) On September 13, 2005, the district court granted summary judgment in favor of the defendants in Pearlman I. Appellant appealed to the Ninth Circuit Court of Appeals. (Plummer v. Pearlman (Pearlman II) (9th Cir., Feb. 12, 2006) No. 05-56578.) On April 19, 2007, the Ninth Circuit affirmed the decision of the district court. Appellant sought review from the Supreme Court, Plummer v. Pearlman (Pearlman III) No. 07-365, but the Court denied certiorari.
When appellant initiated this action he was represented by an attorney; however, he substituted his attorney to represent himself prior to filing the appeal. Appellant was self-represented in the subsequent litigation.
State Discrimination Litigation.
On December 2, 2003, the day after he had filed his employment discrimination action in federal court, appellant filed identical claims under state law in state court. (Plummer v. Pearlman (Pearlman State Case) (Super. Ct. Los Angeles County, 2003, No. KC043300).) On April 30, 2004, the superior court granted a stay of the Pearlman State Case, pending the resolution of the federal action. On September 11, 2007, appellant dismissed the Pearlman State Case with prejudice pursuant to a settlement agreement by which appellant agreed to dismiss his state discrimination claims against the DHS and its employees in exchange for the defendants waiving all costs they would be entitled to recover in both the state and federal actions.
State Court Writ Proceedings—State Personnel Board.
After appellant retired from DHS, he sought reinstatement from the California State Personnel Board. On February 26, 2007, after appellant’s request was denied, he filed a petition for a Writ of Mandate, challenging the decision. (Plummer v. Shimomura (Shimomura) (Super. Ct. Los Angeles County, 2007, No. KS011454 O).) The court denied the writ on May 14, 2008.
State Court Writ Proceedings—Department of Consumer Affairs and DHS.
On February 5, 2008, appellant filed a petition for a Writ of Mandate in the superior court, seeking to compel the Department of Consumer Affairs to investigate alleged violations of privacy by DHS’ employees. (Plummer v. Lopez (Lopez) (Super. Ct. Los Angeles County, 2008, No. BS109800).) On June 13, 2008, the court sustained the demurrer without leave to amend and dismissed the action with prejudice. On July 28, 2008, appellant appealed. On December 17, 2009, Division Four of this district affirmed the judgment in an unpublished decision.
Under Evidence Code sections 452, subdivision (d) and 459, subdivision (a), we are authorized to take judicial notice of the records of any court of this state and may take judicial notice of any matter specified in Evidence Code section 452. We therefore, hereby take judicial notice of the opinion filed in this matter by Division Four of this Court.
C. Current Litigation
On May 20, 2008, appellant filed this complaint for damages and equitable relief against DHS and Coen alleging a claim for deceit. The action concerned communication between appellant and Coen regarding appellant’s former position as an investigator for DHS. Specifically, appellant alleged that he had contacted Coen, the Personnel Officer for DHS, in hopes of reapplying for his old position. Appellant alleges that Coen deceitfully gave him incorrect information about obtaining the position, effectively denying appellant the opportunity to be re-employed by the DHS.
On August 4, 2008, respondents filed a “Motion For Order Requiring Plaintiff to Furnish Security, ” arguing that appellant was a vexatious litigant under section 391, subdivision (b), and there was no reasonable probability that appellant would prevail in his action. Respondents relied on the federal discrimination litigation, the state discrimination litigation, the prior writ proceedings and this litigation to support their claim that appellant qualified as a vexatious litigant.
At the hearing on respondents’ motion, the trial court announced that it was inclined to deny the motion, expressing concern over whether an “appeal” qualified as a “litigation” under section 391, subdivision (b)(1). At the hearing, the court also discussed the amount of the security, asking appellant if he understood that if the motion was granted, he would be required to post security before continuing and that the case would be dismissed if he failed to provide the security. Appellant responded that it would be difficult for him to pay the security.
At the court’s request, both parties filed supplemental briefs on whether an appeal constituted a “litigation” under section 391, subdivision (b)(1). The trial court subsequently found that the appellant was a vexatious litigant within the meaning of section 391, subdivision (b)(1) and that there was not a reasonable probability that appellant would prevail in the litigation. The court counted the federal district court litigation action and subsequent appeals, Pearlman I, Pearlman II and Pearlman III, as “three separate litigations” under section 391, subdivision (b)(1). The court counted appellant’s two writ petitions, Shimomura and Lopez, as the fourth and fifth “litigations, ” bringing his total to five “litigations.” The trial court also determined that there was not a reasonable probability that appellant would prevail in the litigation because respondents were protected by statutory immunity. The court granted the motion and ordered appellant to pay security in the amount of $25,000 on or before October 17, 2008.
Appellant failed to furnish the required security, and the trial court dismissed the action with prejudice. Judgment was entered on November 25, 2008.
Appellant filed a timely appeal.
During the pendency of action in this court, respondents filed a motion to dismiss the appeal or in the alternative for an order requiring appellant to furnish security on appeal; and for a prefiling order pursuant to section 391.7. This court denied the motion.
DISCUSSION
Appellant argues that the lower court erred when it deemed him to be a vexatious litigant under section 391, subdivision (b)(1) because he had not maintained five litigations during the last seven years as required by the statute. He further complains the court improperly concluded that he had no probability of success on the merits in the action; and lacked sufficient evidence to set the amount of the security at $25,000. Finally, he argues that the court failed to give him sufficient notice that he was a vexatious litigant and that the court would dismiss his action. Because we conclude that there are not five qualifying litigations, we will reach only the first of those issues.
On appeal, appellant also asserts several arguments pertaining to section 391, subdivision (b)(2). We do not, however, address his contentions relating to subdivision (b)(2) because the lower court relied only on subdivision (b)(1) as the basis for its determination that appellant was a vexatious litigant.
A. The Vexatious Litigant Statute
Enacted in 1963, and originally modeled in part on former section 834 of the Corporations Code, the Code of Civil Procedure’s vexatious litigant statute was enacted to curb the abuse of the judiciary system from those plaintiffs who repeatedly litigated the same issues, wasting judicial resources and prejudicing other parties who were waiting to have claims heard. (Singh v. Lipworth (2005)132 Cal.App.4th 40, 45-46; In Re Natural Gas Antitrust Cases (2006) 137 Cal.App.4th 387, 394; see also Stafford v. Russell (1962) 201 Cal.App.2d 719, 722 [suggesting the Legislature enacted the legislation to facilitate the trial courts in punishing vexatious litigants].)
This statute allowed a corporation or any defendant in a shareholder’s derivative action to move for an order requiring the plaintiff to furnish security for defendant’s reasonable expenses on the ground that there was no reasonable probability that the prosecution would benefit the corporation or its security holders. (Singh v. Lipworth, supra, 132 Cal.App.4th at pp. 45-46.)
At any time before judgment is entered, a defendant may move the court for an order requiring the plaintiff to furnish security. (§ 391.1.) A court may grant the motion if the court determines the plaintiff is (1) a vexatious litigant and (2) that there is “no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant.” (§ 391.3.) In its assessing the motion, the court shall consider evidence, written or oral, by witness or affidavit, material to the motion. (§ 391.2.)
Section 391 identifies four situations in which a litigant may be deemed vexatious. At issue here is section 391, subdivision (b)(1), which defines a vexatious litigant as: “a person who does any of the following: (1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustly permitted to remain pending at least two years without having been brought to trial or hearing.” (§ 391, subd. (b)(1).)
The three other types of vexatious litigant not at issue here are: (b)(2): “After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determinations against the same defendant or defendants as to whom the litigation was finally determined;” (b)(3) “In any litigation while acting in propria persona, repeatedly filed unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay;” and (b)(4) “Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.” (§ 391, subd. (b).)
Courts have broadly construed the vexatious litigant definition. (See Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 225 [previous litigation commenced outside the seven year window was within the purview of the statute as plaintiff maintained the case within the seven year time period when he substituted counsel]; Camerado Ins. Agency v. Superior Court (1993) 12 Cal.App.4th 838, 845 [application of the vexatious litigant statute to plaintiff who was represented by counsel but who had commenced five litigations in propria persona in previous seven years]; see also Say & Say v. Ebershoff (1993) 20 Cal.App.4th 1759, 1766[corporation was vexatious litigant where plaintiff attorney, who had been declared vexatious litigant in past and who dominated and controlled the corporation, named corporation as co-plaintiff merely to avoid vexatious litigant law].)
A court exercises its discretion in determining whether a plaintiff is a vexatious litigant. (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1498-1499.) We will uphold the court’s ruling if it is supported by substantial evidence. (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1169 (Fink).) This court will also presume the order finding the plaintiff a vexatious litigant is correct and infer such findings as are necessary to support it. (Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1582 [disapproved on other grounds in Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780].) We review questions of statutory interpretation de novo. (Forrest v. State of California Dept. of Corporations (2007) 150 Cal.App.4th 183, 194.)
Appellant contends that he is not a vexatious litigant as defined in section 391, subdivision (b)(1) because he did not commence or maintain the minimum of five finally adversely determined litigations. We agree. Appellant has not maintained five “finally adversely determined litigations” within the meaning of the vexatious litigant statute. In our analysis we assume, without deciding, that the calculation includes both appeal and writ petitions; we need not reach this issue because, even under this assumption, there are not five such litigations.
B. The Federal Litigation
The lower court counted as three “litigations the federal discrimination action (Pearlman I), the appeal to the Ninth Circuit (Pearlman II) in that case, and the subsequent petition for certiorari to the Supreme Court (Pearlman III). We can affirm the decision of the trial court only if we include within the count the petition for certiorari to the United States Supreme Court in the federal action. However, under California law, the summary denial of a writ petition where the reviewing court has not taken jurisdiction over the case or provided a full review is not a qualifying determination for purposes of this statute. (Fink, supra, 180 Cal.App.4th at p. 1172.)
The critical issue in this analysis is whether the reviewing court has exercised jurisdiction over the case; if it has not, the determination is neither final nor on the merits. Reviewing our Supreme Court’s authority on the use of writ denials, the Fink court concluded: “the Supreme Court stated: “‘When the court denies a writ petition without issuing an alternative writ, it does not take jurisdiction over the case; it does not give the legal issue full plenary review.’ [Citations.]” A summary denial of such a writ petition therefore cannot constitute a final determination of litigation within the meaning of section 391, subdivision (b)(1).” Established federal law concerning the effect of the denial of a petition for certiorari is the same.
The denial of a certiorari petition, as a matter of governing federal law, is not a determination on the merits after the Court has taken jurisdiction over the matter; “‘denial of a writ of certiorari imports no expression of opinion upon the merits of the case.’ (United States v. Carver 260 U.S. 482, 490 (1923) (Holmes, J.). Accord, Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 366, n. 1 (1973); Brown v. Allen 344 U.S. 443, 489-497 (1953). The ‘variety of considerations [that] underlie denials of the writ, ’ (Maryland v. Baltimore Radio Show 338 U.S. 912, 917 (1950) (opinion of Frankfurter, J.), counsels against according denials of certiorari any precedential value. Concomitantly, opinions accompanying the denial of certiorari cannot have the same effect as decisions on the merits.” (Teague v. Lane (1989) 489 U.S. 288, 296.) Thus, we cannot “count” the denial of certiorari here.
At the Supreme Court, the denial of certiorari is the exercise of the Court’s discretion s to whether to assert jurisdiction over a case: “In order that the Court may be enabled to discharge its indispensable duties, Congress has placed the control of the Court’s business, in effect, within the Court’s discretion. During the last three terms the Court disposed of 260, 217, 224 cases, respectively, on their merits. For the same three terms the Court denied, respectively, 1, 260, 1, 105, 1, 189 petitions calling for discretionary review. If the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The time that would be required is prohibitive, apart from the fact as already indicated that different reasons not infrequently move different members of the Court in concluding that a particular case at a particular time makes review undesirable. It becomes relevant here to note that failure to record a dissent from a denial of a petition for writ of certiorari in nowise implies that only the member of the Court who notes his dissent thought the petition should be granted. [¶] Inasmuch, therefore, as all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.” (Maryland v. Baltimore Radio Show, supra, 338 U.S. at pp. 918-919.)
C. The State Writ Petitions
With respect to the writ petitions, we must examine a related, yet different question in the vexatious litigant analysis: whether the appellant’s writ litigations were “finally determined adversely” to appellant. Appellant contends the writ proceedings were not final, nor adversely determined against him. We disagree.
First as to the issue of finality, appellant asserts these litigations were not “finally” determined because these actions were not all dismissed with prejudice, citing Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813 for support. Appellant, however, confuses the concept of “finally determined” as used within the vexatious litigant statutes with the term “final judgment” as used in the doctrine of res judicata. But the two are not related, and the latter is not a consideration in the determination of a vexatious litigant under section 391, subdivision (b)(1). Indeed, to determine the meaning of “finally determined” as used under the vexatious litigant statutes, we look to First Western Development Co. v. Superior Court (1989) 212 Cal.App.3d 860. In First Western, the plaintiff had sought review from the California Supreme Court after denial of his writ petition. (Id., at p. 864.) The court held that judgment was final for all purposes when “all avenues for direct review have been exhausted.” (Ibid.)
Similarly in the case of writ proceedings, where a writ petition is the only authorized mode of judicial review, the denial of a writ constitutes “finality” in the litigation. (See Fink, supra, 180 Cal.App.4th at p. 1172 [distinguishing between writ petitions challenging pretrial superior court rulings that could later be reviewed on appeal from the judgment ultimately entered in the action from situations in which a writ petition was the only authorized mode of review; the summary denial of the former type of writ petition does not necessarily constitute “finality” because, absent the issuance of an alternative writ, the court does not take jurisdiction over the case to review its merits].) Thus, where the exclusive means of obtaining judicial review is a petition for a writ of mandate in the superior court, the court’s ruling on the petition qualifies as a final determination under section 391 once the time for appeal of that ruling has expired.
The Shimomura writ proceeding became “final” and “adverse” to appellant when the superior court denied appellant’s petition for a writ of mandate and the time to appeal the denial expired. However, we cannot include the Lopez writ proceeding among the five “finally determined” litigations. Although the superior court dismissed appellant’s petition for a writ of mandate in Lopez with prejudice on June 13, 2008, appellant filed an appeal of that decision in late July 2008 beforerespondents sought to have appellant deemed a vexatious litigant, and that appeal was still pending when the court deemed appellant a vexatious litigant. Because the appeal in Lopez was pending, the Lopez litigation is not a “final” litigation for the purposes of the vexatious litigant determination.
Thus, even if we were to count as a final adversely determined litigation the Pearlman State case, which the trial court did not include, there remain only four cases.
DISPOSITION
The judgment is reversed and the court ordered, on remand, to reinstate the litigation. Appellant is entitled to his costs on appeal.
I concur: JACKSON, J.
WOODS, Acting P. J., Concurring:
I concur in the reversal of the judgment.
I write separately, however, because I cannot endorse the view expressed, albeit implicitly, in the majority opinion that the United States Supreme Court’s denial of a petition for a writ of certiorari can never be counted as a litigation “finally determined adversely” under Code of Civil Procedure section 391, subdivision (b)(1).
Preliminarily, I note my concern does center not on the issue of “finality.” Because a petition for certiorari filed in the Supreme Court is the only authorized mode of judicial review in the high court, the denial of the petition constitutes “finality” in the litigation as that term is used in the vexatious litigant statutory scheme. (See First Western Development Co. v. Superior Court (1989) 212 Cal.App.3d 860, 864 [holding a judgment final for all purposes when “all avenues for direct review have been exhausted”]; Fink v. Shemtov, supra, 180 Cal.App.4th at p. 1172.)
Rather the concern that causes me departure from the majority’s view of the petition for certiorari is the majority’s interpretation of the term “adversely” determined litigation. As far as I am aware, no other California court has ever held that a denial of a petition for a writ of certiorari cannot be counted as a litigation “finally determined adversely” in the context of the vexatious litigant statutes. The majority opinion, relying on federal case law, observes that a denial of a petition for certiorari is not a determination on the “merits”: “‘“denial of a writ of certiorari imports no expression of the opinion upon the merits of the case.”’” (Maj. opn. at p. 9.) Thereafter, the majority, without citation to any supporting legal authority, implicitly concludes that because denial of a petition for certiorari is not a decision on the merits, it cannot be considered an “adverse” determination under section 391, subdivision (b)(1). To be sure, a denial of a petition for a writ of certiorari is not a determination on the “merits”; however, what that conclusion implies about the meaning of “adversely” determined under the vexatious litigant statutes, is less certain. The fact that a court has not determined the merits in a case, in my opinion does not necessarily resolve the separate issue of whether the litigation was adversely determined against a party.
In my view, the definition of “adversely determined” as that term is used in the context of the vexatious litigant statutes, is broader than the construction given it by the majority of this court. If a party loses on the merits, then the litigation might be characterized as “adversely” determined against that person. However, the converse does not automatically follow. A finding that litigation has been “adversely” determined against a party in this context does not necessarily mean the party lost on the merits. In fact, it does not necessarily signify that any court even considered the underlying merits of the litigation. Illustrative is case law holding that a lawsuit that had been “voluntarily dismissed” qualifies as an adversely determined litigation in this context. In Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 777 appellant appealed from a judgment of dismissal after he failed to post security pursuant to the vexatious litigant statute. Appellant argued that the trial court erred in its determination of five litigations because the court relied on a case that he had voluntarily dismissed without prejudice. The plaintiff argued that the voluntarily dismissed case did not qualify as an action adverse to him. (Id., at pp. 778-779.) The court of appeal disagreed, concluding that a case dismissed without prejudice was included in the vexatious litigant determination because “[a]n action which is ultimately dismissed by the plaintiff, with or without prejudice, is nevertheless a burden on the target of the litigation and the judicial system, albeit less of a burden than if the matter had proceeded to trial. A party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the actions through to completion. The difference is one of degree, not kind.” (Id., at pp. 779-780.) The appellate court also observed that a voluntary dismissal is only prima facie proof the litigation was determined adversely to the plaintiff, and that the plaintiff could rebut this showing by contrary proof. (Id. at p. 780, fn. 3.) Accordingly, under Tokerud, a voluntary dismissal is prima facie proof that the litigation has been adversely determined against plaintiff, even though no court actually considered the merits of the case. (Id. at p. 780.)
Given this treatment of voluntary dismissals, the determination of whether the prior litigation qualifies as “adversely” determined should not depend solely on whether there was a determination of the underlying merits in the prior litigation. While a determination on the merits (or lack thereof) may be one factor in this analysis, in my view, the “adversely determined” assessment must also include an examination of the totality of the circumstances of the prior litigation. It should assess whether the plaintiff in the prior litigation accomplished the objective in the litigation or obtained any of the relief sought. And, as in the case of voluntary dismissals, the plaintiff should have an opportunity to rebut the defendant’s prima facie showing that the litigation was adversely determined.
A more robust definition of “adversely determined, ” is consistent with the expansive interpretation generally given by the courts in construing the vexatious litigant statutes. A broad definition that does not automatically exclude denials of petitions for certiorari also serves the underlying purpose of the statute – to curb the abuse of the judicial system by those plaintiffs that repeatedly litigated the same issues, wasting judicial resources, the opponent’s resources and prejudicing other parties who were waiting to have claims heard.
In the context of a petition for certiorari, one can envision plausible situations where the denial of the petition should be considered an adverse determination and other situations where the denial should not be considered adverse. For example, where the petition becomes moot because the parties settle the underlying controversy while the petition is pending, perhaps the subsequent denial (and/or dismissal) of petition for certiorari should not be considered an adversely determined litigation under the vexatious litigant statutes. In this example, the party (opposing the vexatious litigant determination) may be able to rebut the prima facie showing that the litigation was adversely determined by demonstrating that the party received a favorable settlement. In contrast is the situation in a highly contested matter where the both petitioner and respondents (and perhaps even amici curiae) filed extensive briefing in connection with the petition. In such a case, perhaps the denial of the petition should be considered an adverse determination under the vexatious litigant statutes, even though the Supreme Court did not rule on the underlying merits. Indeed, a significant amount of resources are often committed to the preparation of the briefs filed in response to a petition for certiorari and to the Court’s review of the petition, the response and any documents filed by those seeking status as amicus curiae. When such resources are expended, and the Supreme Court nonetheless denies the petition, the adverse resolution (to the petitioner) in the circuit court stands. In view of those circumstances, it is certainly difficult to imagine how the denial of the petition for certiorari could be construed as anything other than litigation “adversely” determined to the petitioner.
It is also difficult for me to ignore the judicial (and party) resources that have been wasted in multiple litigations filed by this appellant. Appellant has two additional litigations that were finally determined adversely (i.e., Lopez writ proceeding and appeal) to him that could not be included in the “count” on this appeal because those litigations did not become “final” until after respondents filed the order seeking to declare appellant a vexatious litigant.
For these reasons, I cannot endorse the new rule suggested by the majority that the denial of a petition for a writ of certiorari could never be considered an adverse determination under section 391, subdivision (b)(1). Instead, denials of petitions for certiorari should be examined case-by-case to determine whether under the totality of the circumstances they should qualify as adversely determined in the context of the vexatious litigant statutes.
Notwithstanding the foregoing, I nonetheless join in the reversal of the judgment in this appeal because there is insufficient evidence in the record for this court to conclude one way or another whether the denial of certiorari by the Supreme Court (Pearlman III) was “adverse” to appellant. Thus, even under the construction of “adversely” determined that I propose, the lower court’s judgment cannot stand.