Harold W. Dickens III, for Plaintiff and Appellant; Diem Nguyen, in pro per. Law Offices of Stanley Shar, Stanley Shar; The Law Offices of Philip Treacy and Philip Treacy, for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00683908) OPINION Appeal from an order of the Superior Court of Orange County, William D. Claster, Judge. Affirmed. Harold W. Dickens III, for Plaintiff and Appellant; Diem Nguyen, in pro per. Law Offices of Stanley Shar, Stanley Shar; The Law Offices of Philip Treacy and Philip Treacy, for Defendants and Respondents.
* * *
Plaintiff, Diem T. Nguyen, appeals from an order of dismissal entered after she failed to comply with an order requiring her to post $102,000 in security following the court's determination she is a vexatious litigant. (Code Civ. Proc., § 391 et seq.) Plaintiff contends there was insufficient evidence she had no reasonable probability of prevailing in the litigation, and therefore the trial court abused its discretion in ordering her to furnish security as a condition of continuing to pursue her case. We affirm.
All statutory references are to the Code of Civil Procedure.
Plaintiff enrolled her three-year-old son in taekwondo classes at Tom Vo's Taekwondo Academy, Inc. (the Academy), a martial arts school, in January 2012. She signed a document entitled AAC Martial Arts Customer Agreement, which consists of a promissory note, customer assignment and electronic funds transfer authorization. On behalf of her son, she also signed a three-page student registration form / talent release /liability waiver (Registration). According to plaintiff, at the time her son was speech delayed.
As the parties and trial court did, we will refer generally to the documents as the contract or contracts.
Plaintiff took her son to the Academy's 4:00 p.m. class almost daily. Within one week, the owner of the Academy, defendant, Tom Vo, Jr. (Vo, Jr.), told plaintiff her son was too attached to her and would not participate in class with her present, so he requested plaintiff leave the class and come back at its conclusion. Within two months, defendant, Ricardo Cruz, an instructor at the Academy, informed plaintiff the Academy was adding an earlier class at 3:00 p.m. for students like her son who were unable to perform certain activities. Plaintiff began taking her son to the 3:00 p.m. class and observed during the majority of sessions, defendant John A. was present with his three children, two of whom are autistic, and occasionally John's wife. According to plaintiff, within a few months her son came home with increasingly disturbing and aggressive attitudes and behaviors, similar to those displayed by John and his children, including wanting a kiss and hug from plaintiff while plaintiff was disciplining her son in speech and writing, spinning and knocking things with his taekwondo belt, refusing to help fold clothes and put his toys in baskets, inserting the word "the" when speaking, such as "the rice" or "the noodles" instead of "eat rice" or "eat noodles," preferring chocolate milk over regular milk, and refusing to drink water or orange juice.
Plaintiff seems to use the term "disciplining" as synonymous with "teaching" or, at times "learning."
By May 2012, when plaintiff observed the martial arts disciplines, she saw John and his children in class with Cruz. According to plaintiff, there was no methodology in place and Cruz had to focus on one student while allowing others, including John, to horse play and misbehave. Two of John's children often chased and hit plaintiff's son with their belts. Plaintiff considered the behavior of one of John's children bullying and abuse. On one occasion, another of John's children hit plaintiff's son on his chest with a punching pad.
In approximately June 2012, plaintiff joined the class as a student, signing her own registration form. Within a few weeks, John and his children stopped attending after being promoted to yellow belts. Plaintiff's son began to learn how to roll, punch, kick, and fall backwards and was not running around the room, but the class was later cancelled because there were not enough students. Plaintiff and her son moved to the Academy's Warner location and joined a class where plaintiff's son was one of the youngest students. Cruz was the only instructor, though from time to time Vo, Jr. assisted.
Here, plaintiff alleges she observed more disturbing behavior. Vo, Jr. told plaintiff she was to be her son's babysitter while he and other instructors worked with the rest of the students. When plaintiff's son was able to participate in the class activities without plaintiff's assistance, the instructors found ways to suppress and prevent him, and often plaintiff's son had to sit out due to his behavior. Cruz and another instructor allegedly found ways to provoke plaintiff's son to act out. In September 2012, Vo, Jr. informed plaintiff that parents were complaining about her son's behavior, claiming he disrupted the class and prevented their children from learning martial arts. In November 2012, after plaintiff sent a complaint to the California Unified Taekwondo Association, the Academy cancelled plaintiff's contracts.
Plaintiff Initiates This Action
Plaintiff in propria persona initiated this action against defendants, the Academy, Vo, Jr., Cruz, John, and Tom Vo, Sr. (Vo, Sr.) in March 2013 by filing a verified complaint. Plaintiff's son is not a plaintiff. The case has a lengthy procedural history that includes multiple discovery motions, attacks on the pleadings, challenges to the trial judge, ex parte applications, and other law and motion. Relative to the issues now on appeal, we summarize the proceedings as follows.
Plaintiff originally filed the case in Los Angeles County Superior Court. Defendants motion to change venue was granted, and the case was transferred to Orange County Superior Court in October 2013.
In response to the complaint, defendants filed a verified answer, demurrer, and motion to strike punitive damages. In January 2014, the court sustained with leave to amend defendants' demurrer to all causes of action in the complaint, including breach of contract, breach of fiduciary duty, negligence, negligent misrepresentation, breach of the implied covenant of good faith and fair dealing, and intentional infliction of emotional distress. In January 2014, plaintiff filed a verified first amended complaint (FAC) alleging nine causes of action.
On its own motion the court augments the record on appeal to include the trial court's minute order dated January 14, 2014; "Plaintiff's Notice of Objection and Objection to Defendants' Motion to declare Plaintiff, Diem T. Nguyen a vexatious litigant," filed on December 22, 2014; and "Plaintiff's Notice of Objection and Objection to Defendants' Evidence in Support of their Motion to declare Plaintiff a Vexatious Litigant," filed January 22, 2015. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
All defendants again demurred to the FAC, and the court sustained the demurrer in part and overruled it in part. On the breach of contract cause of action, the court overruled the demurer as to the Academy but sustained the demurrer as to Vo, Sr. and Vo, Jr. in their individual capacities since those individual defendants were not parties to the contracts and plaintiff failed to allege facts as to alter ego liability. Leave to amend was granted as to Vo, Jr. only for the purpose of alleging alter ego. The demurrer was sustained without leave to amend as to the second cause of action for harassment, the third cause of action invasion of privacy — intrusion of solitude, the eighth cause of action for breach of the implied covenant of good faith and fair dealing, and the ninth cause of action for intentional infliction of emotional distress. The demurrer was sustained with leave to amend as to the fourth cause of action for invasion of privacy — false light, fifth cause of action for defamation, sixth cause of action for negligence, and seventh cause of action for negligent misrepresentation. Finally, defendants filed a motion to strike plaintiff's claim for attorney fees, punitive damages, and a resulting trust. The motion to strike was granted.
Plaintiff filed her current operative pleading, a 46-page verified second amended complaint (SAC), in July 2014 alleging causes of action for breach of contract, invasion of privacy — false light, defamation of character, negligence, and negligent misrepresentation. In her SAC, plaintiff newly alleges during the early stages of discovery she learned of the Academy's "ultra left wing conservative personal beliefs and practices." The Academy is alleged to hold beliefs and practices of what a perfect family entails, which must consist of a male influence and presence as the nucleus of a family. Plaintiff alleges her and her son's private and privileged alternative lifestyle does not agree with the Academy's beliefs and practices, and as a result, the Academy was prejudiced against plaintiff and her son, and harassed, aggravated, and agitated them, creating a hostile environment.
The first cause of action for breach of contract against the Academy and Vo, Jr. alleges defendants breached the contracts by, inter alia, failing to create and/or place plaintiff's son in proper sessions appropriate for his needs, failing to create and/or place her son in a safe, friendly, and protective environment, refusing to allow her son to participate in Academy activities, failing to "discipline [her son] martial arts and goals as agreed" on the contract, failing to create and/or place plaintiff in proper sessions appropriate for a parent and child session, and failing to create and/or place plaintiff in a safe, friendly, and protective environment. Plaintiff includes alter ego allegations alleging the Academy is the alter ego of its sole owner, Vo, Jr. Plaintiff alleges both she and her son have suffered damages, and plaintiff seeks contractual, punitive, special, and exemplary damages on the breach of contract cause of action.
The second cause of action for invasion of privacy — false light against the Academy and Vo, Jr. alleges they made the following allegedly defamatory statements regarding plaintiff and thus her son: "Plaintiff is a single mother raising [her son]. [Plaintiff's son] does not have a father figure in his life. [Plaintiff's son] does not have any male influences. [Plaintiff's son] does not have any relationship with any father figure." According to plaintiff, these defamatory statements placed plaintiff and her son in "false lights." Plaintiff again seeks punitive, special, and exemplary damages on the invasion of privacy — false light cause of action.
The third cause of action for defamation of character against the Academy and Vo, Jr. relies on the same allegedly defamatory statements and seeks punitive, special, and exemplary damages.
The fourth cause of action for negligence against all defendants alleges defendants exposed plaintiff's son to disruptive and disturbing behaviors at the Academy, which constituted a form of negligence. Plaintiff also alleges defendants' placement of her son in the earlier class constituted negligence, because he was without proper supervision and care and Cruz had an inability to control John's children and had no time to teach them or plaintiff's son anything. Plaintiff alleges defendants' negligence included, inter alia, conditioning her son to display disruptive behaviors during martial arts' discipline by exposing him to highly functioning autistic children who were not able to compose themselves accordingly during martial arts' discipline, conditioning her son to learn that hitting others with his belts was acceptable behavior, and subjecting her son to constant physical abuse from John's children, causing him to be in a fetal position to protect himself from harm. With regard to John, plaintiff alleges he knew or should have known his disturbing and disruptive behaviors during martial arts' discipline would encourage and teach her son to display similar disruptive and disturbing behaviors. Plaintiff alleges John displayed misbehavior provoking his children to follow suit and encouraging her son to behave similarly. Plaintiff alleges defendants had a "duty of not adversely interfering and interrupting [p]laintiff's private zones, security, comforts, peace of mind, and creating havoc to [p]laintiff's lifestyles and that with [her son]." Plaintiff seeks contractual, punitive, special, and exemplary damages as a result of the alleged negligence.
The fifth cause of action for negligent misrepresentation against the Academy, Vo, Sr., Vo, Jr., and Cruz, alleges the Academy and Vo, Jr. "conveyed to [plaintiff] that they would properly provide said services and commitments as per [c]ontract." She seems to allege the contracts formed the basis of representations by referencing goals related to martial arts' discipline, fitness, self-defense, confidence, focus, strength, character, and new friends. Plaintiff alleges defendants posted giant posters in the Academy with bold words meant to carry their "message of disciplinary" such as anti-bullying and self-defense. She alleges her son came home displaying disruptive and disturbing behaviors, change in diets, and speaking broken Spanish, which disrupted the harmonious daily life functions and activities between plaintiff and her son. Plaintiff seeks contractual, punitive, special, and exemplary damages on the negligent misrepresentation cause of action.
Defendants' Attempts to Have Plaintiff Declared a Vexatious Litigant
Defendants' first attempt to have plaintiff declared a vexatious litigant commenced around the same time plaintiff filed her SAC in July 2014. Defendants did not file a responsive pleading to the SAC. Instead, they filed a motion to declare plaintiff a vexatious litigant with the supporting declarations of Vo, Jr., Cruz, Vo, Sr., and John. Each of the declarants stated they did not understand why they were being sued, and each of them declared they had never hurt plaintiff's son or placed him in harm's way. Each of the declarants also stated they had no knowledge whether plaintiff is a single mother or whether her son has a father figure, and, never made statements to any person regarding that subject. They added further information in their individual declarations as follows.
Vo, Jr., is an owner, director, and officer of the Academy. He stated he and his staff tried their best to train plaintiff's son and plaintiff in taekwondo. He said plaintiff's son came to the Academy as an uncontrollable child who failed to follow basic instructions, would not sit still, and on occasion would growl at people. Despite this, they continued to teach plaintiff and her son taekwondo until he discovered a letter written by plaintiff in which she accused him and his father of conspiring with mortgage lenders and banks who were defendants in her other lawsuits.
The letter is an e-mail that appears to be addressed to individuals associated with the California United Taekwondo Association.
Vo, Sr. declared he is not a part owner, director, officer or employee of the Academy, nor was he when plaintiff and her son enrolled. He said the Academy's instructors always do their best to teach the students taekwondo.
Cruz declared that as an instructor he did his best to teach taekwondo to plaintiff and her son. He said it was a difficult task, because plaintiff's son was unreceptive to his teachings. Plaintiff's son did not listen, often could not pay attention, and failed to follow instructions. According to Cruz, Plaintiff's son displayed uncontrollable behavior and was difficult to work with. He growled at people and disrupted the order of the class, would not sit still, and insisted on running around the room during exercises.
John declared he is a former customer of the Academy whose children and wife attended the Academy. He explained two of his children are highly functioning autistics who are nonviolent. He had never seen either of them harm plaintiff's son. The three of them enjoyed playing together. John declared he never taught plaintiff's son broken Spanish, never told him to refuse drinking orange juice, and never taught him to prefer chocolate milk over regular milk. He never taught plaintiff's son to hit people with a taekwondo belt or told him to run around in class and disobey the instructor. Finally, John declared he had been harassed by plaintiff who insisted on deposing his two autistic children who are unable to answer her questions and attempting to depose his wife who allegedly knows nothing about the case. He said plaintiff has thrown empty accusations at his family causing great emotional stress, anxiety and angst over their enrollment in the Academy, which was intended to be a fun activity that he and the children could share. He concluded he should not be involved in the lawsuit, because it has nothing to do with his family.
The motion was denied without prejudice in September 2014 for defendants' failure to present admissible evidence establishing five or more actions filed by plaintiff that were now final and resolved against her. (§ 391, subd. (b)(1)) The court further denied the motion under section 391, subdivision (b)(3), because the Academy's demurrer to the FAC had been overruled as to the first cause of action for breach of contract, and based on the pleadings and evidence thus far presented, the court could not conclude plaintiff had no reasonable probability of prevailing on this claim. According to the court, on the surface, plaintiff's contention she did not receive the services contracted for, including supervision and training of her son in taekwondo, supported the contract claim. Further, the court found at least some of plaintiff's discovery motions had merit and/or were informally resolved and discovery schedules set by way of a temporary judge discovery meeting. The court did not discuss the probability of plaintiff prevailing on any of her other claims.
Defendants filed documents concerning plaintiffs' prior litigation with no authenticating declaration or request for judicial notice.
In October 2014, defendants filed a second motion to declare plaintiff a vexatious litigant. Defendants requested security and a pre-filing order prohibiting plaintiff from filing new litigation without leave of court. In support of their motion, defendants submitted identical copies of the previously executed declarations of Vo, Jr., Cruz, Vo, Sr., and John. Defendants also filed a request for judicial notice of 14 documents relating to plaintiff's previous litigation.
Plaintiff filed a 20-page objection, a 10-page declaration styled more as a points and authorities, and 12 exhibits consisting mostly of previously filed declarations and e-mails concerning discovery. Plaintiff requested monetary sanctions. She also filed a request for judicial notice of several fictitious business name statements and California Secretary of State records concerning the relationships between defendants.
In addition to advancing arguments, plaintiff's declaration outlines her observations of John's children's conduct toward her son during class, roughly mirroring the allegations in the SAC. Plaintiff declares on one occasion she observed one of John's sons slap her son unprovoked prompting Cruz to scream at John's son to stop slapping plaintiff's son "ANYMORE" (emphasis in original). Plaintiff declares she has a video clip of her son to rebut the allegation he came to the Academy as an uncontrollable child. Plaintiff did not supply the video. She alleges the Academy, Vo, Jr., and/or Cruz boasted on various mediums including a social media page, that defendants traveled to public schools throughout Orange County lecturing and teaching children the art of self-defense and on the subjects of bullying and anti-bullying.
In her declaration, plaintiff stated she and her son had already stopped attending the Academy when she sent the letter to the California United Taekwondo Association. She objected to the security bond requirement, because defendants had not provided any evidence of legal fees and costs. She also described that her son attended the demurrer hearing with her in June 2014, and he had to sit still, did sit still, and did not say a word for three hours while in court. Plaintiff's declaration references the medical records of two of John's sons that John had produced. She declared during an informal conference at the courthouse cafeteria, Vo, Jr. admitted he had security surveillance cameras at the Academy.
Finally, plaintiff declares she was never given certain contract options that were offered to other students, specifically an option to pay for one year in advance at a generous discount. She declares she is unaware the Academy is a day care center, because its self-explanatory title as a taekwondo academy led her to understand taekwondo is a form of martial arts, not day care. She declares her son was not displaying the conduct and behavior as alleged prior to being exposed to John and his family. And plaintiff again states she did not discuss the alleged defamatory statements with any defendants, students or parents of the Academy or any of its affiliates.
In January 2015, the court issued its ruling, granting the motion in part and continuing the motion in part. The court granted defendants' request for judicial notice and denied plaintiff's request for judicial notice. The court found plaintiff conceded three civil matters had been resolved adversely to her within the past seven years, then found an additional five civil matters had also been resolved against plaintiff within the past seven years for a total of eight litigations. On that basis, the court declared plaintiff a vexatious litigant under section 391, subdivision (b)(1) (in immediately preceding seven years, plaintiff has commenced, prosecuted, or maintained in propria persona at least five litigations finally determined adversely to plaintiff). The court rejected defendants' argument plaintiff is a vexatious litigant under section 391, subdivisions (b)(2) [evidence of relitigation of matters previously tried to final resolution by a pro per plaintiff] or (b)(3) (repeated filing of unmeritorious motions, pleadings or other papers, conducting unnecessary discovery, or engaging in other tactics that are frivolous or solely intended to cause unnecessary delay).
With regard to the posting of security under section 391.3, subdivision (a), the court found there was no reasonable probability plaintiff would prevail in the litigation for the reasons set forth in defendants' moving papers and in the court's June 2014 ruling on defendants' demurrer to the FAC. The court observed none of the causes of action in the FAC other than breach of contract appeared to set forth a viable cause of action, and not only did the SAC appear not to correct these earlier flaws, but the evidence submitted by the parties supported the conclusion plaintiff is not likely to succeed on the merits. The court concluded the breach of contract claim, while setting forth a valid cause of action, did not have a reasonable probability of succeeding, because the contract did not address any of the specifics of the taekwondo classes or how the instructors would discipline or relate to the students. Further, the essence of the alleged breach — that plaintiff's son picked up disturbing and uncharacteristic behaviors as a result of the way defendants operated the taekwondo classes — demonstrates plaintiff's version of the contract includes the nonexistent requirement that defendants ensure her son's attitude not be adversely affected by the classes.
The minute order acknowledged that at oral argument, plaintiff pointed out that without additional evidence, the court was reaching an opposite conclusion from its ruling on the first motion to declare her a vexatious litigant. The court stated its present view on the issue was the result of a further and more detailed consideration of the pleadings and evidence and an enhanced review, because the court now had before it evidence establishing plaintiff as a vexatious litigant. The court explained given the lack of evidence in support of the previous motion, there was no need for the court to have previously made a determination about the probability of plaintiff prevailing. Now, however, additional evidence supplied by plaintiff changed the court's conclusion. The court noted it has the authority to reconsider its previous rulings prior to entry of judgment, citing LeFrancois v. Goel (2005) 35 Cal.4th 1094, 1108.
The record does not include a reporter's transcript.
With regard to the amount of security to be posted, the court continued the hearing, because defendants presented no evidence in support of their request. The court granted defendants' request plaintiff be required to obtain a prefiling order prior to filing any new litigation. (§ 391.7, subd. (a).) Finally, the court denied plaintiff's request to have defendants' default entered for failure to file a responsive pleading within 10 days following the denial of a motion to declare plaintiff a vexatious litigant. (§ 391.6.) The court found the filing of defendants' renewed motion to have plaintiff declared a vexatious litigant caused another stay until the renewed motion was ruled upon.
Defendants' attorneys submitted their declarations concerning the security to be posted. Attorneys Philip Treacy and Stanley Shar stated they expect to incur at least $101,810 in legal fees in defending plaintiff's action, but Treacy estimated in his experience, the matter might require more in the range of $125,000. In response, plaintiff filed an objection with a declaration and exhibits. Plaintiff disputed the attorney declarations on grounds the fees are not stated with specificity and that defendants falsely manufactured allegations solely for purposes of the security bond motion.
In February 2015, the court ordered plaintiff to furnish security in the sum of $102,000 within 30 days or the case would be dismissed. (§§ 391.3, subd. (a), 391.4.) Plaintiff failed to furnish the security as ordered, and in March 2015, the court dismissed the entire action without prejudice. The order of dismissal is appealable. (In re Marriage of Rifkin and Carty (2015) 234 Cal.App.4th 1339, 1347.)
Section 581d requires that all dismissals ordered by the court be in the form of a written order signed by the court. The minute order dismissing plaintiff's complaint was not signed by the court. "However, in the interest of justice and to prevent unnecessary delay, a reviewing court may deem the order appealed from as incorporating a judgment of dismissal and treat the notice of appeal as applying to that dismissal. [Citation.] We will do so here." (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 988, fn. 2.) --------
"The purpose of the vexatious litigant statutes '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.'" (In re Kinney (2011) 201 Cal.App.4th 951, 957-958.) A vexatious litigant is one who does any one of four acts. (§ 391, subd. (b)(1)-(4).) The court found plaintiff qualified under section 391, subdivision (b)(1), which defines a vexatious litigant as a person who, "[i]n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing." The term "'[l]itigation'" is defined as "any civil action or proceeding, commenced, maintained or pending in any state or federal court," and it includes an appeal or writ proceeding. (Id., subd. (a); Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1173-1174.) Plaintiff does not challenge the trial court's finding she is a vexatious litigant.
Once a court determines a person is a vexatious litigant, two protective remedies become available. First, "a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall 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 or she will prevail in the litigation against the moving defendant." (§ 391.1.) "At the hearing upon such motion the court shall consider such evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion. Except for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3, no determination made by the court in determining or ruling upon the motion shall be or be deemed to be a determination of any issue in the litigation or of the merits thereof." (§ 391.2.) "[I]f, 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." (§ 391.3, subd. (a).) "Security" is defined as "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." (§ 391, subd. (c).) If the security is not furnished as ordered, "the litigation shall be dismissed." (§ 391.4) When the defendant brings a motion for security, the litigation is stayed until the motion for security has been heard and determined and until the security, if any, has been posted. (§ 391.6.)
Second, "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 justice or presiding judge of the court where the litigation is proposed to be filed." (§ 391.7, subd. (a).)
In this case, defendants sought, and the court granted, both remedies. On appeal, plaintiff does not challenge the prefiling order prohibiting her from filing new litigation. Rather, plaintiff contends defendants presented insufficient evidence she had no reasonable probability of prevailing in this litigation and the trial court abused its discretion in requiring her to post security of $102,000 and in dismissing the case when she failed to do so within 30 days. We conclude there was no error.
There is no Reasonable Probability Plaintiff Will Prevail in the Litigation
On a motion for an order requiring a vexatious litigant to post security, the moving party must make a showing there is no reasonable likelihood plaintiff will prevail in the action. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 642.) This showing is ordinarily made by the weight of the evidence, but a lack of merit may also be shown by demonstrating plaintiff cannot prevail as a matter of law. (Ibid.) The burden is on the moving defendant. (Id. at p. 640.)
Plaintiff relies on Muller v. Tanner (1969) 2 Cal.App.3d 445 (Muller) in arguing sufficiency of the evidence. In Muller, the trial court dismissed plaintiff's case after his failure to post security. (Id. at p. 449.) The appellate court reversed (id. at p. 466), because the showing made by defendant was inadequate to support the order. (Id. at p. 450.) The only evidence submitted by defendant to establish there was no reasonable probability that plaintiff would prevail in the litigation was the complaint itself and the "conclusion, expressed in the statutory language, in defendant's affidavit." (Id. at p. 464.) The court noted the burden of establishing the statutory condition is on the party moving for security, and where the evidence is conflicting, the implied finding of the trial court, if based on sufficient evidence, is binding on the appellate court. (Id. at pp. 464-465.) In Muller, "there was no evidence to sustain one of the two props upon which the order on which it was predicated must stand." (Id. at p. 465.)
Without addressing the content of defendants' declarations or offering reasons why they are insufficient, plaintiff tepidly asserts the "barren" declarations contain the only evidence establishing there is no probability plaintiff will prevail in the litigation. The declarations of Vo, Jr., Vo, Sr., Cruz, and John are far from barren; they address the very heart of plaintiff's grievance, i.e., that these defendants somehow acted to influence plaintiff's son to exhibit objectionable behavior after attending taekwondo class and that they defamed plaintiff. In their declarations, each defendant specifically denied plaintiff's allegations as set forth in her various verified complaints and declarations. Vo, Jr. and Cruz were consistent in describing plaintiff's son as an uncontrollable child who failed to follow basic instructions and who could not listen or pay attention. The evidence also shows plaintiff's son growled at people and disrupted class. Though the trial court had contrary evidence from plaintiff, the court credited defendants' evidence, and we will not reweigh the evidence on appeal. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.) Unlike in Muller, here defendants' evidence addressed the merits of plaintiff's action and was not a conclusion expressed in the statutory language. Hence, Muller is factually distinguishable and does not assist plaintiff. We further note that defendants' evidence is not entirely inconsistent with plaintiff's evidence. Plaintiff concedes her son was speech delayed when he began attending taekwondo classes. She also concedes Vo, Jr. told her in September 2012 that parents were complaining about her son's behavior in class, claiming he disrupted class and prevented their children from learning martial arts.
We also conclude plaintiff cannot prevail as a matter of law on any of the causes of action alleged in the operative SAC. To establish breach of contract, plaintiff must show the existence of a contract, plaintiff's performance or excuse for non-performance, defendant's breach, and resulting damage to plaintiff. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.) The court found plaintiff had stated a claim for breach of contract in the FAC but plaintiff had no probability of prevailing on the merits. Here, the contracts do not address the specifics of how the taekwondo classes will be conducted, how students will be taught, and/or how the instructors will discipline students. We agree with the court that plaintiff's version of the contracts includes a nonexistent requirement that defendants ensure her son's attitude not be adversely affected by the classes. In short, plaintiff cannot identify any provision that defendants have breached. Further, even if defendants had breached the contracts, plaintiff has not identified any actionable damage she has suffered.
The second cause of action for invasion of privacy — false light and the third cause of action for defamation of character are based upon the alleged statements that plaintiff is a single mother, and her son does not have a father figure or male influences or a relationship with any father figure. The trial court found plaintiff's allegations in the FAC insufficient to state causes of action. The SAC fares no better. As to false light, in order to be actionable, the false light in which plaintiff is placed must be highly offensive to a reasonable person. (Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 238.) We do not believe characterizing plaintiff as a single mother and her son as a child lacking a father figure, is highly offensive to a reasonable person, and we will not sanction plaintiff's attempt to benefit from an outdated gender stereotype that elevates one form of parenting over another. Many parents succeed in a single parent role, and many children thrive under a single parent's care.
Defamation is similar to invasion of privacy — false light. Defamation is an invasion of the interest in reputation. (Burrill v. Nair (2013) 217 Cal.App.4th 357, 382, disapproved on other grounds in Baral v. Schnitt (2016) 1 Cal.5th 376, 396, fn. 11.) The tort requires the intentional publication of a false statement of fact that has a natural tendency to injure plaintiff's reputation or that causes special damage. (Burill, at p. 382.) Here, plaintiff alleges defendants secretly orally disseminated the statements to the general public including their students, knowing full well the statements did not come from plaintiff, and they intended to disseminate a message that plaintiff's family is defective as there is no male figure as a nucleus of the family, thus rendering her son a defective child. We question how a secret transmission to the general public might occur. Nevertheless, glaringly absent from plaintiff's pleadings is any contention the statements of fact are false, a required element for defamation. Even if the statements of fact are false, however, we conclude the statements do not have a natural tendency to injure plaintiff's reputation. Plaintiff cannot succeed on this claim.
Plaintiff's fourth cause of action for negligence can be summarized as plaintiff's dissatisfaction with her son's behavior following his exposure to taekwondo classes at the Academy. Her son's newly developed behavior included such things as changes in diet, speaking broken Spanish, objecting to helping with chores, and wanting a kiss during speech and writing lessons. The court sustained demurrers to plaintiff's negligence causes of action in the complaint and FAC, and the SAC is still deficient. To establish a claim for negligence, plaintiff must prove a legal duty to use due care, breach of the legal duty, and that the breach is the proximate or legal cause of resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) It appears plaintiff's alleged damage is her distress over her son's behavior, but damages for emotional distress are available only in limited circumstances. A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person only if plaintiff is closely related to the injured victim, is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim, and as a result suffers serious emotional distress — a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. (Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668.) Here, plaintiff has not demonstrated her distress is serious. Instead, any distress appears to be an abnormal response to the ever-changing and sometimes acting out behavior typical of a young child learning social skills and testing boundaries.
The fifth cause of action for negligent misrepresentation is equally fruitless. The trial court found plaintiff's allegations of negligent misrepresentation in the complaint and in the FAC insufficient, and the SAC adds nothing to revive the claim. Negligent misrepresentation is a form of deceit consisting of a misrepresentation of a past or existing material fact, without reasonable grounds for believing it to be true, with intent to induce another's reliance on the fact misrepresented, ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and damages. (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962.) The core of plaintiff's claim is grounded in contract and the goals referenced in plaintiff's and her son's registration forms related to martial arts discipline, fitness, self-defense, confidence, focus, strength, character, and new friends. Plaintiff also complains about defendants' posting giant posters at the Academy with bold words meant to carry their "message of disciplinary" such as anti-bullying and self-defense.
However, plaintiff does not identify a specific past or existing material fact that was misrepresented to her, nor who made the representation. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [particularity in pleading requirement necessitates pleading facts showing how, when, where, to whom, and by what means representations were tendered].) At best, the identified goals might constitute a mere prediction of possible future results, which are expressions of opinion and thus not actionable. (Richard P. v. Vista Del Mar Child Care Service (1980) 106 Cal.App.3d 860, 866.) Plaintiff cannot prevail on this claim. The Trial Court Did Not Abuse its Discretion in Requiring $102,000 in Security
Plaintiff challenges the court's order fixing the amount of security at $102,000, but the argument is not well developed. Plaintiff cites no authority, positing only that it is beyond peculiar defendants anticipate over $100,000 of future litigation costs, including discovery, when they are certain now plaintiff has no probability of prevailing in the litigation. Having failed to support the point with reasoned argument and citation to authority, we treat the point as waived. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) Even so, on this record, we cannot conclude defendants' attorney fees and cost estimates are not justified by the evidence or that defending plaintiff's case will be inexpensive. We note the record on appeal contains 3,692 pages as designated, many of them unnecessary, and even with all those pages, the record is incomplete and omits documents critical to the court's opinion, necessitating a sua sponte court order to augment. Much of the designated record consists of documents irrelevant to this appeal, such as motions and ex parte applications with multiple exhibits filed by plaintiff. There is no basis to conclude plaintiff will stop filing mountains of paper, all necessitating the expenditure of attorney fees by defendants.
We find no error in the court's order requiring plaintiff to furnish security in the sum of $102,000 if she wishes to proceed with this meritless case. "[I]t is no injustice to the vexatious litigant to have him give security for what at the time of hearing appears to be necessary to assure payment of the reasonable expenses contemplated by the statute." (Muller, supra, 2 Cal.App.3d at p. 466.)
The judgment is affirmed. Defendants shall recover their costs on appeal.
IKOLA, J. WE CONCUR: FYBEL, ACTING P. J. THOMPSON, J.