Wolfe v. San Francisco Food Bank

Filed 4/27/07 Wolfe v. San Francisco Food Bank CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Burton H. Wolfe filed three separate notices of appeal^[1]from his first lawsuit (Wolfe I) against the San Francisco Food Bank (Food Bank) and Americas Second Harvest (Second Harvest) after the lower court ruled that he was a vexatious litigant and then dismissed his complaint after he failed to post security pursuant to Code of Civil Procedure section 391 et seq.^[2] While Wolfe I was pending and automatically stayed under section 391.1, Wolfe filed a second lawsuit against these same parties (Wolfe II). Wolfe filed two separate notices of appeal,^[3]from the courts orders dismissing his complaint against Food Bank and Second Harvest in Wolfe II. On this courts own motion, we consolidate the appeals from Wolfe I with the appeals of Wolfe II. In his appeals, Wolfe challenges the lower courts application of collateral estoppel to the finding that he was a vexatious litigant and makes various constitutional and other challenges to the application of section 391.1 to him, an indigent litigant in propria persona. We affirm the judgments in Wolfe I and Wolfe II.

BACKGROUND

Wolfe is a resident of the Eastern Park Apartments. Food Bank, a charitable organization, distributes food through a federally funded program and, once a month for approximately three hours, Food Bank distributes food at the Eastern Park Apartments pursuant to a written agreement between the apartment building and Food Bank. Second Harvest is a non-profit, nationwide charitable hunger-relief organization that supports more than 200 independent local food banks and food-rescue organizations nationwide, including Food Bank. The record contains no evidence of any affiliations between Second Harvest and Food Bank with respect to the food distribution at Eastern Park Apartments.

On December 19, 2005, Wolfe filed in propria persona a complaint against Food Bank and Second Harvest (collectively, food charities). The complaint contained 11 causes of action for, inter alia, declaratory relief, public and private nuisance, violations of Business and Professions Code section 17200 et seq., and negligence. Wolfe sought unspecified monetary damages, punitive damages, and an order permanently enjoining Food Bank to cease and desist from their [sic] unethical, immoral, fraudulent, and illegal business practices . . . .

In his complaint, Wolfe alleged that Second Harvest was the parent organization of Food Bank and funded it. Wolfe claimed that he was bringing this action on behalf of himself and the general public pursuant to section 17200 et seq. of the Business and Professions Code. He asserted that, at Food Banks monthly distribution of food, many of the people receiving food do not need the food boxes, and oftentimes sell them for cash or drugs. Also, much of the food in the boxes is discarded . . . ; and thus a significant amount of the food goes to waste. . . . Though it is true that some of the recipients of the food boxes are poor as defined under standards established by the U.S. Department of Commerce, plaintiff has yet to see any of the recipients who can be factually or accurately described as hungry in the sense intended by the defendants.

Wolfe claimed that Food Bank began distributing the food boxes to outsiders, including the homeless and street people. As a result, the residents of Eastern Park Apartments who are in the food program have been forced to stand in long lines with the outsiders. He asserted in his complaint that [s]tanding in place for long periods of time is painful, unhealthful, and even somewhat dangerous for elderly persons who are afflicted with heart disease, arthritis, and other medical conditions which make it essential for them to avoid such a situation. He alleged that the change in the manner in which the food operation is scheduled has created problems and has caused the elderly residents of Eastern Park Apartments to come in contact with filthy, diseased outsiders . . . . Additionally, Wolfe alleged that the distribution program resulted in a mess, which staff members at Eastern Park Apartments had to clean.

In January 2006, Food Bank and Health Harvest separately brought motions pursuant to section 391.1 to have Wolfe declared a vexatious litigant and to require him to post security as a condition to proceeding with his action. The hearing for the motions was set for March 15, 2006. In their notices of the hearing, food charities separately advised Wolfe that the litigation was stayed pending resolution of the motions.

In support of its motion to declare Wolfe a vexatious litigant, Food Bank asserted that Wolfe had filed more than 80 lawsuits in the last 20 years.^[4] The most recent order declaring Wolfe to be a vexatious litigant was in September 2003, in Wolfe v. Vietnamese Community Center of San Francisco (VietnameseCommunity Center; No. 03-417193). In VietnameseCommunity Center, the court cited eight cases in the past seven years litigated by Wolfe in propria persona, which had resulted in outcomes adverse to Wolfe.^[5] Food Bank also cited ten cases not cited in VietnameseCommunity Center, which it maintained were dismissed by the court.^[6] According to Food Bank, since 2002, Wolfe had voluntarily dismissed eight different cases.

In response, Wolfe filed four motions to strike, 29 separate requests for judicial notice, and various supporting appendices and declarations. He also sought to have the case transferred to the complex litigation department and requested a stay in the law and motion department pending a decision on his application for complex-case designation.

On March 13, 2006, Wolfe filed his complaint in Wolfe II against Food Bank and Second Harvest for compensatory and punitive damages and for injunctive relief. Wolfes complaint alleged causes of action for private and public nuisance.Wolfe claimed that Food Banks food distribution program prevented him from obtaining a cab because Food Banks van was parked in the passenger zone in front of Eastern Park Apartments. He again alleged that the food distribution endangered the safety and health of the residents of Eastern Park Apartments. He also complained that he was forced to use the stairs because the wait for the elevator was longer than normal when Food Bank distributed the food.^[7]

On March 29, Food Bank filed a notice of related case and asserted that Wolfe II was related to Wolfe I. Food Bank and Second Harvest also moved pursuant to section 391.1 to have Wolfe declared a vexatious litigant in Wolfe II and to require him to post security prior to proceeding with Wolfe II. On May 15, 2006, the trial court issued a tentative ruling indicating that it intended to accept food charities motions for security as submitted on the papers.

On May 30, 2006, Judge James L. Warren held a hearing in Wolfe I. The court granted the motions by Food Bank and Second Harvest for an order declaring Wolfe to be a vexatious litigant and requiring him to post security. The court denied Wolfes various motions. The court found that Wolfes motions were an improper attempt to attack collaterally the prior order by Judge Ronald E. Quidachay in VietnameseCommunity Center. The court ordered Wolfe to furnish security in the amount of $100,000 as a condition of further litigation against Food Bank and a security in the amount of $60,000 as a condition of further litigation against Second Harvest. The court entered a prefiling order prohibiting Wolfe from filing in propria persona any new litigation in the courts of the State of California without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.

Judge Warren found two independent grounds for declaring Wolfe to be a vexatious litigant. The first basis was that Judge Quidachay had already ruled in his order filed on September 9, 2003, in Vietnamese Community Center, that Wolfe is a vexatious litigant as defined by section 391.Judge Warren explained the applicability of Judge Quidachays order to the issue before him: The basis of that ruling was that, in the prior seven years, Mr. Wolfe had commenced, prosecuted, or maintained, in propria persona, at least five litigations that had been adversely determined against him. Each of the cases underlying the courts order in Wolfe v. Vietnamese Community Center, were commenced, prosecuted, or maintained within the seven years immediately preceding the date that [food charities filed their motions] in the immediate matter. Mr. Wolfe is, therefore, collaterally estopped from re-litigating Judge Quidachays finding that such cases were adversely determined under [section] 391.1, and Judge Quidachays order is conclusive on Mr. Wolfes status as a vexatious litigant.^[8]

Judge Warren set forth a second basis for ruling Wolfe was a vexatious litigant. He stated that Wolfe, while acting in propria persona, has repeatedly filed unmeritorious motions, pleadings, or other papers, conducted unnecessary discovery, or engaged in other tactics that were frivolous or solely intended to cause unnecessary delay in the immediate case.^[9]

Finally, the court found that food charities presented sufficient evidence to demonstrate that there was not a reasonable probability that Wolfe would prevail in this litigation against them.

On that same day, May 30, 2006, Judge Warren granted food charities motions pursuant to section 391.1 in Wolfe II. The grounds for these rulings were essentially the same as those set forth in Wolfe I.

On June 14, and 16, 2006, the trial court dismissed, respectively, the lawsuits against Food Bank and Second Harvest in Wolfe I, for Wolfes failure to post security. Wolfe filed a notice of appeal from each dismissal and also a notice of appeal from the order granting Food Banks motion declaring him a vexatious litigant. On October 10, 2006, we granted Wolfes motion to consolidate the appeals from Wolfe I (A114618, A114775 & A114806).

On June 14, 2006, the court dismissed the complaint against Food Bank in Wolfe II, for Wolfes failure to furnish the security ordered. Two days later, on June 16, the court dismissed the complaint in Wolfe II against Second Harvest, for Wolfes failure to furnish security. Wolfe filed a notice of appeal from each of these dismissal orders (A114814 & A114916), and we granted Wolfes motion to consolidate these two appeals. This court on its own motion consolidates the appeals from Wolfe I with the appeals from Wolfe II.

DISCUSSION

I. The Vexatious Litigant Statutes and Standard of Review

The trial court dismissed Wolfe I and Wolfe II because Wolfe failed to furnish the security ordered after the court had granted the section 391.1 motions by Food Bank and Second Harvest. Wolfe on appeal challenges these orders.

We must uphold the lower courts determination that a plaintiff is a vexatious litigant if it is supported by substantial evidence. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.) Questions of statutory interpretation, however, we review de novo. (Ibid.)

When a finding of fact is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. (Scottv.Common Council (1996) 44 Cal.App.4th 684, 689, quoting Green Trees Enterprises, Inc.v.Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784-785.)

Section 391.1 sets forth that, upon a motion by a defendant, the court may order a plaintiff to furnish security if the defendant establishes that the plaintiff is a vexatious litigant and there is not a reasonable probability that the plaintiff will prevail in the litigation against the moving defendant . . . . If, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix. ( 391.3.) The failure to furnish security will result in a dismissal of the lawsuit as to the defendant for whose benefit the vexatious litigant order was furnished. ( 391.4.) The court may enter a prefiling order prohibiting 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. ( 391.7.)

Accordingly, we determine whether substantial evidence supported the lower courts orders requiring Wolfe to furnish security prior to proceeding with his lawsuits against Food Bank and Second Harvest and whether substantial evidence supported the courts prefiling order against Wolfe under section 391.7.

II. Wolfe I

A. Wolfes Special Motion to Strike

Wolfe filed special motions to strike pursuant to section 425.16, known as the anti-SLAPP (strategic lawsuit against public participation) statute, and he claims the lower court should have granted this motion. He argues that food charities section 391.1 motions were essentially anti-SLAPP lawsuits seeking to prevent him, a plaintiff in propria persona, from protecting the public interest. He claims that the section 391 motions sought to punish his exercise of his right to petition and to protect the publics interest.

This argument merits little discussion. A section 391.1 motion, contrary to Wolfes assertion, is not a lawsuit and therefore the anti-SLAPP statute is inapplicable. Moreover, courts deny special motions to strike under the anti-SLAPP statute if the party bringing the lawsuit has demonstrated a probability of prevailing on the claim. ( 425.16, subd. (b)(1).) As discussed extensively below, food charities provided evidence in support of their motions and demonstrated a strong probability of prevailing on their section 391.1 motions.

Further, the trial court properly did not consider Wolfes special motions to strike as it violated the stay imposed by section 391.6. Section 391.6 provides: When a motion pursuant to Section 391.1 is filed prior to trial the litigation is stayed, and the moving defendant need not plead, until 10 days after the motion shall have been denied, or if granted, until 10 days after the required security has been furnished and the moving defendant given written notice thereof. Under the plain language of section 391.6, filing a section 391.1 vexatious litigant motion stayed or halted the litigation in Wolfe I.

The stay triggered by the filing of a section 391.1 motion remains in effect until the vexatious litigant motion is denied or, if it is granted, until security is furnished. (See, e.g., McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1215 [While the [section 391.1] motion is pending, if it is filed before trial, the litigation is stayed]; Muller v. Tanner (1969) 2 Cal.App.3d 438, 443 [When the defendant filed his motion under the vexatious litigant statute . . . it served to stay all proceedings in that action].) In the present case, food charities filed their motions for security in January 2006, and the court heard the motions in May 2006. Wolfe filed his anti-SLAPP motions to strike on March 1, 2006, which was within the period of the statutory stay. Thus, Wolfe could not file a motion while the matter was stayed; thus, the lower court properly did not consider his motion.

B. Vexatious Litigant

The lower court found that Wolfe is a vexatious litigant under section 391, subdivision (b)(1) and (b)(3). Under this statute, a [v]exatious litigant means 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) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing. [] . . . [] (3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay. . . . ( 391, subd. (b)(1) & (3).)

1. Declaring Wolfe a Vexatious Litigant Under Section 391, Subdivision (b)(1)

The trial court found that the court had previously declared Wolfe a vexatious litigant under section 391, subdivision (b)(1), and the facts underlying that order applied equally to Wolfe I. Previously, on September 9, 2003, Judge Quidachay ruled in Vietnamese Community Center that in the seven years prior to the Vietnamese Community Center action, Wolfe had commenced, prosecuted, or maintained, in propria persona, at least five litigations that had been determined adversely to him. Judge Quidachay set forth the following eight proceedings initiated by Wolfe that had been determined against him: Wolfe v. City Attorney of San Francisco (No. 414810), dismissed without prejudice by Wolfe on November 27, 2002; Wolfe v. Gallagher (No. 409265), dismissed on October 29, 2002; Wolfe v. Northern California Presbyterian Homes (No. 309470), motion denied on August 27, 2002; Wolfe v. Golden Eagle Insurance Company (No. 406988), dismissed on June 18, 2002; Ignacio v. Stewart, (N.D. Cal., No. 99-CV-04829-SBA), dismissed on March 29, 2002; Agha v. Allstate Insurance Co. (N.D. Cal., No. 99-CV-03049-SBA), dismissed on March 29, 2002;^[10]Wolfe v. Taxi Service (No. 939802), motion denied on November 18, 1999 (appeal No. A061230); and Wolfe v. Sedan Operators Cooperative, Inc. (No. 938920), motion denied on September 23, 1999 (appeal No. A058228).

In May 2006, Judge Warren held the hearing in Wolfe I on food charities motions pursuant to section 391.1. The oldest case relied upon by Judge Quidachay in Vietnamese Community Center of San Francisco when ruling Wolfe was a vexatious litigant was decided in September 1999, which was within seven years of the hearing in Wolfe I. Accordingly, each of the cases underlying the courts order in VietnameseCommunity Centerwas commenced, prosecuted, or maintained within the seven years immediately preceding the date food charities filed their section 391.1 motions in Wolfe I. Thus, after Judge Warren made his independent factual finding that the eight cases were within the seven-year time period, he applied the doctrine of collateral estoppel to the question of whether these eight cases were determined against Wolfe. Since Judge Quidachay has already found that these cases were decided adversely to Wolfe, Judge Warren ruled that the doctrine of collateral estoppel barred Wolfe from relitigating Judge Quidachays finding that he was a vexatious litigant.

As already noted, Judge Warren independently determined that the eight cases cited by Judge Quidachay satisfied the time requirements of section 391.1. Wolfe does not dispute this finding and Judge Quidachays order in Vietnamese Community Center, which sets forth the dates the cases were dismissed, provides substantial evidence of this finding.

The only remaining question is whether collateral estoppel barred Wolfes relitigating the issue of whether these cases were determined adversely to him. Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fn. omitted.) Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.] The party asserting collateral estoppel bears the burden of establishing these requirements. (Ibid.)

In the present case, the question decidedwhether eight prior lawsuits were decided against Wolfewas identical. Food charities maintained that section 391, subdivision (b)(1) applied to Wolfe by relying on the identical cases already relied upon and considered by Judge Quidachay when finding Wolfe was a vexatious litigant under section 391, subdivision (b)(1). The parties litigated the issue of Wolfes being a vexatious litigant in VietnameseCommunity Centerand this issue was necessarily determined. Moreover, this order declaring Wolfe to be a vexatious litigant was a final judgment on the merits of the case. Finally, Wolfe, the party to be estopped, was a party to the prior adjudication. Accordingly, we conclude that the record supported the application of collateral estoppel and barred Wolfe from relitigating the issue of whether these eight cases cited in VietnameseCommunity Centerwere decided adversely to him.

Indeed, the application of the doctrine of collateral estoppel to a vexatious litigant case has already been decided in Stolz v. Bank of America (1993) 15 Cal.App.4th 217 (Stolz). In Stolz, the plaintiff had been declared a vexatious litigant under the meaning of section 391, subdivision (b)(1), in a prior case on the basis of six cases. (Stolz, supra, at p. 222.) The defendant in Stolz relied on these same six cases underlying the prior court order declaring him a vexatious litigant. (Ibid.) The Stolz court held that to the extent the issues are the samewhether a particular litigation commenced, prosecuted or maintained in propria persona was finally determined adversely to Stolz or unjustifiably permitted to remain pending at least two yearsStolz cannot challenge anew such determinations. (Id. at p. 223.) Thus, under Stolz, Wolfe is precluded from relitigating the question whether the eight cases relied upon in Vietnamese Community Center were decided adversely to him.
Although Stolz clearly applies to this case, Wolfe raises a number of objections to the application of collateral estoppel to the present case. Wolfe contends that the judgment in VietnameseCommunity Center should have no effect on this current litigation because the prior litigation was incorrectly decided and was based on fraud. He concedes that he never appealed the ruling in Vietnamese Community Center,^[11]but he claims that he could not do so and had a lesser incentive to litigate the issue (Stolz, supra, 15 Cal.App.4th at p. 222) because he was challenging section 391 in federal court. He claims that he had little incentive to appeal in the state court because that would have resulted in the dismissal of his federal case under the Rooker/Feldman doctrine (D.C. Court of Appeals v. Feldman (1983) 460 U.S. 462; Rooker v. Fidelity Trust Co. (1923) 263 U.S. 413).

The Rooker/Feldmandoctrine is a rule of abstention that bars what in essence would be federal review of a state judgment based on the losing partys claim that the state judgment violates the losers federal rights. (Doe & Associates Law Offices v. Napolitano (9th Cir. 2001) 252 F.3d 1026, 1030.) We need not address the possible effect of this doctrine on Wolfes lawsuit in the federal court because Wolfe chose not to appeal the state court decision. He had the choice of selecting the forum to challenge the application of section 391.

Additionally, Wolfe cannot claim that he did not have an incentive to litigate the question of his being a vexatious litigant and the determination that he would have to post security to proceed with the litigation. When courts refuse to impose the doctrine of collateral estoppel because of the partys lesser incentive to litigate, this refers to the partys minimal incentive to litigate in a prior lawsuit because the issue decided in the prior lawsuit was nonessential. (McMillin Development, Inc. v. Home Buyers Warranty (1998) 68 Cal.App.4th 896, 906-907.) In the present case, the determination that Wolfe was a vexatious litigant was not a collateral or nonessential issue.

As to Wolfes claim that Judge Quidachay was defrauded and that none of the eight litigations cited in the VietnameseCommunity Centerorder was decided against him, Wolfe cannot now attempt to argue that Judge Quidachays prior order was incorrectly decided.^[12] Further, this contention is based on his argument that many of the dismissals in the cases listed in the Vietnamese Community Center order were part of negotiated settlement agreements and that these determinations were not adverse to him under Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775. Wolfes reliance on Tokerud is misplaced. The Tokerud court makes clear that the plaintiffs voluntary dismissal of an action can be counted for purposes of the vexatious litigant statute. (Id. at p. 779.) A dismissal creates a rebuttable presumption that the matter was decided adversely to the plaintiff for purposes of section 391. (Tokerud, supra, at pp. 779-780.) The court explained: An 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 p. 779.)

Wolfe also argues that Judge Quidachays ruling can have no effect because it is contrary to two other rulings by other judges in law and motion. There is nothing in this record, however, that supports this claim. Although Wolfe provides citations to the record to support this argument, his citations are not to any prior court order or judgment. We therefore have no evidence in the record establishing that previous court orders either addressed or contradicted the factual issues underlying the determination in VietnameseCommunity Center that Wolfe was a vexatious litigant. There is, however, evidence to the contrary in the record. On May 3, 2006, Wolfe filed a motion to set aside or vacate the vexatious litigant order in Vietnamese Community Center and, in connection with this motion, he also filed a motion challenging Judge Quidachay pursuant to section 170.1, subdivision (a), and section 170.3, subdivision (c)(1). The order denying Wolfes challenge to remove Judge Quidachay stated that Judge Quidachays own prior rulings in this case are consistent with various rulings made by other judges in this case.

Wolfe also claims he was never provided a fair hearing regarding the determination that he was a vexatious litigant. ( 391.2; Bravo v. Ismaj, supra, 99 Cal.App.4th at pp. 225-226 [no need to establish prejudice if denied fair hearing, but fair hearing does not necessarily require an oral hearing].) There is nothing in this record to support his claim that he was denied a hearing in VietnameseCommunity Centerand we therefore reject this argument. In fact, Judge Quidachays order granting the motion to require Wolfe to furnish security in Vietnamese Community Center expressly states the following: This matter came before the court on a noticed motion . . . , plaintiff BURTON WOLFE appearing in propria persona and defendant ASIAN LAW CAUCUS appearing by counsel. Upon reviewing and considering the pleadings, arguments, declarations, and exhibits on file and the arguments presented at the hearing . . . . (Italics added.)

After the section 391 hearing in Vietnamese Community Center, Wolfe filed a peremptory challenge of Judge Quidachay pursuant to section 170.6. He now claims that Judge Quidachays order can have no effect on Wolfe I because his peremptory challenge of Judge Quidachay was improperly denied. Wolfe did not file a petition for writ of mandate from the denial of his peremptory challenge. The time for this court to review the denial of that challenge has long since expired.

Further, according to Wolfe, he filed his peremptory challenge to Judge Quidachay after the section 391 hearing. Section 170.6, subdivision (a)(2) requires that where the judge scheduled to hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least 5 days before that date. Wolfes challenge, according to his own argument, was after the section 391 hearing and therefore untimely under section 170.6, subdivision (a)(2). A peremptory challenge is a creation of statute, lacking the constitutional underpinnings of a challenge for cause, and is not available in every conceivable judicial action or proceeding. [Citation.] The exercise of the peremptory challenge is strictly curtailed by the terms of the statute and by judicial interpretation. The statute imposes on the litigant mandatory limitations with respect to the time of making the challenge. (Garcia v. Superior Court (1984) 156 Cal.App.3d 670, 684.) A trial court lacks authority to waive the untimeliness of a section 170.6 affidavit. (Briggs v. Superior Court (2001) 87 Cal.App.4th 312, 318.)

Wolfe also urges us not to apply collateral estoppel because he claims there was no final judgment on the merits in Vietnamese Community Center (see, e.g., Stolz, supra, 15 Cal.App.4th at p. 222), and collateral estoppel only applies when the prior proceeding resulted in a final judgment. Wolfe contends that a judgment of dismissal pursuant to section 391 can never be final, because the case is not decided on its merits but is dismissed because the plaintiff failed to furnish security. We agree that the underlying merits in VietnameseCommunity Centerwere never reached because Wolfe failed to furnish the required security. However, there was a final judgment on the limited question of Wolfes meeting the requirements of section 391 and, as already settled in Stolz, such a determination is final for the purposes of collateral estoppel.

Wolfe also argues that the order in Vietnamese Community Center was not final because no judgment of the superior court is final until it is finally corroborated by the states highest tribunal, and he cites Dimidowich v. Bell & Howell (9th Cir. 1986) 803 F.2d 1473, 1482. This argument has no merit. The federal court in Dimidowich merely pointed out that, when the California Supreme Court has not addressed the interpretation of a state issue, the federal court will attempt to determine how the high court will decide the issue by looking for guidance from intermediate courts and courts of other jurisdictions. (Ibid.) In the present case, the judgment of the superior court was not appealed and was therefore final.

In another misguided attempt to challenge the application of collateral estoppel to the question of his being a vexatious litigant in Wolfe I, Wolfe maintains that collateral estoppel cannot apply when the party seeking to apply it was not a party to the prior litigation. Neither Food Bank nor Second Harvest was a party or in privity to parties in VietnameseCommunity Center. The parties seeking to apply collateral estoppel do not need to have been parties to the prior litigation. Rather, the party to be estopped, who in the present case is Wolfe, must have been a party to the prior adjudication. (See, e.g., Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 604.)

Finally, Wolfe challenges the lower courts ruling by arguing that Judge Warren was prejudiced against him, which he argues tainted the entire proceedings. He complains that Judge Warren dismissed his efforts as evinced by his ruling that Wolfe, while acting in propria persona, . . . repeatedly filed unmeritorious motions, pleadings, or other papers, conducted unnecessary discovery, or engaged in other tactics that were frivolous or solely intended to cause unnecessary delay in the immediate case. Wolfe asserts that Judge Warrens ruling was incorrect as he was prevented from conducting any discovery because of the automatic stay and his other efforts labeled unmeritorious were necessary to fight back against the law firms. Wolfe also objects to Judge Warrens rejection of some of his evidence and Judge Warrens failure to question opposing counsel further about the costs of litigation in support of their motions for security when one of the attorneys stated that the legal representation for food charities was being done on a pro bono basis.

Wolfe may disagree with Judge Warrens rulings, but [e]rroneous rulings against a litigant, even when numerous and continuous, do not establish a charge of bias and prejudice. (Dietrich v. Litton Industries, Inc. (1970) 12 Cal.App.3d 704, 719.) Wolfe has failed to establish that Judge Warren was prejudiced or biased against him.

2. Declaring Wolfe a Vexatious Litigant Under Section 391, Subdivision (b)(3)

Although we need not go any further because we conclude the trial court properly found Wolfe to be a vexatious litigant under section 391, subdivision (b)(1), we conclude that an independent basis for affirming the lower courts order is the finding that Wolfe was a vexatious litigant under section 391, subdivision (b)(3). Other than to criticize Judge Warrens characterization of the numerous documents filed by him as being frivolous and unmeritorious, Wolfe provides no argument challenging this finding.

A review of the record establishes ample support for the courts determination that Wolfe was a vexatious litigant under section 391, subdivision (b)(3). Wolfe filed four motions to strike, unauthorized surreplies, 30 requests for judicial notice, and a nonmeritorious application for complex designation. Moreover, Wolfe ignored the statutory stay imposed by section 391.6. Accordingly, the record supported a finding that Wolfe, while acting in propria persona, repeatedly file[d] unmeritorious motions, pleadings, or other papers, and engaged in other tactics that [were] frivolous or solely intended to cause unnecessary delay. ( 391, subd. (b)(3).)

C. Probability of Success

As already discussed, an order of security is only appropriate if the court finds that the plaintiff is a vexatious litigant and that the plaintiff does not have a reasonable probability of prevailing in this litigation. ( 391.1.) In the present case, the lower court found that Wolfe did not have a reasonable probability of prevailing in his lawsuit against Food Bank and Second Harvest. In his brief in this court, Wolfe failed to present any argument challenging this finding; he has therefore waived raising this as an issue on appeal.

Accordingly, we conclude that substantial evidence supported the lower courts ruling that Wolfe must furnish security prior to proceeding with his lawsuit in WolfeI.
D.The Amount of Security

The trial court required that Wolfe furnish security in the amount of $100,000 to proceed in his lawsuit against Food Bank and security in the amount of $60,000 to proceed in his lawsuit against Second Harvest. Wolfe does not specifically attack the sufficiency of the evidence to sustain that part of the courts orders fixing the amount of security at $100,000 and $60,000. Wolfe does raise the issue, however, that food charities cannot seek security because they are being represented on a pro bono basis. We therefore address this limited challenge to the security ordered.

The fact that food charities may not have to pay legal fees does not prevent them from moving pursuant to section 391.1. (See, e.g., Muller v. Tanner, supra, 2 Cal.App.3d at pp. 465-466.) [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. The question of whether he is to secure a windfall because his adversary chooses to represent himself is not relevant at that time. (Id. at p. 466.) The court in McColm v. WestwoodPark Assn., supra, 62 Cal.App.4th at pages 1221-1222, similarly rejected a claim that security was not required because the defendants did not have to pay for their representation. The court explained: [The plaintiffs] suggestion that [the defendant] needs no undertaking because its member-attorneys may volunteer their services is specious. It is one thing for [the plaintiff] to donate her time and legal skills to represent herself in an action she initiates. It is quite another to require attorney-members of the defendant organization to volunteer their time and legal expertise to respond to her myriad presentations without protection from an undertaking. (Ibid.)

Accordingly, we reject Wolfes argument that he cannot be required to furnish security because food charities did not have to pay for their legal services.

E. The Prefiling Order

Pursuant to section 391.7,^[13]the trial court entered a prefiling order prohibiting Wolfe from filing any new litigation in the courts of the State of California, in propria persona, without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. Wolfe has presented no argument in his appellate brief that disputes this portion of the order and he has therefore waived any challenge to this issue on appeal.

III. Wolfe II

As already discussed above, the trial court dismissed Wolfes complaint against food charities after he failed to post security, which was required after the court declared him to be a vexatious litigant in Wolfe II for essentially the same reasons that it had found him to be a vexatious litigant in Wolfe I. In Wolfe II, Wolfe alleged causes of action for public and private nuisance, and he sought compensatory and punitive damages as well as injunctive relief. His principal complaints were that Food Banks food distribution resulted in more people using the elevator and a long delay to get the elevator, which caused him to use the stairs. He also protested over the parking of Food Banks van in the passenger waiting zone in front of his apartment building, which made it difficult for him to hail a cab.

In his brief in Wolfe II in this court, Wolfe does not argue that substantial evidence does not support the lower courts findings that he was a vexatious litigant under section 391 subdivision (b)(1) and (b)(3), and that he did not have a reasonable probability of prevailing in Wolfe II against food charities. Further, he does not contest the amount of the security ordered and he makes no challenge to the prefiling order. He has therefore waived on appeal raising any challenge to the sufficiency of the evidence as to any of these issues.

Rather than contest the findings of the lower court, Wolfe raises constitutional and other challenges to the interpretation and application of the vexatious statute to him. Food charities argue that the only arguments Wolfe raised below were that section 391 could not be applied against him because he is a public interest litigant and an indigent plaintiff. Consequently, they argue that Wolfe waived raising the argument that collateral estoppel, res judicata, and the double jeopardy clause bar any application of section 391 to him. We conclude that, to the extent these issues are purely legal issues, we will still address them. Additionally, we conclude that most of Wolfes arguments raised in his appellate brief were presented in some form in the lower court and we will therefore consider each of his contentions.

A. Res Judicata and Collateral Estoppel

Similarly to his argument in Wolfe I, Wolfe again asserts that two judges in law and motion issued rulings contrary to Judge Quidachays finding that he was a vexatious litigant. He declares that the doctrine of res judicata or collateral estoppel applies and these rulings contradicting Judge Quidachays order preclude any finding that he is a vexatious litigant. The record in Wolfe II, as was the situation in Wolfe I, does not contain any document supporting Wolfes claim that other judges found that he was not a vexatious litigant. Accordingly, we reject his argument that earlier rulings bar a finding that he is a vexatious litigant.

Further, even if Wolfe could produce orders in his other lawsuits, none of these lawsuits involved Food Bank or Second Harvest. Wolfe has not alleged and there is no evidence that either Food Bank or Second Harvest was a party to the prior litigation and therefore Wolfe cannot use collateral estoppel or res judicata against them. (See, e.g., Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 & fn. 7 [claim preclusion applies when the first and second suits are between the same parties or parties in privity with them]; Lucido v. Superior Court, supra, 51 Cal.3d at p. 341 [the party against whom [issue] preclusion is sought must be the same as, or in privity with, the party to the former proceeding].)

B. The Double Jeopardy Clause

Wolfe also claims that subjecting him to multiple section 391 motions in various proceedings violates his Fifth Amendment right to be free from double jeopardy and he cites Hudson v. United States (1997) 522 U.S. 93. Wolfe claims that the vexatious litigant statutes are so punitive that they impose a criminal punishment on him.

The Double Jeopardy Clause provides that no person [shall] be subject for the same offence to be twice put in jeopardy of life or limb. (Hudson v. United States, supra, 522 U.S. at p. 98.) [T]he Clause serves the function of preventing both successive punishment and successive prosecution[.] (United States v. Dixon (1993) 509 U.S. 688, 704.) Double jeopardy only applies to criminal punishment, but even civil penalties may be a criminal penalty when the statutory scheme was so punitive either in purpose or effect, [citation] as to transfor[m] what was clearly intended as a civil remedy into a criminal penalty, [citation]. (Hudson, supra, at p. 99.)

We need not address the question whether the vexatious litigant statute is essentially a criminal punishment, because the double jeopardy clause has no application to the present case where the government is not a party. The double jeopardy clause is inapplicable when the litigation is between private parties. (See, e.g., Browning-Ferris Industries v. Kelco Disposal, Inc. (1989) 492 U.S. 257, 276, fn. 21.)

Indeed, Wolfe raised this same argument that the vexatious statute violates the double jeopardy clause in his federal lawsuit against Chief Justice Ronald M. George. The federal district court explained in Wolfe v. George (N.D.Cal. 2005) 385 F.Supp.2d 1004: While the double jeopardy clause may be enforced against the states due to its incorporation into the due process clause of the Fourteenth Amendment, [citation], the double jeopardy clause simply does not apply to the Vexatious Litigant Statute. [] Specifically, the double jeopardy clause serves to prohibit multiple punishments for criminal conduct. [Citation.] . . . Although the cases upon which Plaintiff relies . . . discuss the fact that a civil fine may be considered punitive, significantly, both cases involved a predicate criminal offense. (Id. at pp. 1016-1017.) The court concluded: [T]he fact that Plaintiff subjectively feels that the Vexatious Litigant Statute operates as a punishment is irrelevant. The relevant inquiry under the Fifth Amendment is whether the statute serves as a second punishment for a criminal offense, which it clearly does not. Indeed, in order to reach this conclusion, the Court would have to first accept the utterly preposterous premise that the pursuit of frivolous litigation is criminal conduct. Accordingly, the Court finds that Plaintiff has failed to state a claim under the double jeopardy clause of the Fifth Amendment. (Id. at p. 1017.)

For precisely the same reasons the federal district court rejected Wolfes attempt to apply the double jeopardy clause to the vexatious litigant statutes, we similarly reject his argument.

C. Considering Plaintiffs Entire History of Lawsuits

Wolfe argues that his prior record of litigation, which he claims reveals many successes, should be considered and balanced by the lawsuits decided adversely to him. As discussed above, the record on appeal does not establish that Wolfe had any prior record of success. Although we need not consider Wolfes argument because of the insufficient record, we briefly consider each of his contentions.

Wolfe claims that this court should reconsider its holding in Muller v. Tanner, supra, 2 Cal.App.3d at page 453, and conclude that the court should balance prior successes by the litigants record of failures. In Muller, the court noted that prior successes did not have to be considered when ruling on a section 391.1 motion, because an order to furnish security may not be made in every action because the court must also determine that there is no reasonable probability that [the plaintiff] will prevail in the litigation against the moving defendant. It may be assumed that the trial court will recognize that success breeds success when it is proper to do so. (Ibid.) The court in Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43explained that the language in Muller v. Tanner that the courtwill recognize that success breeds success when it is proper to do so[,] does not mean a trial court has discretion to review the soundness of the underlying suits, only that the trial court does consider the merits of the suit in which the litigant is claimed to be vexatious. (Wolfgram v. Wells Fargo Bank, supra, at pp. 57-58, fn. 9.)

The vexatious litigant statute does not instruct the court to balance prior success in litigation when considering the probability of success in the current lawsuit. Our courts are not obliged to provide a forum for litigation that has no objective chance of success. (E.g., 391 et seq.) Accordingly, even if the record did establish that Wolfe had been successful in other litigation, which this record does not, the trial court would not have been required to consider the merits or soundness of those lawsuits when assessing the merits of the lawsuits against Food Bank and Second Harvest.

D. Treatment of Litigants In Propria Persona

Wolfe contends that he should not be treated differently simply because he has not hired an attorney, especially when he has, according to him, such a rather brilliant record of success in public interest litigations . . . . He maintains that attorneys representing their clients lose cases, but they are not subject to section 391 proceedings.

As already noted, courts are not obliged to provide a forum for litigation that has no objective chance of success and the past success of a litigant has no bearing on the merit of the current lawsuit. The vexatious litigant statutes are justified by the need to deal with the problem created by the persistent and obsessive litigant who has constantly pending a number of groundless actions, often against the judges and other court officers who decide or were concerned in the decision of previous actions adversely to him. (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 993.) Further, although the language of section 391 et seq. refers to a person who is representing himself or herself in propria persona, the vexatious litigant statutes have also been applied to a person represented by counsel where counsel acts as a mere puppet or conduit for the clients abusive litigation tactics. (See, e.g., In re Shieh (1993) 17 Cal.App.4th 1154, 1166-1167.)

More significantly, as the court in Wolfe v. George, supra, 385 F.Supp.2d 1004, already pointed out, other statutes apply specifically to attorneys to ensure that they do not abuse the process. Attorneys are also subject to California Business and Professions Code [section] 6068, which provides, inter alia, that an attorney must: (1) support the Constitution and laws of the United States and California, (2) maintain the respect due to the courts of justice and judicial officers, (3) counsel or maintain only actions, proceedings, or defenses that appear to him or her legal or just; (4) employ means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law; and (5) not encourage either the commencement or the continuance of an action or proceeding for a corrupt motive of passion or interest. [Citation.] Additionally, an attorneys conduct is regulated by the State Bar of California and Californias Rules of Professional Responsibility. (Id. at p. 1015.) Additionally, other statutes control the filing of frivolous litigation by represented parties. (See, e.g., 128.5 [providing for the imposition of sanctions against an attorney or party who litigates in bad faith]; 907 [allowing a Court of Appeal to impose costs on an attorney or party who pursues a frivolous appeal]; 128.7 [providing for the imposition of sanctions against an attorney who submits papers to the court for the sole purpose of harassing the opposing party or causing delay].)

To the extent that Wolfe is alleging that the vexatious litigant statutes are unconstitutional, courts have clearly decided that question adversely to him. (Taliaferro v. Hoogs (1965) 236 Cal.App.2d 521, 526-528 [no equal protection violation against poor litigants and non-lawyers]; Bravo v. Ismaj, supra, 99 Cal.App.4th at pp. 222-225 [no procedural due process violation since a hearing is required under section 391.7]; Wolfgram v. Wells Fargo Bank, supra, 53 Cal.App.4th at p. 60 [section 391.7 does not violate due process because a litigant is free to retain counsel or request permission to file new litigation; also no denial of the right to petition].)

We therefore reject any claim that section 391 et seq. unfairly burdens unrepresented litigants.

E. First Amendment Rights

Wolfe contends that section 391 should not be applied to him because when a litigant brings a lawsuit in the public interest, the plaintiffs First Amendment right to bring such a lawsuit takes precedence. (See N.A.A.C.P. v. Button (1963) 371 U.S. 415, 439-440, 443.)

Even if we were to presume that Wolfe was bringing this lawsuit on behalf of the public interest, which the record does not support, Wolfes argument still would have no merit. Declaring certain individuals vexatious litigants also protects the general public because [t]he constant suer . . . becomes a serious problem to others than the defendant he dogs . . . [b]y clogging court calendars, he causes real detriment to those who have legitimate controversies to be determined and to the taxpayers who must provide the courts. (Wolfe v. George, supra, 385 F.Supp.2d at pp. 1012-1013, citing Taliaferro v. Hoogs, supra, 237 Cal.App.2d at p. 74.)

Further, the foregoing issu