v. Willmon
Filed
1/25/13 Brainard v. Willmon CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIFTH APPELLATE DISTRICT
WILLIAM J.
BRAINARD,
Plaintiff and Appellant,
v.
BRYAN WILLMON
et al.,
Defendants and Respondents.
F064347
(Super. Ct. No. CV56801)
APPEAL
from a judgment of the Superior Court of
County. James A. Boscoe, Judge.
William
J. Brainard, in pro. per., for Plaintiff and Appellant.
Michael
D. McComber for Defendants and Respondents.
-ooOoo-
After plaintiff
William J. Brainard filed the present action against defendants Bryan Willmon
and Carol Willmon, defendants responded by moving to have plaintiff declared a
vexatious litigant and to require the deposit of security. The trial court granted defendants’ motion
pursuant to Code of Civil Procedure
when plaintiff failed to furnish security as ordered, the action was dismissed.
contending the trial court abused its discretion. We will affirm.
FACTS AND PRODECURAL BACKGROUND
Plaintiff’s Complaint
On July 20,
2011, plaintiff commenced the present action, in
against defendants and their attorney, Michael D. Macomber, in Tuolumne County
Superior Court as case No. CV56801.
In the general factual allegations, the complaint alleged as
follows: On May 9, 2006, certain real
property in the County of Tuolumne (the Property) was purportedly sold or
transferred to “Kathleen O. Brainard†by defendants pursuant to a grant deed
recorded in the County of Tuolumne. On
that same date, defendants recorded a deed of trust on the Property. Four years later, on June 9, 2010, defendants
recorded a trustee’s deed upon sale that purported to show title in defendants’
name pursuant to judicial foreclosure.
Further,
according to the complaint, plaintiff recorded a document in 2011 entitled “Notice of Intent to Preserve Interest and
Title,†which allegedly contained “the evidence of title to the land,â€
consisting of plaintiff’s claim that he has the right or title to the property
based on a federal land grant referred to as “United States Land Patent
Number 2314.†A copy of the alleged
United States land patent, ostensibly signed by President Benjamin Harrison and
recorded in 1893, was attached to the complaint, which document reflected that
certain acreage was transferred by the United States in 1892 to an individual
named Gianbatista Musante. Nothing in
the complaint or attachments thereto showed any connection between Gianbatista
Musante (or rights he may have possessed) and plaintiff.
The complaint
further alleged that defendants regained possession of the Property by evicting
plaintiff through use of falsehood and fraud.
After plaintiff was evicted by the sheriff’s execution of a writ of
possession of the Property, defendants (through Mr. Macomber) took steps
to have plaintiff’s personal property items removed from the Property. Plaintiff was given an opportunity to remove
personal property items, including vehicles, but when he did not do so,
defendants treated the items as abandoned and had them removed.
The complaint
set forth a number of causes of action, apparently on the theory that plaintiff
should not have been evicted (i.e., it was his land) and that defendants should
not have removed plaintiff’s personal property items. The relief sought in the complaint was the
recovery of monetary damages.
Defendants’ Motion to Declare Plaintiff
a Vexatious Litigant
In
response to plaintiff’s complaint, rather than filing an answer, defendants
immediately moved for an order to declare plaintiff a vexatious litigant and to
require him to furnish a bond. In
support of that motion, defendant Bryan Willmon asserted in his declaration as
follows: “On April 25, 2006, I and my
wife sold property located at … in Big Oak Flat, California, to Kay O. Brainard. Kay Brainard is the mother of Plaintiff, William James Brainard. During these discussions, I was told by Kay
Brainard that she was purchasing this property for her son. [¶] … I never entered into a contract with William Brainard. The only contract entered into was with his
mother. [¶] … In
the fall of 2009, Kay Brainard defaulted in her payments for the property. I contacted Dual Arch International which
proceeded with a foreclosure of the … property.
A Trustee’s Deed, granting title in this property back to me and my
wife, was recorded on June 9, 2010.â€
According to
defendants’ motion, starting in December 2009, plaintiff began to file
frivolous lawsuits and motions against defendants, all of which were filed by
plaintiff in propria persona, and all were determined adversely to
plaintiff. Each of these litigation
matters related in some way to plaintiff’s assertion that he is the owner of
the property under a federal land patent.
Defendants contended that the present lawsuit fits this same pattern of
litigious conduct and harassment directed at defendants.
In addition to
the litigation itself, defendants’ motion noted that communications from
plaintiff boasted of his intention to harass defendants in the future. For example, in a letter that plaintiff sent
to defendants’ attorney, plaintiff stated:
“I’d love to know your billing to Bryan.
Please do ask for attorney fees just so I know how much I have cost him
in the last 15 months. [¶] Can he go another 15 months or years at your
rates? We will find out. Regardless of the Muni case we still have to
go to Superior Court for a title action.…
[¶] … [¶] After that it[’]s
a fraudulent foreclosure action. Then
after that it[’]s an offset action. Then after that it[’]s
a mechanic’s lien and foreclosure action and all the appeals in between each
action. [¶] What do you think years and years of fees
from Bryan? Wonder what he’s thinking
right now because you know I will never quit.
[¶] Be a real counselor at law
and try to settle before your client is bled to financial ruin .…†Similarly, Mr. Willmon’s declaration in
support of the motion included an excerpt from one of plaintiff’s emails to an
acquaintance, wherein plaintiff stated the following about his litigations
versus the defendants herein: “Call
Bryan and see how he’s doing. Haven’t
made a payment in over 18 months and still own the property. I ‘have him’ in the Court of Appeals
right now. In the last year I have put
him thru hell so to speak by keeping him in court; starting Dec. 3,
2009 .…†(Capitalization omitted.)
Defendants’
motion specifically identified five unsuccessful litigations filed by
plaintiff, in propria persona, between December 2009 and September 2011. These included:
Brainard v. Willmon, Tuolumne County
Superior Court case No. CV55249, filed on December 3, 2009. This case was dismissed following defendants’
successful demurrer.
Brainard v. Willmon, a civil adversary
proceeding filed in United States Bankruptcy Court case
No. 10-09015-E. This case was
dismissed on September 24, 2010.
Brainard v. Willmon, United States
District Court case No. 1:10 CV 01126-OWW-SMS. This case was dismissed on September 24,
2010.
Appeal filed by plaintiff
of denial of motion to quash service in Willmon
v. Brainard, Tuolumne County Superior Court case No. CVL55835. Motion to dismiss appeal was granted on
December 10, 2010.
Brainard v. Provost, etc. Willmons, et al., United States District Court case No. 2:11- CV-00850-
MCE-DAD. This case was dismissed on
May 13, 2011.
Plaintiff’s
Motion in Response
Plaintiff
did not file an opposition to defendants’ motion to declare him a vexatious
litigant. Instead, plaintiff filed a
request to the superior court clerk for entry of defendants’ defaults and moved
for judgment on the pleadings. The clerk
entered the defaults as requested on October 3, 2011. Plaintiff’s motion for judgment on the
pleadings was filed on the ground that defendants had not filed an answer or
other defensive pleading. Plaintiff’s
motion sought an order granting him restoration of the Property, plus damages
in the amount of $211,000. Defendants
responded by pointing out to the trial court that their defaults should be set
aside because the vexatious litigant motion automatically stayed the
action. (§ 391.6 [stay of
proceedings].)
Hearing and Order
The
hearing on defendants’ motion to declare plaintiff a vexatious litigant was
held on October 13, 2011. Plaintiff
did not appear at the hearing and, as noted above, he did not file
opposition. The trial court set aside
the defaults entered by the clerk, and then proceeded to grant defendants’
motion. Plaintiff was ruled to be a
vexatious litigant under section 391.
Furthermore, the trial court held there was no probability that
plaintiff would prevail on the merits and, therefore, plaintiff was ordered to
post a security in the sum of $20,000 within 60 days. It was further ordered that “this case will
be dismissed pursuant to [section] 391.4 upon Plaintiff’s failure to post the
required security.†Finally, on
December 14, 2011, the trial court on its own motion also entered a
prefiling order against plaintiff pursuant to section 391.7.
On
December 15, 2011, after the time expired to post security and plaintiff
had failed to comply, the case was dismissed with prejudice. Plaintiff’s timely appeal followed.
DISCUSSION
I. Standard of Review
“A
court exercises its discretion in determining whether a person is a vexatious
litigant. [Citation.] We uphold the court’s ruling if it is
supported by substantial evidence.
[Citations.] On appeal, we
presume the order declaring a litigant vexatious is correct and imply findings
necessary to support the judgment.
[Citation.]†(
211, 219; accord, Golin v. Allenby
(2010) 190 Cal.App.4th 616, 636.)
Similarly, a court’s decision that a vexatious litigant does not have a
reasonable probability of success is based on an evaluative judgment in which
the court is permitted to weigh evidence.
(Moran v. Murtaugh Miller Meyer
& Nelson, LLP (2007) 40 Cal.4th 780, 785-786 (Moran).)
name="_ftnref3" title="">[3] A trial court’s conclusion
that a vexatious litigant must post security does not, as with a demurrer,
terminate the action or preclude a trial on the merits. Rather, it merely requires the party to post
security. Accordingly, if there is any
substantial evidence to support a trial court’s conclusion that a vexatious
litigant had no reasonable probability of prevailing in the action, it will be
upheld. (Moran, supra, at
pp. 784-786; Golin v. Allenby,
II. Vexatious Litigant Statute
“The
vexatious litigant statute (§§ 391-391.7) was enacted in 1963 to curb
misuse of the court system by those acting in propria persona who repeatedly
relitigate the same issues. Their abuse
of the system not only wastes court time and resources but also prejudices
other parties waiting their turn before the courts. [Citations.]â€
(In re Bittaker (1997) 55
Cal.App.4th 1004, 1008.) The statute
provides a “means of moderating a vexatious litigant’s tendency to engage in
meritless litigation.†(
provides a procedure in pending litigation for declaring a person a vexatious
litigant, and establishes procedural strictures that can be imposed on
vexatious litigants. A vexatious
litigant may be required to furnish security before proceeding with the pending
litigation; if that security is not furnished, the litigation must be
dismissed. (§§ 391.3,
391.4.)’†(Singh v. Lipworth (2005) 132 Cal.App.4th 40, 44, quoting
A
court may declare a person to be a vexatious litigant who, 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 … finally determined adversely to the person .…†(§ 391, subd. (b)(1).) The term “litigation†means “any civil action
or proceeding, commenced, maintained or pending in any state or federal
court.†(§ 391, subd. (a).) Litigation includes an appeal or civil
writ. (McColm v. Westwood Park Assn.
(1998) 62 Cal.App.4th 1211, 1216.) A
case is finally determined adversely to a plaintiff if he does not win the action
he began, including cases which are voluntarily dismissed by a plaintiff. (Tokerud
v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779;
56.)
At
the time of the proceedings below, section 391.1 provided as follows
regarding a motion to furnish security:
“In any litigation pending in any court of this state, at any time until
final judgment is entered, a defendant may move the court, upon notice and
hearing, for an order requiring the plaintiff to furnish security. The motion must be based upon the ground, and
supported by a showing, that the plaintiff is a vexatious litigant and that
there is not a reasonable probability that he will prevail in the litigation
against the moving defendant.â€
Section 391.3, subdivision (a), sets forth the basis for
granting the motion: “[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.†If security is ordered by the
court, and is not furnished by the plaintiff, “the litigation shall be
dismissed as to the defendant for whose benefit [the security] was ordered
furnished.†(§ 391.4.)
III. Trial Court Correctly Determined Plaintiff
to be a Vexatious Litigant
Defendants’
motion included evidence that plaintiff is a vexatious litigant. The declarations of Mr. Macomber and
Mr. Willmon, and the certified court records submitted with defendants’
motion, as summarized above, clearly established that plaintiff commenced “at
least five litigations,†in propria persona, that were resolved against him
during the relevant seven-year period. (§ 391, subd. (b)(1).) Accordingly, substantial evidence supported
the trial court’s determination of plaintiff’s vexatious litigant status
pursuant to section 391, subdivision (b)(1). Plaintiff’s appeal apparently argues that
there were only four prior litigations, since his unsuccessful appeal should
not count. Contrary to plaintiff’s
argument, the law is clear that filing of appeals and civil writs qualify as a
separate litigation under the statute. (
62 Cal.App.4th at p. 1216; accord, In
re R.H. (2009) 170 Cal.App.4th 678, 691-695.) We hold the trial court correctly found
plaintiff to be a vexatious litigant.
IV. Order Requiring Security Was Not an Abuse
of Discretion
As
noted, a court may require a vexatious litigant to furnish security as a
condition of prosecuting a pending lawsuit if it determines, after hearing the
evidence upon the motion, that “there is no reasonable probability that the
plaintiff will prevail in the litigation against the moving defendant.†(§ 391.3, subd. (a).) In support of defendants’ motion, the declaration
of Mr. Willmon averred that he and his wife sold the Property to
plaintiff’s mother, Kay Brainard, who indicated to them she was acquiring the
Property for her son’s benefit, but when she later defaulted, defendants took
back title to the Property through judicial foreclosure. This constituted substantial evidence that
any interest or expectancy plaintiff may have had in the Property was derived
from or subsumed under his mother’s purchase from defendants, and would be
subject to defendants’ deed of trust.
Additionally, as to any claims based on the personal property items left
on the Property, Mr. Macomber stated in his declaration that when he
called plaintiff to find out when plaintiff would like to retrieve any personal
property items he wanted, plaintiff responded that “he didn’t want anythingâ€
from the Property. Plaintiff did not oppose
defendants’ motion, did not appear at the hearing and did not present any
contrary evidence or argument.
In passing, we
note that although exhibits attached to plaintiff’s complaint made reference to
an alleged federal land patent issued in 1892 to an individual by the name of
Gianbatista Musante, nothing in the complaint or attachments thereto showed any
connection between Gianbatista Musante (or rights he may have possessed) and
plaintiff. And even if a Mr. Musante
once owned the land as indicated in the alleged federal land patent, plaintiff
failed to intelligibly explain, either in the trial court or in the present
appeal, how that fact could conceivably assist plaintiff in this case. (See, e.g., Virgin v. County of San Luis Obispo (9th Cir. 2000) 201 F.3d 1141,
1143, quoting Oneida
part, matters of local property law to be vindicated in local
courts .…’â€].)
We conclude the
trial court correctly concluded that plaintiff did not have a reasonable
probability of prevailing in the litigation.
The order requiring plaintiff to furnish security under
sections 391.1 to 391.3 was supported by substantial evidence and was not
an abuse of discretion.
V. Other Issues
Finally,
plaintiff argues the trial court erred in setting aside the defaults entered by
the clerk, and that it should have addressed plaintiff’s motion for judgment on
the pleadings. Not so. As the trial court’s order correctly stated,
the action was stayed pursuant to section 391.6, and thus the defaults should
not have been taken and were correctly set aside. Plaintiff has failed to demonstrate any error
or abuse of discretion in regard to the trial court’s decision to set aside the
defaults or its refusal to reach the judgment on the pleadings while the action
was stayed.
DISPOSITION
The
orders and judgment of the trial court are affirmed. Costs on appeal are awarded to defendants.
_____________________
Kane, J.
WE CONCUR:
_____________________
Gomes, Acting
P.J.
_____________________
Franson, J.
name="_ftn1" title="">[1] Unless otherwise indicated, all further statutory
references are to the Code of Civil Procedure.
name="_ftn2" title="">[2] In so ordering, the trial court also set aside a clerk’s
entry of default because defendants’ motion was pending and had stayed the
action.
