Filed 6/26/17 Ortiz v. Brito CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


JO M. ORTIZ,

Plaintiff and Appellant,

v.

OMAR BRITO et al.,

Defendants and Respondents.


G053645

(Super. Ct. No. 30-2015-00798521)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Walter P. Schwarm, Judge. Affirmed.
Jo M. Ortiz, in pro. per., for Defendant and Appellant.
DLA Piper, Christopher Young and Ryan MacPherson for Defendants and Respondents.
* * *


Jo Ortiz sued Omar Brito and Thrifty Payless, Inc. (collectively Thrifty), for false advertising. Thrifty answered the complaint and filed a vexatious litigant motion. The court granted the motion, declared Ortiz a vexatious litigant, and ordered her to post a bond of $10,000 within 30 days. The court also entered a prefiling order requiring Ortiz to obtain permission to file future lawsuits in propria persona. Ortiz was served with a notice of ruling on December 2, 2015. She failed to post a bond. In March 2016, Thrifty moved to dismiss based on the lack of a bond. Ortiz opposed solely on the ground the court lacked jurisdiction, making the following misguided argument: “For the court to have jurisdiction/power to act, the defendants must first be served with process: summons and complaint, and thereafter, appear legally. [¶] Because the defendants in this case have not been served yet with summons and complaint, the court should strike on its own motion defendants’ motion to dismiss this case, or in [the] alternative, the court should deny defendants’ motion to dismiss this case.” The court granted the motion and dismissed the case on May 3, 2016. On May 31, 2016, Ortiz appealed from the order of dismissal.
On appeal, Ortiz renews her contention that the court lacked jurisdiction to act because defendants were never served. She argues, “It is not at the pleasure of the defendant, for the defendant to appear once the complaint has been filed in the superior court, for that would take away from plaintiffs, without Due Process, the rights the California Legislature has provided in [Code of Civil Procedure] Section 583.210[, subdivision (a)] to take up to three years to serve the defendant with summons and complaint.”
Ortiz misunderstands Code of Civil Procedure section 583.210, subdivision (a). That section operates as a shield for defendants, not as a sword to be wielded by plaintiffs. A complaint that is not served within the three years specified in section 583.210, subdivision (a), must be dismissed on the court’s own motion or on the motion of an interested party. (§ 583.250, subd. (a)(2).) The statute does not give plaintiff the right to dilly dally, imposing her will on the pace of the litigation as long as she pleases up to three years. Indeed, the Legislative Committee Comments to that section specifically list section 583.220 (general appearance) as an exception. Section 583.220 states, “The time within which service must be made pursuant to this article does not apply if the defendant enters into a stipulation in writing or does another act that constitutes a general appearance in the action.” (Italics added.) Here, defendants answered the complaint, which clearly constitutes a general appearance. Once that happened, service of the summons and complaint was unnecessary to confer jurisdiction.
Alternatively, Ortiz argues the vexatious litigant motion was erroneously granted. Before we address her contention, however, we must address Thrifty’s jurisdictional argument that Ortiz did not timely appeal from the vexatious litigant order. Ortiz was served a notice of entry of order on December 2, 2015, and did not appeal until May 31, 2016. If that order was immediately appealable, Ortiz’s appeal was untimely under California Rules of Court, rule 8.104(a)(1).
Thrifty’s argument, however, overlooks a crucial distinction. The vexatious litigant statutes provide two distinct remedies: an order in the case at hand that the plaintiff post security (or, for completely meritless claim, that the matter be dismissed; § 391.3, subds. (a)-(b)), and a prefiling order applying to future lawsuits requiring the vexatious litigant to obtain permission to file future lawsuits in propria persona (§ 391.7). The latter remedy is punishable by contempt and has been deemed an injunction that is immediately appealable. (§ 391.7, subd. (a); Luckett v. Panos (2008) 161 Cal.App.4th 77, 90 [“a prefiling order against a vexatious litigant meets the definition of an injunction”]; In re Marriage of Rifkin and Carty (2015) 234 Cal.App.4th 1339, 1347 [prefiling order immediately appealable].) “An order determining a party to be a vexatious litigant and requiring the posting of security under section 391.3,” however, “is not directly appealable. But if the plaintiff subsequently fails to furnish security, an appeal lies from the subsequent order or judgment of dismissal that follows under section 391.4.” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635.) Ortiz does not challenge the prefiling order on appeal, solely the requirement that she furnish security. Accordingly, her appeal is timely.
It is, however, without merit. Section 391, subdivision (b)(1), which the court relied on below, defines a vexatious litigant as one 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.” Ortiz contends the evidence does not support the court’s finding of five adverse determinations because, in some of the cases the court relied on, Ortiz had voluntarily dismissed the litigation without prejudice. This rendered the litigation nonfinal, she contends, and thus not “finally determined adversely” to her.
While we commend Ortiz on a plausible reading of the statute, it is not the reading California courts have adopted. “Plaintiff’s contention a voluntarily dismissed action cannot be counted for purposes of the vexatious litigant statute is contrary to the underlying intent of that legislation.” “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.” (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779; see Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406 [“A litigation is finally determined adversely to a plaintiff if he does not win the action or proceeding he began, including cases that are voluntarily dismissed by a plaintiff].) Accordingly, the court did not err in deeming Ortiz to be a vexatious litigant.

DISPOSITION

The judgment is affirmed. Thrifty shall recover its costs incurred on appeal.



IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.