Filed 9/17/18 Hamilton v. Arana CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I. INTRODUCTION

Acting in propria persona, Paul Hamilton filed the underlying action for intentional infliction of emotional distress against S. Arana, a correctional officer at the prison where Hamilton is an inmate. During pretrial proceedings, the superior court declared Hamilton to be a vexatious litigant under California’s vexatious litigant statute, Code of Civil Procedure, section 391 et seq.,[1] and ordered him to post security before proceeding with his case against Arana. Hamilton did not post security, but he did file a notice of appeal from the court’s order declaring him a vexatious litigant. Thereafter, the court dismissed Hamilton’s complaint with prejudice and entered judgment in favor of Arana.[2]

The orders declaring Hamilton a vexatious litigant and requiring him to post security were interlocutory and not appealable. However, pursuant to our policy that notices of appeal should be construed in favor of their sufficiency, we treat this appeal as being from the appealable judgment of dismissal. (Roston v. Edwards (1982) 127 Cal.App.3d 842, 845–846.) We affirm that judgment.

II. THE VEXATIOUS LITIGANT LAW

“The vexatious litigant law was enacted to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits or attempt to relitigate issues previously determined against them. [Citations.] The abuse of the system by such individuals ‘not only wastes court time and resources but also prejudices other parties waiting their turn before the courts. [Citations.]’ [Citation.] The statute provides a ‘means of moderating a vexatious litigant’s tendency to engage in meritless litigation.’ [Citation.]” (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406 (Garcia).)

The vexatious litigant law establishes four ways that a person can be designated as a vexatious litigant, each corresponding to a statutory definition codified in section 391, subdivision (b) (section 391(b)). Two of those definitions are potentially relevant here.

First, section 391(b)(1) defines a vexatious litigant as a person 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 (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.”

Second, under section 391(b)(3) a vexatious litigant is a person who: “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.”

“The term “ ‘[l]itigation’ ” is defined broadly as ‘any civil action or proceeding, commenced, maintained or pending in any state or federal court.’ (§ 391, subd. (a).) A litigation includes an appeal or civil writ proceeding filed in an appellate court. [Citations.] 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. [Citations]” (Garcia, supra, 231 Cal.App.4th at pp. 406–407.)

A party who is declared to be a vexatious litigant may be required to furnish security based on a showing that there is not a reasonable probability that he or she will prevail in the litigation against the defendant. (§ 391.1) If the defendant makes this requisite showing, “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).) 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.)

A party who is declared to be a vexatious litigant may also be required to comply with a prefiling order, prohibiting him or her “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).) “Disobedience of the order by a vexatious litigant may be punished as a contempt of court.” (Ibid.)

III. FACTUAL AND PROCEDURAL BACKGROUND

A. Hamilton’s Propria Persona Complaint

In August 2015, Hamilton filed a complaint seeking damages for emotional distress he allegedly suffered in February 2015 while he was an inmate at San Quentin prison. According to the complaint, the incident occurred shortly after Arana, who was a correctional officer at the prison, conducted an “illegal search” of Hamilton’s “living quarters.” When Hamilton approached Arana about this matter, Arana used racist and profane language to tell Hamilton to get out of his face. Hamilton alleged that Arana’s remark caused him damage in the following way: “I am a black African Bahamian, and this really bothered me to the point of emotionally being stressed out, based upon the history of my [ancestors] where they suffered rapes, tortures, and even death as they were [referred] to by this . . . word I was labeled and [referred] to on this date by defendant Officer S. Arana.”

Hamilton named Arana and Arana’s supervisor as defendants responsible for causing him harm and sought $500,000 in compensatory damages and $500,000 in punitive damages from each of them. Arana’s supervisor was dismissed from this action with prejudice after the court sustained his demurrer.

B. Arana’s Motion to Declare that Hamilton Is a Vexatious Litigant

In March 2017, Arana filed a motion to declare Hamilton a vexatious litigant and to require him to post security before proceeding with the action. Arana argued that Hamilton was a vexatious litigant because he had commenced at least five litigations within the prior seven-year period that satisfied the requirements of section 391(b)(1). Arana argued that Hamilton was also a vexatious litigant under section 391(b)(3) because he had repeatedly filed unmeritorious motions, pleadings, or other papers, and engaged in other frivolous tactics while acting as a pro. per. litigant. Arana requested that the court issue a prefiling order under section 391.7, subdivision (a) as a preemptive measure to protect future courts and adverse parties, and require Hamilton to post security pursuant to section 391.3 because there was no reasonable probability that he would prevail on his cause of action against Arana for intentional infliction of emotional distress.[3]

On April 18, 2017, the trial court filed an order granting Arana’s motion, adopting its tentative ruling as the ruling of the court (the April 2017 order). The April 2017 order contained three key rulings.

First, the court found that Hamilton is a vexatious litigant based on evidence produced by Arana, which established that Hamilton had commenced “at least” five in propria persona litigations that satisfy the requirements of section 391(b)(1). The five qualifying litigations relied on by the trial court are:

(1) Hamilton v. Carr & Morelock, Fresno County Superior Court No. 11CECG02801 (Carr).

(2) Hamilton v. McKinney/Soukup, Imperial County Superior Court No. ECU04180 (McKinney).

(3) Hamilton v. Tootell, Marin County Superior Court No. 1403715 (Tootell).

(4) Hamilton v. CDCR Chief of Inmate Appeals, Marin County Superior Court No. 152922 (CDCR Chief).

(5) Hamilton v. Yates, Eastern District of California No. 1:10-cv-1925-LJO-MJS (Yates).

Because the evidence established that Hamilton is a vexatious litigant under section 391(b)(1) the court found there was “no reason to further waste judicial time and resources” addressing Arana’s alternative contention that Hamilton also qualified as a vexatious litigant under section 391(b)(3).

Second, the court granted Arana’s request to issue a prefiling order pursuant to section 391.7, subdivision (a). The court found that Hamilton’s “history of repeatedly filing actions which are frivolous or solely intended for delay, amply proves the need for a pre-filing order.”[4]

Finally, the court granted Arana’s motion to require Hamilton to post a $5,000 security before proceeding with his complaint, pursuant to section 391.3(a). In support of this order, the court found that it was not reasonably probable Hamilton could prove that he suffered severe emotional distress, which was an essential element of his cause of action for intentional infliction of emotional distress. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051 (Hughes).) The court found that $5,000 was a reasonable amount to cover Arana’s anticipated expenses in this action, and ordered that Hamilton had 45 days to post this security.

On June 12, 2017, the court dismissed Hamilton’s case with prejudice for failing to the post the required security. Judgment was entered that same day.

IV. DISCUSSION

A. Issues on Appeal

Hamilton challenges the trial court’s findings that (1) he is a vexatious litigant and (2) it is not reasonably likely that he will prevail on his emotional distress claim.

“ ‘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.]’ [Citations] 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. [Citation.] 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. [Citations.]” (Garcia, supra, 231 Cal.App.4th at pp. 407–408.)

In undertaking this review, we are mindful that Hamilton, as the appellant, has the burden of overcoming a presumption that the judgment is correct by affirmatively demonstrating prejudicial error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564–566.) Unfortunately, Hamilton’s appellate briefs are difficult to decipher and most of his arguments are incomprehensible. We are also cognizant that Hamilton is representing himself, but his status as a pro. per. litigant does not exempt him from the rules of appellate procedure or relieve his burden on appeal. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) We afford pro. per. litigants “ ‘the same, but no greater consideration than other litigants and attorneys. [Citation.]’ [Citation.]” (Ibid.) Thus, to the extent Hamilton complains to this court that certain errors occurred below but fails to offer pertinent or intelligible argument to support his position, we are not required to address the alleged errors and hereby deem them waived. (See Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119–1120; Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384.)

B. The Record Supports the Finding that Hamilton Is a Vexatious Litigant

As noted, the trial court found that Hamilton has commenced at least five in pro. per. litigations that satisfy the requirements of section 391(b)(1). On appeal, Hamilton concedes that three of these cases are qualifying litigations within the meaning of the vexatious litigant law. Therefore, we affirm the trial court’s findings that Carr, McKinney, and Tootell are all litigations other than in small claims court that Hamilton commenced, prosecuted, or maintained in propria persona during the relevant time period and that were either finally determined adversely to him or were unjustifiably permitted to remain pending for at least two years without having been brought to trial or hearing. (§ 391, subd. (b)(1).)

Hamilton disputes that CDRC Chief and Yates, cases (4) and (5) in our factual summary, are adverse litigations within the meaning of section 391(b)(1). We will address separately each of these cases.

CDCR Chief was an original writ proceeding filed by Hamilton on July 28, 2015. Hamilton sought a writ of mandate to compel the Director of the California Department of Corrections and Rehabilitation to issue a response to Hamilton’s “third level appeal” from an administrative ruling regarding a grievance Hamilton had filed. The grievance related to the same incident that is at issue in the present case. Importantly, the ruling that Hamilton sought to compel by filing his petition had been issued July 13, 2015. Upon review of the matter, the third level appeal was denied and a prior finding that Arana did not violate staff policy was affirmed. Notwithstanding these facts, Hamilton maintained his writ proceeding until January 20, 2017, when he voluntarily dismissed the petition.

In this court, Hamilton contends that CDCR Chief did not result in an adverse judgment because (1) he made the choice to “discontinu[e] to prosecute,” and (2) he only did so after respondent complied with his demands.

First, as noted previously, a case that was voluntarily dismissed by a plaintiff can be counted when applying the vexatious litigant law. (Garcia, supra, 231 Cal.App.4th at p. 406.) “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.)

Second, Hamilton does not cite any evidence in the record supportive of his factual assertion that he dismissed the petition in CDCR Chief after the respondent complied with his demand. The trial court found that Hamilton filed that petition after “the Director had already issued his Third Level Decision,” and for that reason the petition was completely unnecessary, clogged the courts, and wasted judicial time and resources. This finding is supported by substantial evidence summarized above.

Hamilton also contends that counting CDCR Chief as a qualifying prior litigation under section 391(b)(1) violates Fink v. Shemtov (2010) 180 Cal.App.4th 1160 (Fink). In Fink, the appellate court affirmed an order declaring that the plaintiff was a vexatious litigant. (Id. at p. 1163.) In reaching this conclusion, the Fink court confirmed that “a writ proceeding generally qualifies as a litigation” within the meaning of the vexatious litigant statute. (Id. at p. 1172.) However, the court also held that a summary denial of a writ petition does not necessarily constitute a final adverse determination because if the petition challenged a pretrial order that could also be reviewed in a later judgment, then a summary denial would not be a final adverse ruling. (Ibid.) On the other hand, the court recognized, when a writ petition is the sole means of securing review of a superior court ruling, then a summary denial on substantive or procedural grounds would qualify as a final determination of litigation for purposes of qualifying for vexatious litigant status under section 391(b)(1). (Id. at p. 1173.)

Fink does not assist Hamilton in this case because CDCR Chief was not dismissed pursuant to a summary denial of the writ petition. Rather, as discussed above, Hamilton voluntarily dismissed that case under circumstances that demonstrate his petition was meritless from the outset. We affirm the trial court’s finding that this case was properly counted as a litigation that was finally determined adversely to Hamilton.

Next, we consider Yates, a pro. per. civil rights action in which Hamilton alleged that his conditions of confinement at Pleasant Valley State Prison violated the Eighth Amendment because he was denied outdoor exercise during a prison lockdown. On September 21, 2015, the federal district court granted a defense motion for summary judgment and ordered that judgment be entered against Hamilton. On May 18, 2016, the Ninth Circuit Court of Appeals filed an order revoking Hamilton’s in forma pauperis status and directing Hamilton to pay docketing and filing fees in his appeal from the Yates judgment within 21 days to avoid automatic dismissal of his appeal.[5] On June 21, 2016, Hamilton’s appeal was dismissed for failure to pay the required fees.

Hamilton attempted to secure Supreme Court review in Yates pursuant to petitions for a writ of mandate and a writ of certiorari. Both petitions were returned to him because they did not comply with pertinent rules. When the second petition was returned on November 2, 2016, Hamilton was notified that “the Clerk is directed not to accept any further petitions in noncriminal matters unless the docketing fee required by [U.S. Supreme Court Rules,] Rule 38(a) is paid and the petition is submitted in compliance with [U.S. Supreme Court Rules,] Rule 33.1.”

In this court, Hamilton contends that Yates does not qualify as an adverse judgment, but he fails to articulate a sound reason why the evidence summarized above should be deemed insufficient. His primary complaint appears to be that Arana failed to carry his burden of proving there is a final judgment in Yates. We disagree. The evidence shows that Hamilton failed to perfect his Ninth Circuit appeal from the judgment as of June 2016, more than two years ago. Nothing that we have found in the record contradicts the trial court’s finding that this judgment is now final.[6]

We affirm the trial court’s finding that Hamilton is a vexatious litigant under section 391(b)(1). In light of this conclusion, we decline to address Arana’s argument that Hamilton is also a vexatious litigant under section 391(b)(3).

C. The Record Supports the Order Requiring Hamilton to Post Security

As noted, the trial court found that Hamilton was required to post a $5,000 security before proceeding with his case against Arana. On appeal, Hamilton implicitly challenges the order imposing a security requirement by claiming that the trial court abused its discretion by concluding that it is not reasonably probable that he will prove his emotional distress claim.

“A cause of action for intentional infliction of emotional distress exists when there is ‘ “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” ’ ” ’ [Citations.]” (Hughes, supra, 46 Cal.4th at p. 1050.) “With respect to the requirement that a plaintiff show severe emotional distress, [the California Supreme Court] has set a high bar. ‘Severe emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’ ” ’ [Citation.]” (Id. at p. 1051.)

In this case, the trial court found that it is not reasonably probable that Hamilton will succeed in proving that he suffered severe emotional distress as a proximate result of a racial slur allegedly uttered by Arana. The court based this finding on its independent review of the entire record, which included a pending motion for summary judgment, and provided a detailed explanation of its reasoning in the April 2017 order.

The trial court gave three primary reasons for its ruling. First, Hamilton did not allege any specific facts in his complaint that could be used to establish that he suffered severe distress, but only alleged that he was “ ‘emotionally [] stressed out.’ ” Second, Hamilton’s “current unsupported claims of severe emotional distress” were similar to claims made in multiple prior cases involving alleged violations of his rights, in which Hamilton was not successful. The court found that this history of “unproven extravagant claims” further diminished his poor credibility and decreased the likelihood that he could succeed in proving his alleged injuries. Third, Arana had supported his pending motion for summary judgment with a report by Dr. Anna Glezer, a medical doctor and psychiatrist who conducted a psychological evaluation of Hamilton. Dr. Glezer reported that Hamilton did not show symptoms, impairments, or behaviors to indicate he was suffering from either a major depressive order or a posttraumatic stress disorder.

Hamilton does not challenge the evidentiary basis for the court’s ruling, which is supported by, inter alia, the complaint, a declaration from Dr. Glezer, and evidence of several other meritless cases filed by Hamilton. Nor does Hamilton otherwise demonstrate that the trial court abused its discretion by concluding that it is not reasonably likely that he will prove his case against Arana.

Hamilton does contend that the trial court was biased against him, but he cites no evidence or circumstance other than the fact that the court ruled against him. Hamilton also contends that another judge that was previously assigned to this case found that he was likely to prove his claim. However, the record citation he provides is to an order overruling Arana’s demurrer. Demurrers serve the limited function of testing the legal sufficiency of a complaint by assuming that all properly pleaded factual allegations are true. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) Thus, the fact that Hamilton withstood a demurrer is not evidence that he can prove that he suffered severe emotional distress. We find no evidence in this record supportive of that claim.

V. DISPOSITION

The judgment is affirmed. In the interests of justice, the parties are to bear their own costs on appeal.

_________________________

SMITH, J.^*

We concur:

_________________________

STREETER, Acting P. J.

_________________________

REARDON, J.

^* Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.