Sanders v. Ryan

 

 

 

Filed
1/29/07  Sanders v. Ryan CA4/1

 

 

 

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered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.

 

 

 

COURT
OF APPEAL, FOURTH APPELLATE DISTRICT

 

DIVISION
ONE

 

STATE
OF CALIFORNIA

 

 

 

PHILLIP C. SANDERS,               Plaintiff and Appellant,               v.   STUART RYAN et al.,               Defendants and Respondents.

D048208         (Super. Ct. No. ECU 02742)

 

 

            APPEAL from a judgment of the Superior Court of Imperial County,
Christopher W. Yeager, Judge.  Affirmed.

 

I.

INTRODUCTION

            Appellant Phillip C. Sanders appeals from the
dismissal of his action against respondents Stuart Ryan, the warden at
Calipatria State Prison (CSP), Gerald Janda, the associate warden at CSP, and
Mary Sosa, a correctional officer at CSP.  Sanders ordered specialty food items
from a joint Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) food sale
that was held at the prison as part of a fundraiser.  The food items were to be
distributed on May 1, 2005.  However, the food items were not delivered to Sanders
because personnel at CSP determined that the food was contaminated.  After the
contamination was discovered, CSP prepared similar food items to distribute to
inmates.  Sanders refused to accept the substitute food items and sought a
refund of the $21.50 he had paid for the food.  After he was denied a refund,
Sanders filed a complaint for breach of contract and concealment, naming as
defendants Ryan, Janda, and Sosa individually, as well as Alcoholics Anonymous
World Services, Inc. and Narcotics Anonymous World Services, Inc.  Sanders
attached to his complaint a copy of the order form for the food items.  He
alleges that the order form constitutes a contract between him and the
defendants.

            The three individual respondents demurred to
Sanders's complaint, contending that Sanders failed to allege facts sufficient
to state a cause of action for breach of
contract or concealment against them.  The trial court sustained the
respondents' demurrer and dismissed them from the case, with prejudice.  The
court also found that Sanders had previously been determined to be a vexatious
litigant within the meaning of Code of Civil Procedure^[1] section
391, subdivision (b)(1), and issued a prefiling order requiring Sanders to
obtain leave of court before filing any further litigation. 

 

            Sanders appeals
from the trial court's judgment, contending that he did sufficiently state
causes of action for breach of contract and concealment as to respondents, and
claiming that the trial court erred in finding him to be a vexatious litigant
and/or in entering a prefiling
order.

            We conclude that Sanders failed to state facts
sufficient to maintain his causes of action against the three respondents.^[2] 
We further conclude that the doctrine of collateral estoppel prevents Sanders
from relitigating his status as a vexatious litigant, and that the trial court
did not err in issuing a prefiling order pursuant to the vexatious litigant
statute.  We therefore affirm the judgment.

II.

FACTUAL AND
PROCEDURAL BACKGROUND

            Sanders is a state prison inmate serving a
sentence of life without the possibility of parole.  During a food sale at CSP,
Sanders ordered a number of Mexican food items that were to be delivered on May 1, 2005.  The food sale was sponsored jointly by AA and NA.  The order form, which
Sanders attached as an exhibit to his complaint, is titled "AA/NA MEXICAN
FOOD SALE."  Sanders ordered one each of the three entrees offered, for a
total purchase price of $21.50.  The bottom half of the order form is entitled "TRUST
ACCOUNT WITHDRAWAL ORDER."   That portion of the form states:  "I
hereby request that my Trust Account be charged $____ for the purpose stated
below and

authorize the withdrawal of
that sum from my account[.]"  The blank space is filled in with a
handwritten "21.50."  Sanders signed the form.  The signature on the
line indicating approval of the request appears to read "M. Soza." 

            On October 31, 2005, Sanders filed a complaint
naming five defendants ─ the three respondents as well as AA and NA. 
Sanders alleged in his complaint that the defendants breached a contract with
him by "[f]ail[ing] to deliver food as agreed" and "[f]ail[ing]
to refund money upon request after failure to deliver
food . . . ."  The food Sanders had ordered was not
delivered because prison personnel determined that the food was contaminated. 
The prison offered to provide similar food items as a substitute for the food Sanders
had ordered, but Sanders refused to accept the substitute food items.  Instead,
he sought a refund from prison officials.  Sanders's request for a refund was
denied.

            On January 3, 2006, the respondents demurred to
the complaint on multiple grounds.  They argued that Sanders was a vexatious
litigant, that the court lacked subject matter jurisdiction, and that Sanders
had failed to allege facts sufficient to state a cause of action against the
individual defendants.  After a hearing on the matter, the trial court
sustained the demurrer and on March 27, 2006, dismissed the case with prejudice
as to the individual defendants.  In ruling on the demurrer, the trial court
concluded that Sanders had failed to allege facts sufficient to establish the
existence of a contract between himself and Ryan, Janda, and Sosa.  The trial
court also concluded that Sanders had failed to state facts showing that the
three individual defendants made any representations about the food items that
could support a cause of action for concealment.  The trial court further found
that Sanders is a vexatious litigant within the meaning of the vexatious
litigant statute, based upon a finding by a trial court in Los Angeles County
in a previous case.

            Sanders filed a notice of appeal on March 6, 2006.^[3]

III.

DISCUSSION

A.        Sanders
failed to state facts sufficient to establish that the respondents were

            parties
to the contract allegedly breached

 

            Sanders contends that the trial court erred in
sustaining respondents' demurrer to his cause of action for breach of contract
because, he claims, he alleged sufficient facts to establish both the existence
of a contract between himself and the respondents, and that respondents
breached that contract.  We conclude that Sanders failed to plead facts
sufficient to state a cause of action against respondents for breach of
contract, and that the trial court thus properly sustained the respondents'
demurrer. 

            "A demurrer tests the legal sufficiency of
factual allegations in a complaint. [Citation.]"  (Rakestraw v. California
Physicians' Service (2000) 81 Cal.App.4th 39, 42-43.)  In reviewing an
order sustaining a demurrer to a cause of action, an appellate court exercises
independent judgment in determining whether the complaint's factual allegations
sufficiently state a cause of action.^[4]  (Lazar
v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.)  We treat the demurrer as
admitting all material facts that are properly pleaded.  However, we do not
assume the truth of contentions, deductions, or conclusions of fact or law.  (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank v. Kirwan.)

            In his form complaint, Sanders alleged that he entered
into a contract with AA and NA, and the three respondents.  Rather than setting
forth the essential terms of the alleged agreement in his complaint, Sanders
attached to his complaint a copy of a document he claims constitutes the
contract.  Sanders contends that this document is sufficient to support a cause
of action for breach of contract against respondents.  The document is an order
form on which Sanders placed his order for Mexican food items.  The top half of
the form shows the food items Sanders ordered at the food sale.  The bottom
portion of the order form includes a "Trust Account Withdrawal Order,"
in which Sanders requested that $21.50 be taken out of his account to pay for
the food items he ordered.

 

 

            Sanders makes a
number of arguments as to how and why the three individual respondents are
parties to the contract at issue.  Sanders first contends that the order form "clearly
shows the four statutory elements of a contract . . . ." 
However, the order form does not establish who, apart from Sanders himself, may
have been a party to any "contract."  The order form does not
indicate that any of the respondents were parties to any agreement contained in
the order form.

            Sanders seems to suggest that the individual
defendants' status as CSP employees makes them parties to the contract. 
However, there is no allegation in the complaint as to why respondents'
employment at the prison would make them parties to a contract that, on its
face, does not evidence that they were parties to it.  The document on which
Sanders relies to establish the existence of a contract between himself and the
three individual respondents does not sufficiently show that the respondents
were parties to a contract with Sanders.

            Sanders next asserts that the trust account withdrawal
order renders the three respondents parties to his agreement to purchase food. 
This argument is meritless.  The fact that Sanders's money is held in trust by
prison officials and that he must receive a prison administrator's approval
before he can withdraw funds from his account, does not make those prison
administrators parties to a contract between Sanders and a third party or parties. 
Sanders's request to withdraw money from his trust account, and the subsequent
approval of that request by a prison official, do not constitute a contract
between Sanders and any individual prison official.  Sanders does not allege
that any of the respondents offered to provide food in exchange for money, or
that they received other consideration in exchange for agreeing to provide the
food items to Sanders.  Rather, he simply alleges in a conclusory manner that respondents
are parties to the contract.  This is insufficient to state a claim for breach
of contract.

            Sanders further contends that the respondents
are "agents" of the state and the "food fund raiser [sic]." 
For this reason, he maintains, he does not have to show that the respondents
received any consideration.  In support of this argument, Sanders cites to
Civil Code section 2308, which states, "A consideration is not necessary
to make an authority, whether precedent or subsequent, binding upon the
principal."  This provision of the Civil Code, relates to the creation of
an agency relationship; it does not eliminate the need to allege the existence
of consideration when attempting to establish the formation of a contract.

            Sanders also argues in his briefing on appeal
that the respondents received consideration "in the form of a 10%
surcharge" which "was given directly to the Respondents as
administrators of the prison."  However, there is no allegation in the
complaint that any money "was given directly to the Respondents," nor
is there any allegation that respondents received money in exchange for the
food items Sanders ordered.  What is clear is that Sanders requested that
$21.50 be withdrawn from his prison trust account to pay for food items.  This
is insufficient to allege that the individual defendants received consideration
from Sanders.

            We do not assume the truth of contentions,
deductions, or conclusions of fact or law.  A conclusory allegation that the
individual defendants entered into a contract with Sanders that is not supported
by the document alleged to constitute the contract is insufficient to support a
cause of action for breach of contract.  (See Blank v. Kirwan, supra, 39
Cal.3d at p. 318 [court need not assume the truth of contentions, deductions,
or conclusions of fact or law].)

B.        Sanders
failed to allege facts sufficient to support a cause of action for

            concealment
against the respondents

 

            Sanders also challenges the trial court's
sustaining of the respondents' demurrer as to his cause of action for
concealment.  "[T]he elements of an action for fraud and deceit based on
concealment are:  (1) the defendant must have concealed or suppressed a
material fact, (2) the defendant must have been under a duty to disclose the
fact to the plaintiff, (3) the defendant must have intentionally concealed or
suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff
must have been unaware of the fact and would not have acted as he did if he had
known of the concealed or suppressed fact, and (5) as a result of the
concealment or suppression of the fact, the plaintiff must have sustained
damage."  (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992)
6 Cal.App.4th 603, 612-613.)

            Sanders alleges in his concealment claim that
the named defendants failed to inform him that the quality of the food being
offered for sale was not guaranteed, and that no refund would be provided if
the quality of the food was not satisfactory.  Sanders's claim of concealment
suffers from the same defect as does his cause of action for breach of
contract, i.e., he has not alleged facts sufficient to show that any of the
individual respondents personally concealed any facts related to the contract. 
Sanders's conclusory statement that the defendants concealed material facts
from him is insufficient to support his cause of action as to the individual
defendants, particularly in light of the fact that he failed to sufficiently
allege that these individuals were under any duty to disclose particular facts
to him.

C.        Sanders has waived his
argument challenging the trial court's ruling

            prohibiting him
from litigating the issues of the "certainty" of damages

            or "misjoinder"
of parties

 

            Sanders makes an argument captioned "Appellant
Is Denied Due Process and Equal Protection by the Trial Court[']s Grant of its
Own Motion to Preempt Appellant from Claiming 'Uncertainty' or 'Misjoinder' in
Any Future Litigation in this Complaint [sic]."^[5] 
The argument that follows this heading is somewhat convoluted, making it
difficult for us to address.  Sanders appears to challenge a portion of the
trial court's ruling that prohibits him from further litigating issues of "uncertainty"
and "misjoinder."  With regard to the issue of "uncertainty,"
Sanders seems to argue that he alleged contract damages with "reasonable
certainty" and that the trial court should not have considered those
damages to be uncertain.  In support of his contention that his alleged damages
were "reasonably certain," he claims that other inmates at the prison
have been told by prison officials that the prison will no longer conduct food
sales because of Sanders's legal action, and suggests that he should be
eligible to receive damages for emotional distress he claims to have suffered
as a result of this communication by prison personnel.  How this allegation relates
to whether Sanders stated damages with reasonable certainty, or might be able
to do so in the future, is unclear.^[6]

            Sanders's discussion regarding joinder is
similarly unclear.  He appears to argue that the trial court's ruling denied
him due process because
it prevented him from determining whether there might be other defendants.  It
is unclear whether Sanders is challenging this portion of the trial court's
ruling, or rather, the fact that in a previous ruling the court allowed Janda
and Sosa to join in the demurrer filed on behalf of Stuart Ryan.  Because
Sanders's argument as to these matters is largely unintelligible, we conclude
that he has waived this argument.  (See, e.g., Trinkle v. California State
Lottery (2003) 105 Cal.App.4th 1401, 1413 ["unless a party's brief
contains a legal argument with citation of authorities on the point made, the
court may treat it as waived and pass on it without consideration"].)

            We note, however, that although Sanders'
pleadings suffer from serious deficiencies, it appears undisputed that Sanders
paid $21.50 in exchange for certain food items that he did not receive.  Given
these basic facts, we would have hoped that the

administrators at CSP would
have resolved this matter in a manner satisfactory to Sanders such that he
would not have had to resort to filing a lawsuit in an attempt to get his money
back.

D.        The
trial court did not err in applying the vexatious litigant statute to Sanders

 

            1.         Sanders
may not relitigate his status as a vexatious litigant

 

            Sanders contends that the trial court erred in
determining that he is a vexatious litigant within the meaning of section 391,
subdivision (b)(1).  Section 391, subdivision (b)(1) provides in pertinent
part:

"'Vexatious 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."

 

According to Sanders, there
was "no evidence presented by the Respondents as to five 'adversly' [sic]
determined litigations in the last seven years . . . ." 
However, in making its finding, the trial court relied on an order issued in a
previous case in which the court found Sanders to be a vexatious litigant.  Specifically,
the trial court relied on "the July 21, 2004 Order of Judge Alan
Rosenfield of the Los Angeles County Superior Court at Lancaster, in the case
entitled Sanders v. Roe, [C]ase [N]umber MC013602," italics added.

            In appealing the trial court's finding in this
case, Sanders is essentially challenging the vexatious litigant finding of the
trial court in Sanders v. Roe (Superior Court, Los Angeles County,
2004, No. MC013602 (Sanders)).  Sanders asserts that he has brought only
three cases that meet the definitions provided in section 391, subdivision
(b)(1).  However, Sanders had the opportunity to litigate the issue whether he
had commenced at least five qualifying cases in the Sanders, supra, No.
MC013602 litigation.  The issue was determined against Sanders in that case. 
He is precluded by principles of collateral estoppel from relitigating those
issues now.  (See Stolz v. Bank of America National Trust and Savings
Association (1993) 15 Cal.App.4th 217, 222 (Stolz).)

            "Collateral estoppel applies if (1) the
issue decided in the prior case is identical with the one now presented; (2)
there was a final judgment on the merits in the prior case; and (3) the party
to be estopped was a party to the prior adjudication.  [Citations.]"  (Stolz,
supra, 15 Cal.App.4th at p. 222.)  "When principles of collateral
estoppel are sought to be used by one not a party to the prior adjudication, it
is appropriate to ask, also, whether application of the doctrine would be
unfair (e.g., the person to be estopped had lesser incentive to litigate the
issue in the prior proceeding, or the prior determination is itself
inconsistent with a previous judgment, or the person to be estopped operated
under different and less advantageous procedure[s] in the prior adjudication). 
[Citations.]"  (Ibid.)  

            The issue Sanders raises in this case, i.e.,
whether he meets the statutory definition of a vexatious litigant, is identical
to the issue the trial court addressed in Sanders, supra, No. MC013602. 
The court in Sanders considered the merits of the vexatious litigant
issue and ultimately concluded that Sanders met the definition of a vexatious
litigant as set forth in section 391.  Finally, there is no question that
Sanders was a party to the prior adjudication.  Thus, all of the elements
required for the application of collateral estoppel are present here. 

            Because the respondents were not parties to the
prior adjudication, we next consider whether application of the doctrine of
collateral estoppel to the issue of Sanders's status as a vexatious litigant
would be unfair.  We conclude that it would not.  Sanders had a significant
interest in litigating the issue in the prior proceeding since his status as a
vexatious litigant was at stake.  Upon being deemed a vexatious litigant, a plaintiff
may be limited in his ability to file new cases, in that he may be required to
obtain leave of court to do so, may have to post a bond, and/or may be required
to show that the litigation is not simply for delay or harassment.  (See §§
391.3, 391.7.)

            There is no basis to conclude that Sanders's
interest in litigating the issue of his vexatious litigant status in the prior
case was less than his interest in litigating that same issue in this case.  Thus,
applying the doctrine of collateral estoppel to prevent Sanders from
relitigating his status as a vexatious litigant would not be unfair.

            In a situation factually similar to the situation
in this case, the court in Stolz, supra, 15 Cal.App.4th at page 222,
applied the doctrine of collateral estoppel to prevent a plaintiff from
relitigating the issue of his status as a vexatious litigant.  A trial court in
a prior case had found Stolz to be a vexatious litigant within the meaning of
section 391, subdivision (b)(1) because he had filed at least six cases that
were either finally determined adversely to him, or unjustifiably permitted to
remain pending at least two years.  (Stolz, supra, 15 Cal.App.4th at p.
222.)  The defendant in Stolz sought to rely on the same six cases to
have Stolz held to be a vexatious litigant.  Stolz attempted to
challenge whether those cases were commenced, prosecuted or maintained in
propria persona and finally determined adversely to Stolz, or were unjustifiably
permitted to remain pending at least two years.  The appellate court concluded
that Stolz could not "challenge anew" the determinations of the trial
court in the previous case.  (Ibid.)

            Sanders suggests that the trial court's decision
to dismiss his case was the result of the court's erroneous determination that
the trial court in Sanders, supra, No. MC013602 had issued a prefiling
order limiting Sanders' ability to file new litigation.  Alternatively, Sanders
appears to complain that the prefiling order issued by the trial court in this
litigation was improper because the respondents failed to make a showing
pursuant to section 391.1 that there was no reasonable probability that Sanders
would prevail in the litigation against them.  Neither argument is persuasive.

            It is clear that the trial court considered the
respondents' demurrer on its merits, and that the court did not dismiss the
case on the basis of Sanders's status as a vexatious litigant, or on the basis
that Sanders had not met the requirements of a previous prefiling order.  After
reviewing Sanders's complaint and hearing argument from the parties, the court
concluded that Sanders failed to state a claim for breach of contract.  The
trial court also found that Sanders failed to allege facts sufficient to state
a claim for concealment.

            The trial court issued a prefiling order
pursuant to section 391.7, subdivision (a).  That section provides in pertinent
part:  "In addition to any other relief provided in this title, the court
may, on its own motion or the motion of any party, enter a prefiling order
which prohibits a vexatious litigant from filing any new litigation in the
courts of this state in propria persona without first obtaining leave of the
presiding judge of the court where the litigation is proposed to be filed." 
Section 391.7, by its terms, applies to "new" litigation, not the
pending litigation, and, unlike section 391.1, which allows the trial court to
stay the pending action, it does not require a showing that the plaintiff has
no reasonable probability of prevailing in the pending case.  Rather, an order entered
pursuant to section 391.7 requires the plaintiff to establish that the new
litigation has merit before the presiding judge will allow the new litigation
to go forward.  (See § 391.7.)  "When a prefiling order is in force, '[t]he
presiding judge shall permit the filing of such litigation only if it appears
that the litigation has merit and has not been filed for the purposes of
harassment or delay.  The presiding judge may condition the filing of the
litigation upon the furnishing of security for the benefit of the defendants as
provided in Section 391.3.'"  (McColm v. Westwood Park
Assn. (1998) 62 Cal.App.4th 1211, 1216, citing § 391.7, subd. (b).)  Thus,
the respondents did not have to make a showing, and the court did not have to
find, that Sanders had no reasonable probability of succeeding in the pending
litigation prior to the court entering a prefiling order under section 391.7.

            To the extent that Sanders is arguing that the
trial court improperly utilized the prefiling order requirements to prevent him
from continuing to litigate the underlying case subsequent to the trial court's
dismissal of the action, but prior to this appeal,^[7] we
conclude that Sanders has failed to establish any improper application of the
vexatious

litigant statute.  Sanders
complains, "The trial Court has utilized this provision [section 391.7,
subdivision (a)] to curtail litigation within the instant ongoing case. 
Requiring filings such as 'Request for
Default' and other motions within the ongoing litigation to be subject to
Code of Civil Procedure, [section 391.7,] sub[division] (c)."  (The
grammatical errors appear in the original.)  However, we cannot determine, on
this record, whether Sanders has attempted to file additional papers in the
underlying case that have been rejected as a result of the prefiling order
entered in this case.  It appears that the court heard at least one motion
Sanders filed after the court's ruling dismissing his case, which suggests that
the court has not prevented Sanders from continuing to litigate the pending
case.  The filing of additional motions in the trial court would likely be
improper, and would be rejected on grounds independent of Sanders's status as a
vexatious litigant. 

IV.

DISPOSITION

            The judgment of
the trial court is affirmed. 

 

                                                           

AARON, J.

 

WE CONCUR:

 

 

                                                           

                          McCONNELL,
P. J.

 

 

                                                           

                                   HUFFMAN,
J.

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