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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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. WestwoodPark 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.

^[1] Further statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[2] NA and AA did not join in the individuals' demurrer and are not parties to this appeal.

^[3] It appears that Sanders's appeal was taken from the order sustaining the demurrer, a nonappealable order. However, we treat the notice of appeal as a premature, but valid, notice of appeal from the subsequently entered judgment of dismissal. (See Cal. Rules of Court, rule 8.104(e).)

^[4] A trial court's decision to deny leave to amend after dismissal is reviewed for an abuse of discretion. (Schifando v. City of Los Angeles(2003) 31 Cal.4th 1074, 1081.) The plaintiff has the burden of proving that an amendment would cure the defect in the complaint. (Ibid.) Sanders does not argue that the trial court should have granted him leave to amend or that he could cure the defects in the complaint to sufficiently allege causes of action against the three individual defendants. We therefore do not address the issue of whether the court abused its discretion in dismissing Sanders's complaint without granting leave to amend.

^[5] The original heading had all letters capitalized.

^[6] Apart from the question whether Sanders's allegations of having suffered emotional distress are sufficient to make his contract damages reasonably certain, there is the additional problem that Sanders alleges that the emotional distress on which he relies to support his request for significant contract damages occurred after Sanders filed his complaint. Thus, this alleged emotional distress could not have been the subject of Sanders's dismissed complaint.

^[7] Appeals are considered "new litigation" for purposes of the vexatious litigant statute, and "the court will enforce the vexatious litigant statute by requiring the permission of the administrative presiding justice before a vexatious litigant subject to a prefiling order may proceed in this court." (McColm, supra, 62 Cal.App.4th at p. 1217.)