Taliaferro v. Hoogs

• Decision Date: 16 August 1965
• Citation: 236 Cal.App.2d 521,46 Cal.Rptr. 147
• Court: California Court of Appeals Court of Appeals
• Parties: E. A. TALIAFERRO, Cross-Complainant and Appellant, v. William H. HOOGS, Cross-Defendant and Respondent. Civ. 22218.

Page 147

46 Cal.Rptr. 147

236 Cal.App.2d 521

E. A. TALIAFERRO, Cross-Complainant and Appellant, v. William H. HOOGS, Cross-Defendant and Respondent.

Civ. 22218.

District Court of Appeal, First District, Division 2, California.

Aug. 16, 1965.

Eugene A. Taliaferro, in pro. per.

Frisbie & Hoogs, Berkeley, for respondent.

TAYLOR, Justice.

This is an appeal by Eugene A. Taliaferro from a judgment dated March 17, 1964, dismissing his cross-complaint as to respondent Hoogs. The dismissal was based on appellant's failure to provide security pursuant to the so-called vexatious litigant statute (Title 3A, §§ 391-391.6, Code Civ.Proc.). In this case of first impression, appellant argues that the judgment of dismissal must be reversed because: (1) the statute adopted in 1963 (Stats.1963, ch. 1471, § 1) is unconstitutional, and (2) even if constitutional, there was no evidence that he was a vexatious litigant as defined by the statute.

This is another episode in what was denominated in Taliaferro v. Riddle, 182 Cal.App.2d 235, 236, 5 Cal.Rptr. 874, as '[t]he litigious history of appellant's disputes with his former wife,' Dorothy Davis, who divorced him in 1944. This particular episode is one of the series related to Mrs. Davis' attempt to recover moneys accrued and unpaid pursuant to the provisions of the property settlement agreement ¹ and relates in particular to the Hardison funds. The facts are not in dispute. The action was originally filed in the municipal court by plaintiff Landisman who held $360 belonging to Mrs. Hardison and interpleaded appellant and his former wife, alleging that each claimed the Hardison money. The cross-complaint filed June 20, 1961, named as cross-defendants Mrs. Hardison, ² appellant's former wife, and her attorney of record, respondent Hoogs, and sought extensive damages occasioned by the alleged conspiracy of the cross-defendants to withhold sums due to appellant from Mrs. Hardison. Thereafter, on August 9, 1961, the matter (municipal court No. 16836) was transferred to the superior court (superior court No. 82821).

Title 3A of the Code of Civil Procedure, sections 391-391.6 relating to vexatious litigants provides as follows:

Section 391: 'As used in this title, the following terms have the following meanings:

'(a) 'Litigation' means any civil action or proceeding, commenced, maintained or pending in any court of this State.

'(b) 'Vexatious litigant' means any person:

'(1) 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 him; or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing; or

'(2) Who, after a litigation has been finally determined against him, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of such determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by such final determination against the same defendant or defendants as to whom the litigation was finally determined.

'(c) 'Security' means cash, undertaking by a surety, or other security, of such nature and in such amount as may be fixed by the court, to assure payment, to the party for whose benefit such security is required to be furnished, of such party's reasonable expenses, including attorney's fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.

'(d) 'Plaintiff' means the person who commences, institutes or maintains a litigation or causes it to be commenced, instituted or maintained.

'(e) 'Defendant' means a person (including corporation, association, partnership and firm) against whom a litigation is brought or maintained or sought to be brought or maintained.'

Section 391.1: 'In any litigation, at any time within 30 days after service of summons or other and equivalent process upon him, 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.'

Section 391.2: 'At the hearing upon such motion the court shall consider such evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion. No determination made by the court in determining or ruling upon the motion shall be or be deemed to be a determination of any issue in the litigation or of the merits thereof.'

Section 391.3: 'If, 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 he will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of such moving defendant, security of such nature, in such amount, and within such time, as the court shall fix. The amount of such security may thereafter from time to time be increased or decreased in the court's discretion upon a showing that the security provided has or may become inadequate or excessive.'

Section 391.4: 'When security that has been ordered furnished is not furnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished.'

Section 391.5: 'Upon the termination of the litigation the defendant shall have recourse to the security in such amount as the court shall determine.'

Section 391.6: 'When a motion pursuant to Section 391.1 is filed the litigation is stayed, and the moving defendant need not plead, until 10 days after the motion shall have been denied, or if granted, until 10 days after the required security has been furnished and the moving defendant given written notice thereof.'

Respondent's affidavits in support of his motion (Code Civ.Proc., § 391.1) filed on October 23, 1963, alleged that all of the matters raised by appellant's cross-complaint had already been determined in the many prior actions between the parties as listed and further alleged that because of the many actions (both past and pending), considerable research respecting the concluded and pending actions would be necessary, and requested that appellant be required to make a security deposit of at least $750. On December 30, 1963, after hearing, the court found appellant to be a vexatious litigant and ordered him to furnish security of $500 cash or a $1,000 personal surety undertaking by January 17, 1964 (Code Civ.Proc., §§ 391.2, 391.3). Appellant did not comply with any part of the order for security or file any counter-affidavit, and after a hearing the motion to dismiss was granted on March 17, 1964, pursuant to section 391.4, quoted above.

Appellant contends that the vexatious litigant statute is unconstitutional on several grounds. Preliminarily, we note that we must approach this question with all of the usual presumptions and intendments in favor of constitutionality (Patton v. La Bree, 60 Cal.2d 606, 35 Cal.Rptr. 622, 387 P.2d 398). All doubts must be resolved in favor of the statute (Jorgensen v. Cranston, 211 Cal.App.2d 292, 27 Cal.Rptr. 297).

The vexatious litigant statute was enacted at the suggestion of the State Bar following a suggestion of the District Court of Appeal in Stafford v. Russell, 201 Cal.App.2d 719, 20 Cal.Rptr. 112; 38 State Bar J., 489; 38 State Bar J., 663, 664. The statute is patterned after section 834 of the Corporations Code which provides, so far as relevant, that within 30 days after service of summons in a stockholder's derivative suit, the corporation or any defendant may move the court for an order, upon notice and hearing, requiring the plaintiff to furnish security for attorney fees and litigation expenses on the ground that there is no reasonable probability that the prosecution of the cause of action against the moving party will benefit the corporation or its security holders. The Corporations Code provisions for hearing and determination by the court of the amount of security required are similar to sections 391.1-391.3 of the Code of Civil Procedure and section 834, subdivision (b), of the Corporations Code is identical in language to section 391.2 of the Code of Civil Procedure in stating that a determination as to the furnishing of security is not a determination of the merits of any issue in the action.

The constitutionality of section 834 of the Corporations Code was challenged in Beyerbach v. Juno Oil Co., 42 Cal.2d 11, 265 P.2d 1, on grounds of the equal protection clause of the federal Constitution (Amend. XIV, § 1) and the provisions of the state Constitution against special laws (art. IV, § 25) and special privileges and immunities (art. I, § 21). ³ The Supreme Court, in ruling the statute constitutional, relied on Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528. The Cohen case upheld the constitutionality of a similar New Jersey statute, and held that the New Jersey statute applied to a non-federally based cause of action in the federal courts, even though Rule 23 of the Federal Rules of Civil Procedure made no security requirement for stockholder's derivative actions (Neuwirth v. Namm-Loeser's, Inc., 161 F.Supp. 828, U.S.D.C., New York 1958). In Cohen, 337 U.S. at page 550, 69 S.Ct. at page 1227, the court noted that a state has plenary power over shareholder litigation as the corporation is a creature of the state. Likewise, here, a state has the plenary power to provide the terms on which it will...