Childs v. PaineWebber Incorporated

• Decision Date: 27 October 1994
• Docket Number: No. F018582,F018582
• Citation: 29 Cal.App.4th 982,35 Cal.Rptr.2d 93
• Court: California Court of Appeals Court of Appeals
• Parties: Juanita W. CHILDS, Plaintiff and Appellant, v. PAINEWEBBER INCORPORATED, Defendant and Respondent.

Page 93

35 Cal.Rptr.2d 93

29 Cal.App.4th 982

Juanita W. CHILDS, Plaintiff and Appellant, v. PAINEWEBBER INCORPORATED, Defendant and Respondent.

No. F018582.

Court of Appeal, Fifth District, California.

Oct. 27, 1994.

Certified for Partial Publication ^*.

Rehearing Denied Nov. 18, 1994.

Juanita W. Childs, in pro. per., for appellant

Judy Louie and Scott M. Ratchick, Los Angeles, for respondent.

OPINION

MARTIN, Acting Presiding Justice.

Investor appeals from an order declaring her to be a vexatious litigant (Code Civ.Proc., § 391 et seq.) and awarding sanctions in favor of defendant brokers. ¹

STATEMENT OF THE CASE

Procedural History of Case No. 217876:

On October 15, 1991, plaintiff filed a complaint for damages against defendant in Kern County Superior Court. Plaintiff alleged causes of action for breach of contract, breach of duty, breach of fiduciary duty, plus other causes of action, and prayed for $5 million in damages.

On November 21, 1991, defendant filed a demurrer (Code Civ.Proc., § 430.10, subds. (e), (f), (g)) to the complaint and prayed for dismissal with prejudice. On January 7, 1992, the court sustained the demurrer and granted plaintiff 20 days leave to amend.

On or about January 7, 1992, plaintiff moved for the transfer of her entire National Association of Securities Dealers (NASD) arbitration file (claim No. 91-00986) to the Kern County Superior Court.

On January 24, 1992, plaintiff filed an amended complaint, alleging defendant's "BREACH OF A CORPORATE OBLIGATION WITH THE PUBLIC." Defendant filed a demurrer to the amended complaint alleging, among other things,

"[t]he instant action is founded upon the identical allegations and facts that plaintiff has previously asserted in another lawsuit she filed in the U.S. District Court for the Eastern District of California, case No. CV-F-90-450 REC, as well as an arbitration claim filed with the National Association of Securities Dealers, Inc., case No. 91-00986. Both actions were dismissed by the respective forums. Therefore, the instant claim is barred by the doctrine of res judicata...."

On April 16, 1992, the Kern County Superior Court, after hearing, sustained the demurrer to the amended complaint without leave to amend.

On May 8, 1992, the superior court entered a formal order sustaining defendant's demurrer to plaintiff's amended complaint, and on May 12, 1992, plaintiff filed a notice of appeal from the order sustaining demurrer without leave to amend (our case No. F017864).

On August 17, 1992, October 7, 1992, and November 3, 1992, this court struck plaintiff's opening briefs on appeal for failure to conform to California Rules of Court, rules 13 and 15(a).

On December 10, 1992, we dismissed appeal No. F017864 "for (1) persistent, substantial noncompliance with the rules on appeal and court orders pointing out such noncompliance, and (2) failure to present an intelligible appellate argument. (See Berger v. Godden (1985) 163 Cal.App.3d 1113, 1118-1121, 210 Cal.Rptr. 109.)" Remittitur issued on February 9, 1993.

On March 25, 1993, this court denied defendant's motion to recall the remittitur.

Procedural History of Case No. 220662:

On June 22, 1990, plaintiff filed a complaint against defendant in the Maricopa-Taft Branch of South Kern Municipal Court. Plaintiff alleged causes of action for breach of contract, fraud and misrepresentation, and violations of blue sky laws, NASD rules, and Securities and Exchange Commission rules, among other things. Plaintiff filed an amended complaint for breach of written contract and intentional tort on May 8, 1992, and prayed for $5 million in damages. On May 18, 1992, the South Kern Municipal Court ordered transfer of this action to the Kern County Superior Court (Code Civ.Proc., § 116.8).

On June 5, 1992, the superior court ordered the instant case to be managed under the Special Rules of the Kern County Superior Court for the Administration of Civil Litigation (commonly known as "Fast Track").

On June 10, 1992, plaintiff filed a classification statement under the "Fast Track" rules, and on June 18, 1992, plaintiff filed a notice of hearing for amended written contract complaint filed June 22, 1990.

On July 1, 1992, defendant filed a demurrer and motions for sanctions and for an order determining vexatious litigation. Defendant alleged in relevant part:

"The instant case comes before this Court upon a transfer of the action from the South Kern Municipal Court. This action is identical in sum and substance to several previous actions filed by Childs both in this court as well as in the U.S. District Court for the Eastern District of California and in arbitration. In each of the previous actions, the Court or arbitrators have dismissed her claims. In fact, as recently as April 16, 1992, this very court sustained PaineWebber's demurrer in Case No. 217876, entitled Juanita W. Childs v. PaineWebber Incorporated, and dismissed the complaint without leave to amend. That case has been taken up on appeal by Childs. However, despite these court rulings, Childs continues to file new complaints and other various pleadings which do nothing more than waste everyone's time, efforts and other resources, including the Court's."

On July 2, 1992, the superior court took plaintiff's notice of hearing for amended written contract complaint off calendar because the motion failed to conform to the rules of court.

On July 14, 1992, the Kern County Clerk received three memoranda from plaintiff regarding "WHAT PAINEWEBBER INC. DOES TO PEOPLE WHO TRY & GET SOME JUSTICE AGAINST THE PWI [PaineWebber, Inc.] CRIMES, CAUSING MORE DESTRUCTION TO THE LIVES OF THOSE WHO THEY VIOLATE."

On August 12, 1992, the superior court, after a contested hearing, sustained defendant's demurrer to the amended complaint without leave to amend. The court also heard argument on defendant's motion for order determining vexatious litigation and took that matter under submission.

On August 13, 1992, plaintiff filed a "NOTICE FOR HEARING ON ... AMENDED FOUR[-]YEAR STATUTE OF LIMITATIONS WRITTEN CONTRACT CLAIM...."

On September 1, 1992, the superior court filed a minute order finding plaintiff to be a vexatious litigant (Code Civ.Proc., § 391, subd. (b)(2)). The court (1) ordered plaintiff to pay defendant $2,500 in sanctions; (2) forbade plaintiff from filing any further suits, motions, or actions against defendant in the California courts without first obtaining the permission of the presiding judge of the court in which the action or proceeding is to be filed; and (3) noted the presiding judge of any such court could require plaintiff to furnish security for the benefit of defendant (Code Civ.Proc., § 391.3).

On September 2, 1992, the court filed a formal order sustaining the demurrer without leave to amend and granting the motion for sanctions. The court noted the plaintiff's amended complaint was barred under the doctrine of res judicata, was barred pursuant to the statute of limitations governing contract claims, and was uncertain because it was vague and ambiguous.

On September 10, 1992, the court received plaintiff's lengthy letter challenging the order granting motion for sanctions.

On September 22, 1992, the superior court filed and entered a formal order determining vexatious litigation status and separately awarding $2,500 in sanctions.

On September 25, 1992, plaintiff filed a timely notice of appeal. ²

FACTS

Procedural Facts:

Absent an adequate recitation by plaintiff of the chronology of events in the instant case, the following facts are taken substantially verbatim from defendant's brief on appeal:

"Childs initiated five civil actions against PaineWebber, and in each case the sum and substance of the allegations were identical.

"Childs started her crusade on or about June 22, 1990 by filing a complaint in the South Kern Municipal Court, case No. CJ 2430, alleging fraud, misrepresentation, unsuitability of investments and breach of oral contract.... The complaint alleged, in sum, that PaineWebber failed to disclose material facts and recommended an unsuitable investment in preferred units of Mesa L.P.

"After having conversations with PaineWebber's counsel, during which Childs was presented with a copy of a signed client's agreement which mandates arbitration of all disputes between Childs and PaineWebber, Childs sent PaineWebber a letter informing PaineWebber that she was 'moving the claim to the United States Federal Courts.'...

"On July 17 1990, Childs filed a complaint in the U.S. District Court for the Eastern District of California, case No. CV-F-90 450 REC.... Childs asserted causes of action for violations of the Securities Act of 1933 and the Securities Exchange Act of 1934 and again specified allegations of fraud, misrepresentation, and unsuitability of investments.

"On August 26, 1990, PaineWebber filed a motion to compel arbitration in the federal court on the basis of the client's agreement signed by Child[s] which contained the mandatory arbitration provision. The federal court granted PaineWebber's motion and on September 28, 1990 ordered the case to arbitration.... Despite the federal court's order, Childs continued to generate and file massive pleadings with the federal court, often in excess of 100 to 300 pages....

"On or about March 13, 1991, Childs filed a Statement of Claim with the NASD, measuring in excess of 320 pages, alleging the same issues raised previously in the federal and state courts.... On August 21, 1991, PaineWebber moved to dismiss the claim before the NASD on the grounds that the claims were barred by statutes of limitations. This motion was granted by the NASD by order dated December 9, 1991....

"Even while the matter was still pending before the NASD, Childs filed another lawsuit in the Kern County Superior Court on October 24, 1991, case No. 217876, alleging breach of contract and reiterating the identical facts which formed the basis for each of her previous...