Devereaux v. Latham & Watkins, No. B076330

CourtCalifornia Court of Appeals
Writing for the CourtARLEIGH M. WOODS
Docket NumberNo. B076330
PartiesRobyn R. DEVEREAUX, Plaintiff and Appellant, v. LATHAM & WATKINS et al., Defendants and Respondents.
Decision Date06 March 1995

Page 849

38 Cal.Rptr.2d 849
32 Cal.App.4th 1571
Robyn R. DEVEREAUX, Plaintiff and Appellant,
v.
LATHAM & WATKINS et al., Defendants and Respondents.
No. B076330.
Court of Appeal, Second District, Division 4, California.
March 6, 1995.
Rehearing Denied March 24, 1995.
Review Denied June 1, 1995.

[32 Cal.App.4th 1577]

Page 852

Robyn R. Devereaux, in pro. per.

Latham & Watkins, William C. Bottger, Michael J. Bononi, Kathryn M. Dessayer, Eric J. Custer and Law Office of Michael J. Bononi and Michael J. Bononi, Los Angeles, for defendants and respondents.

[32 Cal.App.4th 1578] ARLEIGH M. WOODS, Presiding Justice.

Robyn R. Devereaux (appellant) appeals the dismissal of her action against Latham & Watkins et al. (collectively, respondent or the firm) for her failure to post security as required by Code of Civil Procedure section 391.3. 1

The instant appeal is only the latest installment in an acrimonious dispute between the law firm of Latham & Watkins and Robyn Devereaux, a one-time litigation paralegal employed by the firm. In their briefs, each side indulges in unnecessary and inflammatory characterizations of the other which we ignore. For our purposes, the salient facts are as follows:

From July 1987 to May 1989, appellant was employed by respondent as a litigation paralegal. After she had been terminated, respondent was sued for overbilling by American International Insurance Company of Puerto Rico, Inc. (AIICO) in connection with respondent's representation of AIICO in a case entitled In re San Juan Dupont Plaza Hotel Fire Litigation (the Fire Litigation). AIICO subpoenaed appellant who, by deposition, testified against respondent in the AIICO lawsuit. At that deposition, appellant produced certain documents which she had removed upon her termination from respondent's office, without permission. Respondent, in turn, produced portions of a felony criminal file of appellant which had been sealed by the superior court. Appellant's termination by the firm and the conduct of both parties at her AIICO deposition gave rise to a flurry of litigation.

In Latham & Watkins v. Robyn Devereaux, superior court case number C727627, which the parties refer to as the "Replevin action," the firm sought to recover documents removed from its premises by appellant. The court rendered judgment in respondent's favor, specifically finding that appellant had removed, without authorization, 157 of the firm's documents. In the course of the Replevin action, the trial court also granted respondent's motion for an order declaring appellant a vexatious litigant because "among other things, she failed to appear at seven of her own ex-parte motions and continued eleven others.... Within a recent one-week period, [Latham & Watkins'] counsel was required to appear at four noticed hearings, three of which did not take place because defendant Devereaux did not appear."

[32 Cal.App.4th 1579] In Robyn R. Devereaux v. Latham & Watkins and Michael Bruce Abelson, superior court case number BC018365, and Robyn R. Devereaux v. Latham & Watkins, a partnership, Does 1 through 10, inclusive, superior court case number C756772, a consolidated action, appellant sued respondent for wrongful termination and for sex and handicap discrimination. On the firm's motion, the trial court declared appellant a vexatious litigant and found that she did not have a reasonable probability of prevailing on any of her claims against respondent. Pursuant to Code of Civil Procedure section 391.1, it ordered her to furnish security in the amount of $35,000 to proceed with the litigation. Appellant filed petitions for writs of mandate and prohibition with the Court of Appeal

Page 853

seeking to vacate the order. Her petitions were summarily denied. When she failed to deposit the required security, her action was dismissed.

This brings us to the underlying suit in the instant appeal, a consolidation of two actions, Robyn R. Devereaux v. Latham & Watkins, A. Victor Antola, Milton Allen Miller, Jack Walker, Linda Sherwood, Ernest Getto, Kenneth Oder, Thomas L. Pfister and Does 1-200, inclusive, superior court case number BC042291, and Robyn R. Devereaux v. Michael John Bononi, Thomas L. Pfister, Milton Allen Miller, Lisa Jean Hansen, Joel E. Kirscher, John F. Walker, Linda Sherwood, Kenneth Oder, Latham & Watkins, and Does 1-200, inclusive, superior court case number BC042426.

In the first action, filed on May 15, 1991, appellant sought indemnity under Labor Code section 2802 (the Indemnity action) for expenses incurred by her in connection with her depositions in the Fire Litigation and AIICO actions. Labor Code section 2802 requires an employer to indemnify an employee for expenses and losses incurred in the discharging of the employee's duties. In addition to her cause of action under that statute, appellant also alleged causes of action for intentional and negligent infliction of emotional distress and punitive damages.

The second action, filed on January 22, 1993, sought injunctive relief and damages for respondent's allegedly intentional disclosure of appellant's private records and confidential information in violation of Welfare and Institutions Code section 5328 (the Injunction action). That statute limits disclosure of certain specified medical records generated in the course of particular kinds of services for psychiatric or other mental disorders.

Both actions arose from appellant's allegations that she "[blew] the whistle" on respondent firm for "withholding/destruction of evidence and insurance fraud and overbilling...." The expenses for which she sought indemnification in the Indemnity action were incurred by her as a result of having to testify in the AIICO action against respondent and in an earlier deposition in the underlying Fire Litigation. In the Injunction action, appellant sought to enjoin dissemination of documents which were allegedly illegally obtained and distributed by respondent "for the purpose of discrediting [appellant] as a defense to her 'whistleblowing' of their illegal destruction of documents subject to discovery in on-going litigation and their fraudulent overbilling of clients."

[32 Cal.App.4th 1580] On June 29, 1992, respondent filed a motion to require appellant to post security as a prerequisite to maintaining the Indemnity action under Code of Civil Procedure section 391.1. The basis of respondent's motion was that appellant had been declared a vexatious litigant in the Replevin action and that she had no reasonable probability of prevailing.

On September 8, 1992, respondent's motion to require appellant to furnish security was denied without prejudice.

On January 22, 1993, appellant filed the Injunction action, which consolidated by reference the earlier Indemnity action. 2

On March 2, 1993, respondent filed a second motion for an order requiring appellant to furnish security in the amount of $25,000. Respondent based the amount on its estimate of work already performed in the case, discovery propounded by appellant and the expenses incurred by the firm in the Replevin action.

On March 17, 1993, the trial court granted the motion requiring appellant to furnish security in the amount of $25,000 and gave her until March 29, 1993, to do so.

On March 29, 1993, appellant's motion for reconsideration of the order was denied. On April 29, 1993, after her failure to comply

Page 854

with the order to post security, her action was dismissed.

This appeal ensued. We affirm.

I

Code of Civil Procedure section 391 defines a vexatious litigant, inter alia, as "a person who ... [p] ... [p] [h]as previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence." (Code Civ.Proc., § 391, subd. (b)(4).) 3 In the instant case, the court below declared appellant a vexatious litigant because she had been previously declared one in the Replevin action. She now maintains [32 Cal.App.4th 1581] that the court erred because the Replevin action was not based on substantially similar facts as the consolidated Indemnity/Injunction action involved here. The argument is without merit.

Neither party, nor our own research, has disclosed a case that interprets the phrase "substantially similar" in subdivision (b)(4). It is an elementary rule of statutory interpretation, however, that "[w]here, as here, a word is not defined in a statute, its commonly accepted meaning applies. [Citation.]" (In re Jose A. (1992) 5 Cal.App.4th 697, 700, 7 Cal.Rptr.2d 44.) Black's Law Dictionary defines "substantially" in part as "Essentially ... in the main ... materially; in a substantial manner." (Black's Law Dict. (5th ed. 1979) p. 1281.) "Similar" is defined in part as "having a general likeness, although allowing for some degree of difference." (Id. at p. 1240.) Subdivision (b)(4) is satisfied, therefore, when the proceeding in which the party was declared a vexatious litigant, and the proceeding in which he or she is sought to be declared a vexatious litigant in reliance on the earlier proceeding, arise from essentially the same facts, transaction or occurrence. This can be determined by examination of the factual circumstances that underlie the two proceedings and the pleadings.

Applying this principle to the case at hand, we conclude that the Replevin action and the Indemnity/Injunction action are based on substantially similar facts. In the Replevin action, respondent successfully sought to recover documents taken from its premises by appellant. Her Indemnity action sought indemnification for the legal counsel whom she was instructed to bring to the AIICO deposition by the special master presiding over the deposition. The purpose of the order was to prevent her from inadvertently waiving her right against self-incrimination in connection with the documents she removed from respondent's office. In her Injunction...

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58 practice notes
  • Cassady v. Morgan, Lewis & Bockius Llp, No. B177747.
    • United States
    • California Court of Appeals
    • November 29, 2006
    ...of employment." (Jacobus v. Krambo Corp., supra, 78 Cal.App.4th at p. 1101, 93 Cal. Rptr.2d 425; Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1583, 38 Cal.Rptr.2d 849.) "In determining whether for purposes of indemnification an employee's acts were performed within the course a......
  • Wolfgram v. Wells Fargo Bank, No. C022370
    • United States
    • California Court of Appeals
    • February 27, 1997
    ...plaintiff on its legal theories, even if all the plaintiff's facts are credited." (Devereaux supra, 32 Cal.App.4th at pp. 1582-1583, 38 Cal.Rptr.2d 849.) 9 Such a suit is by definition not worthy and under settled rules of practice would ordinarily be disposed of by means of a demurrer, jud......
  • Takacs v. A.G. Edwards and Sons, Inc., No. 04 CV 1852 JAH (NLS).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • August 2, 2006
    ...unfair to include the loss as a cost of the employer's doing business.'" Id. at 1158, fn. 1, citing to Devereaux v. Latham & Watkins, 32 Cal.App.4th 1571, 1582, 38 Cal.Rptr.2d 849 (1995). Plaintiffs argue that, like O'Hara, Plaintiff Takacs' customers filed an arbitration proceeding against......
  • Freund v. Nycomed Amersham, No. 01-56491.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 22, 2003
    ...their legal defense costs when they are sued for actions arising out of their employment. See, e.g., Devereaux v. Latham & Watkins, 32 Cal.App.4th 1571, 1583, 38 Cal.Rptr.2d 849 (1995); Jacobus v. Krambo Corp., 78 Cal.App.4th 1096, 1100, 93 Cal.Rptr.2d 425 (2000). It does not require an emp......
  • Request a trial to view additional results
58 cases
  • Cassady v. Morgan, Lewis & Bockius Llp, No. B177747.
    • United States
    • California Court of Appeals
    • November 29, 2006
    ...of employment." (Jacobus v. Krambo Corp., supra, 78 Cal.App.4th at p. 1101, 93 Cal. Rptr.2d 425; Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1583, 38 Cal.Rptr.2d 849.) "In determining whether for purposes of indemnification an employee's acts were performed within the course a......
  • Wolfgram v. Wells Fargo Bank, No. C022370
    • United States
    • California Court of Appeals
    • February 27, 1997
    ...plaintiff on its legal theories, even if all the plaintiff's facts are credited." (Devereaux supra, 32 Cal.App.4th at pp. 1582-1583, 38 Cal.Rptr.2d 849.) 9 Such a suit is by definition not worthy and under settled rules of practice would ordinarily be disposed of by means of a demurrer, jud......
  • Takacs v. A.G. Edwards and Sons, Inc., No. 04 CV 1852 JAH (NLS).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • August 2, 2006
    ...unfair to include the loss as a cost of the employer's doing business.'" Id. at 1158, fn. 1, citing to Devereaux v. Latham & Watkins, 32 Cal.App.4th 1571, 1582, 38 Cal.Rptr.2d 849 (1995). Plaintiffs argue that, like O'Hara, Plaintiff Takacs' customers filed an arbitration proceeding against......
  • Freund v. Nycomed Amersham, No. 01-56491.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 22, 2003
    ...their legal defense costs when they are sued for actions arising out of their employment. See, e.g., Devereaux v. Latham & Watkins, 32 Cal.App.4th 1571, 1583, 38 Cal.Rptr.2d 849 (1995); Jacobus v. Krambo Corp., 78 Cal.App.4th 1096, 1100, 93 Cal.Rptr.2d 425 (2000). It does not require an emp......
  • Request a trial to view additional results

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