McColm v. Westwood Park Ass'n

• Decision Date: 03 April 1998
• Docket Number: No. A078680,A078680
• Citation: 62 Cal.App.4th 1211,73 Cal.Rptr.2d 288
• Parties: , 98 Cal. Daily Op. Serv. 2524, 98 Daily Journal D.A.R. 3419 Patricia A. McCOLM, Plaintiff and Appellant, v. WESTWOOD PARK ASSOCIATION, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 288

73 Cal.Rptr.2d 288

62 Cal.App.4th 1211, 98 Cal. Daily Op. Serv. 2524,

98 Daily Journal D.A.R. 3419

Patricia A. McCOLM, Plaintiff and Appellant, v. WESTWOOD PARK ASSOCIATION, Defendant and Respondent.

No. A078680.

Court of Appeal, First District, Division 4, California.

April 3, 1998.

Rehearing Denied April 3, 1998.

Review Denied April 29, 1998.

Patricia A. McColm in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

HANLON, Presiding Justice.

Patricia A. McColm has been found to be a vexatious litigant. We dismissed her appeal for failure to post a $1,000 undertaking, imposed as a condition to proceeding with the appeal. She seeks rehearing from our dismissal order. She argues that the vexatious litigant code sections do not apply to her situation because her appeal is not "new litigation" and her adversary, Westwood Park Association (Westwood), was never served as a "defendant" in the underlying action and could not benefit from an undertaking. She contends as well that, because this court has accepted her application to proceed in forma pauperis, it cannot require her to post a $1,000 undertaking, which she claims she cannot afford. She objects to this court requiring an undertaking without conducting an evidentiary hearing to determine its amount, and she raises several other issues.

McColm's contentions are unsound. Her application for rehearing is denied. In previously ruling on McColm's challenge to the undertaking, the Honorable Gary E. Strankman, Administrative Presiding Justice for the First Appellate District, explained to McColm in a written decision both how and why the vexatious litigant procedures apply to appeals and writ petitions. We agree completely with Justice Strankman's analysis. In the following six sections of this opinion, we reproduce his analysis, and we adopt it as our own with only minor editing. After those six sections, we answer additional claims made by McColm.

Decisional Law

In Stafford v. Russell (1962) 201 Cal.App.2d 719, 722, 20 Cal.Rptr. 112, the Second Appellate District suggested the Legislature take action to ease the burden imposed upon the courts by vexatious litigants. The Legislature responded by enacting Code of Civil Procedure sections 391-391.6, ¹ which Division Two of this Appellate District then upheld against a constitutional attack (Taliaferro v. Hoogs (1965) 236 Cal.App.2d 521, 46 Cal.Rptr. 147).

In the intervening years, appellate courts repeatedly have applied the vexatious litigant statute to trial court proceedings (see, e.g., Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 61 Cal.Rptr.2d 694; Tokerud v. CapitolBank Sacramento (1995) 38 Cal.App.4th 775, 45 Cal.Rptr.2d 345; Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 38 Cal.Rptr.2d 849; Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 35 Cal.Rptr.2d 93; Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 19 Cal.Rptr.2d 19; Banks v. State of California (1993) 14 Cal.App.4th 1147, 18 Cal.Rptr.2d 127; Camerado Ins. Agency, Inc. v. Superior Court (1993) 12 Cal.App.4th 838, 16 Cal.Rptr.2d 42; First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 261 Cal.Rptr. 116; Muller v. Tanner (1969) 2 Cal.App.3d 445, 82 Cal.Rptr. 738.) On other occasions the courts have applied the vexatious litigant statute to appeals and writ petitions filed in the Court of Appeal. (See, e.g., In re Shieh (1993) 17 Cal.App.4th 1154, 21 Cal.Rptr.2d 886; Andrisani v. Hoodack (1992) 9 Cal.App.4th 279, 11 Cal.Rptr.2d 511; In re Whitaker (1992) 6 Cal.App.4th 54, 8 Cal.Rptr.2d 249; In re Luckett (1991) 232 Cal.App.3d 107, 283 Cal.Rptr. 312.)

Although the appellate courts have not articulated their reasons for applying the statute to appellate writs and appeals, their willingness to do so stems from the statute's broad definitions for the terms "litigation," "plaintiff" and "defendant."

The Vexatious Litigant Statutes

The vexatious litigant statute authorizes a "defendant" to bring a motion to require a "plaintiff" to furnish security. Defendant must prove that the plaintiff is a "vexatious litigant" ² and that there is no reasonable probability that plaintiff will prevail in the litigation. (§ 391.1.) The statute contemplates a hearing to determine whether the plaintiff qualifies as "vexatious" (§ 391.2) and instructs the court to require security if it finds plaintiff has no reasonable probability of prevailing. Security is "for the benefit of the moving defendant" and in "such amount and within such time as the court shall fix." (§ 391.3.) If security is not furnished as ordered, the "litigation" shall be dismissed as to the "defendant for whose benefit it was ordered furnished." (§ 391.4.) While the motion is pending, if it is filed before trial, the litigation is stayed. Implicitly, the motion may also be filed after trial, in which case the "litigation" shall be stayed for such period as the court "shall determine" after denial of the motion or after furnishing security. (§ 391.6.)

The foregoing sections apply where the vexatious litigant question is raised in a pending proceeding. The court is required to determine both whether the person is a vexatious litigant and whether an undertaking should be required because it is not reasonably probable that plaintiff will prevail.

Section 391.7, added in 1990 (Stats.1990, ch. 621, § 3, pp. 3072-3073), ³ furnished the courts an additional resource for addressing vexatious litigant problems. This newer section operates beyond the pending case and affects the litigant's future filings. It authorizes a court to "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." (§ 391.7, subd. (a).)

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." (§ 391.7, subd. (b).) If the clerk mistakenly files any litigation presented by a litigant who is subject to a prefiling order, the litigant may be required to seek the presiding judge's permission to proceed. (§ 391.7, subd. (c).) The clerk of any court issuing a prefiling order is to provide a copy of such order to the Judicial Council, which maintains and disseminates annually a list of persons subject to such orders. (§ 391.7, subd. (d).) ⁴

McColm reads sections 391.1-391.7 in isolation and concludes, erroneously, that they apply only to plaintiffs and defendants in trial courts. Reading these sections with the definitions in section 391 shows that McColm's interpretation of the statute is wrong.

Throughout the vexatious litigant statute, "'Litigation' means any civil action or proceeding, commenced, maintained or pending in any state or federal court." (§ 391, subd. (a).) Manifestly, "any civil action or proceeding" includes any appeal or writ proceeding. Of course, "any state or federal court" includes the California Court of Appeal.

" 'Plaintiff' means the person who commences, institutes or maintains a litigation or causes it to be commenced, instituted or maintained, including an attorney at law acting in propria persona." (§ 391, subd. (d).) An appellant or writ petitioner certainly commences, institutes or attempts to maintain the litigation in this court.

"'Defendant' means a person (including corporation, association, partnership and firm or governmental entity) against whom a litigation is brought or maintained or sought to be brought or maintained." (§ 391, subd. (e).) Any respondent or real party in interest in this court is a person against whom litigation is brought or maintained.

Applying these broad definitions does not mean that this court will routinely reject proper attempts by vexatious litigants to appeal or to file writ petitions. It means only that 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. The decision whether to allow the litigant to proceed will be made on an individual basis, taking into account such factors as the nature of the action below, the nature of the lower court's ruling, whether writ petition or appeal is the appropriate procedure for seeking review in the Court of Appeal, the litigant's claims of error and whether the litigant has demonstrated improper reasons for bringing the original litigation or for taking it to the next court level.

Application of the Statute to McColm's Appeal

The San Francisco County Superior Court declared McColm a vexatious litigant subject to a prefiling order in an action against a different defendant. On December 29, 1997, McColm submitted an application to proceed with her appeal from dismissal of her action against Westwood. ⁵ She seeks in her proposed appeal to show that the superior court improperly dismissed the underlying civil action when McColm failed to appear for a hearing. She has explained in this court that her action against Westwood stems from the homeowner's association's allegedly operating with a suspended business license. She claims personal injury and fraud and complains about various actions taken by the association, including continuing to collect fees from homeowners while its operating status was in doubt.

On January 8, 1998, Justice Strankman, taking into consideration the factors mentioned above, signed an order permitting McColm to proceed with the appeal. The order conditioned this permission upon McColm's posting a vexatious litigant bond in the amount of $1,000...