Coulombe v. Ventura Co.

Filed 5/22/08 Coulombe v. Ventura Co. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Plaintiff Jackie Lyn Coulombe appeals an order dismissing her tort action against defendants County of Ventura, County Supervisors John Flynn, Steve Bennett, Linda Parks, Judy Mikels and Kathy Long, and attorneys Dirk DeGenna and Alan Wisotsky, (defendants hereafter referred to in the singular as the County). We conclude, among other things, that the trial court did not abuse its discretion by finding Coulombe to be a vexatious litigant, by requiring her to furnish security and by dismissing her action when she failed to furnish security. We affirm.

FACTS

In 2004 Coulombe sued the County in propria persona (pro per) for damages alleging she was wrongfully arrested on a "bogus warrant." (Coulombe v. County of Ventura (Super. Ct. Ventura County, 2004, No. 229168).) In 2005 the superior court dismissed her action after sustaining a demurrer to her second amended complaint without leave to amend. Coulombe appealed. We affirmed and the remittitur issued on February 1, 2006.

In 2007 Coulombe filed another pro per action against the County, its Board of Supervisors, and its attorneys. (Coulombe v. County of Ventura (Super. Ct. Ventura County, 2007, No. 246957).) She alleged they "conspired . . . to contemplate a civil conspiracy to conceal and defeat [her] common law action for damages" in case No. Civ. 229168. She claimed that they filed a "frivolous pleading" in that action, that they raised "meritless contentions, frivolous argument, and 26 unwarranted defenses."

The County filed a motion to designate Coulombe as a vexatious litigant and requested the court to take judicial notice of the actions she filed against it. Also attached were copies of records of other unsuccessful pro per actions she had filed within the past seven years. These included the following:

A 2000 Coulombe lawsuit against the City of Oxnard (City) and various officials (Coulombe v. City of Oxnard (Super. Ct. Ventura County, 2000, No. 198287)) alleging negligence and false imprisonment. At trial the court found that Coulombe "did not articulate any coherent, cognizable misconduct by any of the defendants." It entered judgment against her. She appealed. In 2003 we affirmed, noting that Coulombe had failed to produce a reporter's transcript of the trial. (2d Civ. No. B154998, May 18, 2003.) She subsequently filed a notice of appeal in the United States District Court for the Central District of California stating she was appealing to the Ninth Circuit Court of Appeals "from: an appealable post-judgment order of the District Court of Appeal, Second Appellate District, Division Six." Our decision became final in 2003 with the issuance of the remittitur.

In 2003 Coulombe filed another action against the City for intentional infliction of emotional distress. (Coulombe v. City of Oxnard (Super. Ct. Ventura County, 2003, No. 217214).) The trial court sustained a demurrer without leave to amend. It found that "the issues presented here are identical with those in case CIV 198287." Coulombe appealed. We dismissed the appeal after she failed to file an opening brief. The remittitur issued on December 26, 2003.

In 2004 Coulombe unsuccessfully sued the California Unemployment Insurance Appeals Board (CUIAB) (Coulombe v. CUIAB (Super. Ct. Ventura County, 2004, No. 228165).) She appealed. In 2005 we affirmed. Coulombe also filed a writ of mandate against the CUIAB in this court which we denied in 2005.

In 2005 she filed a tort action against the City (Coulombe v. City of Oxnard (Super. Ct. Ventura County, 2005, No. 237298)) alleging that police officers injured her during an arrest. This action was dismissed after Coulombe failed to respond to discovery orders.

In 2005 Coulombe sued a service station (Coulombe v. J.B. Performance (Super. Ct. Ventura County, 2005, No. 233090)), but 10 days later she filed a voluntary dismissal of that action.

The County also claimed that Coulombe had filed several unsuccessful motions in the actions she filed. Brian Keighron, one of the County's attorneys, stated in a declaration that "[t]he lowest amount of fees charged" in defending prior actions by Coulombe against the City and the County was $10,719. He said, "I anticipate that the defense of the County . . . in the instant case will likely cost the City $10,000 or more and that a security in that amount is reasonable."

The trial court found Coulombe to be a vexatious litigant and prohibited her from filing new litigation in pro per in any state court "without first obtaining leave of the presiding judge." It ordered her to "furnish a security in the amount of $10,000 for [the County's] expenses and costs pursuant to Code of Civil Procedure Section 391.1." It stayed the action for 60 days to allow Coulombe "an adequate opportunity to furnish the ordered security." It advised her that if the security was not furnished within that time "this action shall be dismissed." Coulombe did not comply. The court dismissed the action.

DISCUSSION

I. The Vexatious Litigant Order

Coulombe contends the court erred by ruling that she was a vexatious litigant and by dismissing her action. We disagree.

A party to a civil action is a vexatious litigant if 1) he or she has within a seven year period "maintained in propria persona at least five litigations . . . that have been . . . finally determined adversely to" him or her; 2) he or she "repeatedly relitigates or attempts to relitigate, in propria persona" a final determination made against him or her; or 3) he or she has filed frivolous or unnecessary pleadings or motions. (Code Civ. Proc.,  391, subds. (b)(1), (2) & (3).) A vexatious litigant may be ordered to furnish security and if the litigant does not comply the action will be dismissed. (Code Civ. Proc., 391.1, 391.4.) "'Litigation' for purposes of vexatious litigant requirements encompasses civil trials and special proceedings, but it is broader than that. It includes proceedings initiated in the Courts of Appeal by notice of appeal or by writ petitions." (McColm v.Westwood Park Association (1998) 62 Cal.App.4th 1211, 1219.) It also includes actions that the litigant filed and voluntarily dismissed. (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779.)

"On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment." (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.) The appellant must demonstrate that the trial court abused its discretion. (Ibid.)

From the documents accompanying the County's motion the trial court could find that Coulombe filed at least five unsuccessful pro per "litigations" within seven years. (McColm v. Westwood Park Association, supra, 62 Cal.App.4th at p. 1219.) It could also reasonably infer that she attempted to relitigate her prior unsuccessful action against the County and had filed non-meritorious and unnecessary motions. Coulombe has not shown that the court abused its discretion by finding she was a vexatious litigant. But even aside from this order, the result would not change for another reason. In a separate appeal we recently affirmed an order in another action which declared Coulombe to be a vexatious litigant. (Coulombe v. City of Oxnard (May 2008, B202765 [non pub.].)

Coulombe claims the dismissal of her case was error. But the trial court ordered her to furnish security in the amount of $10,000. Coulombe has not shown that this amount was unreasonable. It was consistent with the litigation expenses incurred by the County in Coulombe's prior actions and with Keighron's projected cost for this case. Keighron's declaration constitutes substantial evidence to support the trial court's finding on the amount of the security. (Bravo v. Ismaj, supra, 99 Cal.App.4th at p. 219.) The court gave Coulombe 60 days to comply. It properly dismissed the case when she did not furnish security. (Code Civ. Proc.,  391.4.)

The County contends that dismissal was also proper because there was no possibility she could have prevailed because of the litigation privilege. We agree.

Coulombe alleged in her complaint that the County and its counsel had filed a "frivolous pleading" containing "meritless contentions" in her prior unsuccessful action against the County.

But except for a cause of action for malicious prosecution, defendants who prevailed in a prior case are immune from liability under the litigation privilege (Civ. Code,  47) for communications made in that litigation. (Silberg v.Anderson (1990) 50 Cal.3d 205, 215-216.) Coulombe did not state a cause of action for malicious prosecution. Her complaint includes many conclusory allegations, but specific facts must be alleged to state a cause of action. (Haskins v. San Diego County Dept. of Public Welfare (1980) 100 Cal.App.3d 961, 973.) Her claims about the County's liability for its positions and statements in its pleadings in a prior case fall within the litigation privilege. "The '[p]leadings and process in a case are generally viewed as privileged communications.' [Citation.]" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058.) "The privilege has been applied specifically in the context of abuse of process claims alleging the filing of false or perjurious testimony or declarations." (Ibid.) "It is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. [Citation.]" (Id., at p. 1057.) Moreover, Coulombe has not shown why her action would not be barred by the running of the statute of limitations.

We have reviewed Coulombe's remaining contentions and conclude she has not shown reversible error.

The judgment and order are affirmed. Costs on appeal are awarded in favor of the respondents.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Vincent J. O'Neill, Jr., Judge

Superior Court County of Ventura

______________________________

Jackie Lyn Coulombe, in pro. per., and for Plaintiff and Appellant.

Alan E. Wisotsky and Brian P. Keighron for Defendants and Respondents.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com