Filed 8/30/18 Meniooh v. Superior Court CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Plaintiff purports to appeal from the order declaring him to be a vexatious litigant. That order is not directly appealable, but as an interlocutory order may be reviewed if a timely appeal is taken from a subsequent order or judgment of dismissal. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635.) “No judgment or order of dismissal was entered in the instant case. However, in the interest of justice and to prevent unnecessary delay, a reviewing court may deem the order appealed from as incorporating a judgment of dismissal and treat the notice as applying to that dismissal.” (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 988, fn. 2.) Given that both parties treat the appeal as properly before us and have briefed the merits, we will modify the order to make it an appealable order of dismissal.

Section 391 of the Code of Civil Procedure has various definitions of what constitutes a vexatious litigant. The definition in subdivision (b)(1) is the one at issue here: “ ‘Vexatious litigant’ means a person who does any of the following: [¶] . . . In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations which are other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.”

Code of Civil Procedure section 391, subdivision (a) defines “Litigation” as “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” It has been judicially construed to include “an appeal or civil writ proceeding filed in an appellate court,” even if the appeal or writ proceeding terminates with a dismissal that is not on the merits of the litigation. (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406.)

“ ‘A court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] We uphold the court’s ruling if it is supported by substantial evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is correct . . . .’ ” (Garcia v. Lacey, supra, 231 Cal.App.4th at p. 407.) This presumption is the most fundamental principle of appellate procedure, and in practice it puts the burden on plaintiff to overcome the presumption by demonstrating that the trial court committed reversible error. (E.g., Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Plaintiff makes no genuine effort to do so.

According to his brief, “The allegations in defendants moving paper presumed seven instead of five cases that adversely affected appellant. The Judge presumed appellant is vexatious litigant from the seven cases presented by defendant. The motion is without sufficient evidence and discovery of the result of appellant seven cases that defendants has presume adversely effected appellant. The facts presented through illustrated slender and deformation [sic]. The rebuttal by the judge acting as an attorney, instead of the defendant attorney which shows the courts bias and prejudice.”

Apart from simply asserting that the trial court miscounted the number of failed litigations plaintiff musters no supporting detail, such as dates, case names, or ultimate dispositions. By contrast, defendant does just that in its brief, showing eight litigations that seemingly qualify under Code of Civil Procedure section 391 provisions. Plaintiff insists defendant “failed to meet their burden of proving that appellant was a vexatious litigate” and “defendants allegations is not supported by substantial evidence.” To demonstrate that the trial court committed reversible error, it is plaintiff’s burden to demonstrate that the trial court’s ruling, not the “allegations” of defendant’s motion, are not supported by substantial evidence. And to do that he is required to present a summary of all the evidence in the record material to the issue. (E.g., Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) He has not done so.

Plaintiff contends the trial court “did not interpret CCP 391 correctly” and “rul[ed] in a capricious, unsupported and illogical manner,” and that each of these errors “effected the outcome of the hearing,” but the only substantiation offered is the claim of judicial bias. The reporter’s transcript of the hearing provides no basis for any of these charges. It is true that late in the hearing the court did appear to admit that “it does sound discriminatory” to label plaintiff a vexatious litigant, but the court immediately made it clear “it’s not really discrimination. [¶] [Y]ou got yourself into this because of [your] past history” of initiating meritless litigations. Unlike plaintiff, we do not treat the court’s isolated comment as a confession of bias.

The “Prefiling Order—Vexatious Litigant” filed November 18, 2016, is amended by adding a paragraph dismissing the complaint. As so modified, the order is affirmed. Defendant shall recover its costs on appeal.

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Kline, P.J.

We concur:

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Stewart, J.

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Miller, J.

Meniooh v. Superior Court of California, County of Humboldt (A150252)