MURPHY v. NO. 11 HIGH STREET CONDO ASSN.

No. A142955.

THERESA LYNNE MURPHY, Plaintiff and Appellant, v. NO. 11 HIGH STREET CONDOMINIUM ASSOCIATION et al., Defendants and Respondents.

Court of Appeals of California, First District, Division Three.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

JENKINS, J.

Plaintiff Theresa Lynne Murphy appeals, by permission of this court, from an order, filed on July 8, 2014, declaring her to be a vexatious litigant (Code Civ. Proc., § 391, subd. (b)1), and ordering that she post an undertaking in the amount of $10,000.2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Murphy is the fee simple title owner of an apartment unit in No. 11 High Street condominium. On February 10, 2014, she filed a first amended complaint against named defendants No. 11 High Street Condominium Association and members of its board of directors, including defendant Ryan Raley.3

On March 14, 2014, Raley filed a motion for an order declaring Murphy to be a vexatious litigant pursuant to section 391, asking the court to require her to furnish security in the sum of $10,000 for reasonable costs, and prohibiting her from filing any new litigation in propria persona, or otherwise filing and serving any papers that may contain private information, without prior leave of the Presiding Judge of the superior court. Murphy opposed the motion. The court granted the motion, stating in its written order: "IT IS ORDERED THAT: [¶] Defendant Ryan Raley's motion be granted. Theresa Murphy is deemed a vexatious litigant for purpose of Code of Civil Procedure section 391(b). All future civil actions by Theresa Murphy will require an undertaking be posted in the amount of $10,000.00." This appeal ensued.4

DISCUSSION

I. Law Regarding Vexatious Litigant

"The vexatious litigant statutes (§§ 391-391.7) are designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants. [Citation.]" (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169 (Shalant).) The vexatious litigant statutes provide, in pertinent part, that "`[l]igitation' means any civil action or proceeding, commenced, maintained or pending in any state or federal court;" and "`[v]exatious litigant' means a person who . . . [i]n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been . . . finally determined adversely to the person." (§ 391, subds. (a),(b)(1).) "Section 391.1 provides that in any litigation pending in a California court, the defendant may move for an order requiring the plaintiff to furnish security on the ground the plaintiff is a vexatious litigant and has no reasonable probability of prevailing against the moving defendant. The action is stayed pending determination of the motion. (§ 391.6.) If, after a hearing, the court finds for the defendant on these points, it must order the plaintiff to furnish security `in such amount and within such time as the court shall fix.' (§ 391.3.) The plaintiff's failure to furnish that security is grounds for dismissal. (§ 391.4.)" (Shalant, supra, at pp. 1169-1170.)

II. Standard of Review

We note at the outset, Murphy asks us to "look at [the] issues from the beginning as if the [s]uperior [c]ourt had never ruled on" the motion, and, exercise our independent judgment based on a review of the evidence in the record. We decline to do so as we are bound to decide the appeal applying the governing standards provided under case law. Thus, on appeal of an order that a plaintiff is a vexatious litigant, we must presume the order is correct and imply findings necessary to support it. (Bravo v Ismaj (2002) 99 Cal.App.4th 211, 219.) Additionally, "we will affirm [an order] correct on any legal basis, even if that basis was not invoked by the [superior] court. [Citation.] There can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct. [Citation.]" (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 269.)5

III. Analysis

Here, the record shows that within the seven years preceding the vexatious litigant motion filed in 2014, Murphy commenced at least five litigations other than litigation in a small claims court that were finally determined adversely to her.6 (§ 391, subd. (a), (b)(1)):

(1) On October 9, 2008, Murphy, in propria persona, sued No. 11 High Street Condominium Association and its former and then current president, for breach of contract, intentional interference with contractual relations, intentional infliction of emotional distress, and breach of duty, in Case No. CGC-08-480774. On June 8, 2009, this entire action against all parties and with regard to all causes of actions was dismissed without prejudice. (2) On December 3, 2012, Murphy, in propria persona, sued defendants William S. Coleman, CEO, and PRO30 Funding, and its successors and/or assigns, to remove a cloud on title, to quiet title, and cancel void written instruments, in Case No. CGC-12-526541. On May 30, 2013, this entire action against all parties and with regard to all causes of action was dismissed without prejudice. (3) On April 15, 2013, Murphy, in propria persona, sued No. 11 High Street Condominium Association and members of its board of directors, for breach of fiduciary duty, negligence, infliction of emotional distress, seeking injunctive relief and general and punitive damages, in Case No. CGC 13-530617. On June 10, 2013, this entire action against all parties and with regard to all causes of action was dismissed without prejudice. (4) On May 29, 2013, Murphy, in propria persona, filed a complaint in the United States District Court for the Northern District of California in Case No. 13-cv-02424-JST, alleging state-law claims arising out of foreclosure proceedings on her condominium unit. Murphy moved for a preliminary injunction barring certain named defendants from conducting a trustee's sale with respect to the property. On June 13, 2013, the court determined it lacked subject matter jurisdiction because complete diversity of citizenship among the parties did not exist. Accordingly, the action was dismissed without prejudice for lack of subject matter jurisdiction, and the temporary restraining order issued by the court on May 31, 2013, and all deadlines and hearings in the case were vacated. The court noted Murphy could re-file her claims in state court. (5) On June 14, 2013, Murphy, in propria persona, filed a complaint in the United States District Court for the Northern District of California in Case No. 13-cv-02752-JST, alleging state-law claims arising out of foreclosure proceedings on her condominium unit. She moved for a temporary restraining order barring certain named defendants from recording a notice of trustee's sale. On June 15, 2013, the court determined it lacked subject matter jurisdiction because complete diversity of citizenship among indispensable parties did not exist, and there was no other existing basis for subject matter jurisdiction. Accordingly, the action was dismissed for lack of subject matter jurisdiction, and all pending motions and deadlines were terminated. The court noted Murphy could re-file her claims in state court.7

We find no merit to Murphy's overarching argument that for the purpose of invoking the vexatious litigant statute the five described litigations were not finally determined adversely to her because they were dismissed without prejudice. Within the context of making a vexatious litigant determination, a lawsuit commenced by plaintiff and later dismissed with or without prejudice is prima facie proof that the litigation has been finally determined adversely to plaintiff. (See Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779, 780, fn. 3 (Tokerud).) As explained by the Tokerud court, "Plaintiff's contention a voluntarily dismissed action cannot be counted for purposes of the vexatious litigant statute is contrary to the underlying intent of that legislation. `The vexatious litigant statutes were enacted to require a person found a vexatious litigant to put up security for the reasonable expenses of a defendant who becomes the target of one of these obsessive and persistent litigants whose conduct can cause serious financial results to the unfortunate object of his attack.' [Citation.] . . . [Also,] [b]y clogging court calendars, [the constant suer] causes real detriment to those who have legitimate controversies to be determined and to the taxpayers who must provide the courts.' [Citation.] [¶] An action which is ultimately dismissed by the plaintiff, with or without prejudice, is nevertheless a burden on the target of the litigation and the judicial system, albeit less of a burden than if the matter had proceeded to trial. A party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the action through to completion. The difference is one of degree, not kind." (Id. at p. 779.)

Murphy also argues the superior court should have accepted her reasons for dismissing the three described state court actions without prejudice. However, the court was not required to accept Murphy's explanations for the dismissals. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 635 ["[w]hen considering a motion to declare a litigant vexatious under section 391.1," the court "does not assume" the truth of a [purported vexatious] litigant's factual allegations"]; Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028 [trier of fact "is not required to believe the testimony of any witness, even if uncontradicted"].) In all events, as an appellate court, we must accept as true all of the evidence in favor of the court's order and discard any unfavorable evidence. (Giles v. Horn (2002) 100 Cal.App.4th 206, 220.) Accordingly, we conclude the superior court could rely on the three described state court actions to find Murphy a vexatious litigant.

As to the two described federal court actions that were dismissed for lack of subject matter jurisdiction, Murphy additionally contends those litigations were not finally determined adversely to her because "[i]t is impossible for a court without jurisdiction to render a final determination." We disagree. Generally, a trial court that lacks subject matter jurisdiction "`has no power "to hear or determine [the] case."' [Citations.]" (Barry v. State Bar of California (2017) 2 Cal.5th 318, 324.) "But a court that lacks the power to answer one type of question in a case may nonetheless have the power to answer another type of question. [Thus,] [i]t is, for example, a truism that `[a] court has jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and it must have authority to decide that question in the first instance.' [Citations.]" (Id. at p. 326; see Lane v. United States (1st Cir. 1984) 727 F.2d 18, 21 ["every federal court has the inherent power to determine as a preliminary matter its own subject matter jurisdiction"].) Accordingly, the federal court had the inherent authority and obligation to address whether it had subject matter jurisdiction over the claims in Case No. 13-cv-02424-JST and Case No. 13-cv-02752-JST. More significantly, the two federal court actions that were involuntarily dismissed for lack of subject matter jurisdiction placed no less a "burden" on the target to the litigation and the judicial system than the three state court actions that were voluntarily dismissed. (Tokerud, supra, 38 Cal.App.4th at p. 779.) By commencing two lawsuits, which the federal court was required to dismiss for lack of subject matter jurisdiction, Murphy "`essentially . . . waste[d] [the] time and resources'" of the named defendants and the federal court. (Navarro Sav. Assn. v. Lee (1980) 446 U.S. 458, 464, fn. 13, quoting from Currie, The Federal Courts and the American Law Institute, Part I, 36 U. Chi. L. Rev. 1 (1968).) Accordingly, we conclude the superior court could rely on the two described federal court actions to find Murphy a vexatious litigant.

Murphy also contends that any reliance on the federal court action in Case No. 13-cv-02424-JST is misplaced because prior to dismissal of that action the court issued a temporary restraining order in her favor on May 31, 2013. However, "[t]he [United States] Supreme Court has long instructed that judgments in excess of subject-matter jurisdiction `are not voidable, but simply void.' [Citations] Under this traditional rule, `[w]hen a federal court reaches beyond its statutory grant of subject-matter jurisdiction, its judgment is void.' [Citation.]" (Bell Helicopter Textron, Inc. v. Islamic Republic of Iran (D.C. Cir. 2013) 734 F.3d 1175, 1180.) Thus, even if there "existed an `arguable basis' for jurisdiction" at the time the federal court issued the temporary restraining order, its later decision that it lacked subject matter jurisdiction rendered the order void, and required the court to vacate the order and dismiss the action. (Id. at p. 1181.) Accordingly, we conclude the superior court did not err when it relied on Case No. 13-cv-02424-JST to find Murphy a vexatious litigant as that litigation was finally determined adversely to her. (See Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406-407, citing to Tokerud, supra, 38 Cal.App.4th at p. 779; In re Whitaker (1992) 6 Cal.App.4th 54, 56.)

Lastly, we reject Murphy's contentions that reversal or modification of the superior court's order is otherwise warranted based on arguments concerning the probability of her prevailing on her current litigation against Raley, the amount of security to be posted by her, and the conduct of Raley's counsel in the superior court. Initially we note these arguments are not supported by citations to relevant portions of the record on appeal. (See Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557; see also Cal. Rules of Court, rule 8.204(a)(1)(C) [each brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].)8 "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived. [Citation.]" (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)9 In all events, even if we considered the arguments, Murphy, as she acknowledges, had the obligation to show that any errors were "prejudicial (Code Civ. Proc., § 475) and resulted in a `miscarriage of justice' (Cal. Const., art. VI, § 13.) [Citation.] `"[A] `miscarriage of justice' should be declared only when the court, `after an examination of the entire cause, including the evidence,' is of the `opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."' [Citation.]" (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) Despite Murphy's contentions to the contrary, we conclude she has failed to demonstrate prejudicial error requiring reversal or modification of the superior court's order.

DISPOSITION

The order filed on July 8, 2014, is affirmed. Each party shall bear their own costs on appeal.

McGuiness, P. J. and Siggins, J., concurs.

FootNotes


1. All further unspecified statutory references are to the Code of Civil Procedure.
2. Murphy contends the order under review is directly appealable, under California Rules of Court rule 8.104(e) [formerly 8.104(f)], and, as an exception to the one final judgment rule because it is a "collateral" order directing the performance of an act or the payment of money. However, California Rules of Court rule 8.104(e) allows for an appeal from an order only if the order "is an appealable order." "An order requiring a plaintiff to furnish security as a vexatious litigant is not appealable. If plaintiff fails to furnish the security as ordered, the action will be dismissed ([§ 391.4]) and the appeal will lie from the judgment or order of dismissal. [Citation.]" (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 985, fn. 1 (Childs).) Nonetheless, in the absence of any showing of prejudice, we shall "invoke [our] `saving' power to entertain [this] appeal taken from such an order by construing the appeal as taken from [a] judgment or order of dismissal. [Citation.]" (Ibid.)
3. Murphy did not request that the clerk's transcript include the first amended complaint.
4. Following the filing of this appeal, Murphy filed two additional motions in this court: (1) a motion "to vacate pre filing order and remove plaintiff from judicial council vexatious litiga[nt] list," and (2) a motion "for disqualification of judge of court of record" in the superior court under sections 170.1 and 170.6. We deferred ruling on the motions to this time. We now deny the motions without prejudice to Murphy filing them in the superior court in the first instance. (See § 170.3, subd. (c), 170.6, subd. (a)(2) [motion to disqualify superior court judge]; 391.8, subd. (a) [motion to vacate prefiling order and remove name from Judicial Council's list of vexatious litigants subject to prefiling orders].)

We recognize that "`notwithstanding the exclusive-remedy provision of . . . section 170.3 [disqualification of judge], "a [party] may assert on appeal a claim of denial of the due process right to an impartial judge." [Citation.]' [Citation.] `The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases.' [Citation.]" (Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 673.) Murphy contends the oral proceedings in the superior court demonstrate that the superior court judge and opposing counsel engaged in an "unlawful ex-parte communication," and the superior court otherwise violated her right to due process. However, we cannot evaluate her contentions because she elected to perfect her appeal without a record of the oral proceedings in the superior court. In designating the record, Murphy explicitly acknowledged that she understood we would "not be able to consider what was said during those proceedings in determining whether an error was made in the superior court proceedings."

5. Consequently, we do not address Murphy's contentions that the superior court's tentative ruling "misquoted the law" or constituted "a mistake of law." On appeal, "we disregard the court's tentative ruling," and "consider only the court's final order on the motion. That order, on its face, constitutes a full and final adjudication of" the motion to declare Murphy a vexatious litigant. (Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 300-301; see id. at p. 300 ["tentative ruling is not binding on the court;" "the court's final order supersedes the tentative ruling"].) Additionally, as we have noted, we do not have a sufficient record to address Murphy's contentions regarding the superior court's statements purportedly made during the oral proceedings on the motion to declare Murphy a vexatious litigant.
6. In light of our determination, we do not need to address Murphy's contentions that she was wrongfully declared a vexatious litigant based on three other cases (Case Nos. 07-467019, CGC-08-473479, CGC-11-509264.)
7. On or about June 19, 2013, Murphy filed a third federal lawsuit in the United States District Court for the Northern District of California in Case No. 13-cv-02820-JST, alleging claims arising out of foreclosure proceedings on her condominium unit. On July 7, 2013, the court denied Murphy's motion for a preliminary injunction and issued an order to show cause by August 12, 2013, why the action should not be dismissed for lack of subject matter jurisdiction. Because Murphy's response to the order to show cause did not establish that the court had subject matter jurisdiction over the action, the court dismissed the action without prejudice, and noted that Murphy could file her claims in state court. According to the parties' motion papers in the superior court, at the time of the filing of the motion to declare Murphy a vexatious litigant, Murphy had a pending appeal challenging the federal court dismissal order in Case No. 13-cv-02820-JST. Consequently, the superior court could not rely on this third federal action to find Murphy a vexatious litigant as the lawsuit was not finally determined adversely against her at the time of the filing of the motion to declare her a vexatious litigant. (See Childs, supra, 29 Cal.App.4th at p. 994 [a lawsuit is not "finally determined" against a plaintiff while an appeal is still pending at the time of the filing of the motion to declare plaintiff a vexatious litigant].)
8. For example, in support of her argument that she was likely to prevail on her current litigation, Murphy refers us to her complaint filed in Case No. CGC-13-530617, which was dismissed without prejudice, and which pleading was no longer operative at the time the court considered the vexatious litigant motion.
9. We recognize Raley's brief suffers from the same deficiencies as those in Murphy's opening brief. Indeed, Raley's brief contains no citations to any portion of the record on appeal. However, it is of no moment. As an appellant, Murphy has the burden of demonstrating she is entitled to relief. Reversible error cannot be demonstrated by the fact that Raley has not addressed, or adequately addressed, contentions for which Murphy in her opening brief does not present arguments supported by citations to the relevant portions of the record on appeal.

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