Opinion
G053139
08-16-2017
KANG SHEN CHEN, Plaintiff and Appellant, v. T.T. GROUP, INC. et al., Defendants and Respondents.
Kang Shen Chen, in pro. per., for Plaintiff and Appellant. Booke & Ajlouny and Victoria L.H. Booke for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00772578) OPINION Appeal from orders of the Superior Court of Orange County, Sheila Fell, Judge. Affirmed. Kang Shen Chen, in pro. per., for Plaintiff and Appellant. Booke & Ajlouny and Victoria L.H. Booke for Defendants and Respondents.
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Plaintiff and appellant Kang Shen Chen appeals from an order declaring him to be a vexatious litigant, and requiring him to furnish security before he could proceed with the action he filed against defendants and respondents T.T. Group, Inc. (T.T.), Jennifer Chen, Booke & Ajlouny, and Victoria Booke (Booke). He also appeals from dismissal of the action based on his failure to attend an order to show cause (OSC) re dismissal.
As to the dismissal plaintiff contends the court prematurely dismissed the action, and he was not given sufficient notice of the hearing.
As to the vexatious litigant order, he claims the court lacked jurisdiction, including because he had filed requests to enter default. He also asserts there was insufficient evidence to show prior actions had been finally and adversely decided against him and there was no reasonable likelihood he would prevail is this action.
We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
In February 2015 plaintiff filed suit for intentional infliction of emotional distress and malicious prosecution against defendants. The attached proof of service showed service by mail and listed no parties' names. In March the clerk served a case management conference (CMC) notice.
When plaintiff did not appear at the CMC the court set an OSC re dismissal for May 21, stating that if there were no appearances at that time, the case would be dismissed "without further notice." It further instructed at least one party had to appear to avoid dismissal. Plaintiff was ordered to give notice of the OSC. Nothing in the register of actions reflected he did so.
In April T.T., Booke & Ajlouny, and Booke filed a vexatious litigant motion (Motion). In addition to a declaration plaintiff was a vexatious litigant, the Motion sought to require plaintiff to post security. It listed seven prior actions plaintiff had filed in propria persona in the prior seven years. A hearing on the Motion was set for September 9 and the hearing on the OSC re dismissal was continued to October 1.
In the meantime, on September 1 plaintiff filed a request to enter default. It was rejected due to the absence of proofs of service. On September 8 plaintiff again filed requests to enter defaults.
On September 9 the court granted the Motion, finding plaintiff to be a vexatious litigant and staying the case until plaintiff posted $50,000 security. The same day, the court noted it could not process the requests to enter default based on the stay pending plaintiff's posting of security.
The court also barred plaintiff from filing any additional actions without obtaining leave of court.
On September 30 plaintiff filed a motion for reconsideration. On October 1 plaintiff failed to appear at the continued hearing on the OSC re dismissal and the court dismissed the action without prejudice. On November 10 the formal order granting the Motion was signed and entered. Two weeks later the court dismissed plaintiff's motion for reconsideration.
DISCUSSION
1. Dismissal of Action
When plaintiff failed to appear at the continued OSC re dismissal hearing, the court dismissed the action without prejudice. Relying on Code of Civil Procedure sections 583.410, subdivision (a) and 583.420, subdivision (a) (all further statutory references are to this code), and California Rules of Court, rule 3.1340(a) (all further references to rules are to the California Rules of Court), plaintiff argues this was error because the court may not dismiss for failure to prosecute less than two years after the case was filed. He also claims the court failed to give him adequate notice of a potential dismissal as required under those statutes and rule. Plaintiff is wrong.
Section 583.410, subdivision (a) gives the court discretion to dismiss a case for delay in prosecution when "appropriate under the circumstances of the case." Section 583.420, subdivision (a)(2)(B) allows the court to dismiss an action if it is not brought to trial within two years after filing. Rule 3.1340(a) gives the court discretion to dismiss an action if not tried or settled within two years after filing.
Contrary to defendants' claim this is an appealable order. (§ 581d; Topa Ins. Co. v. Fireman's Fund Ins. Companies (1995) 39 Cal.App.4th 1331, 1336 [involuntary dismissal without prejudice appealable].)
First, nothing in the record shows the action was dismissed for failure to prosecute within two years of filing under section 583.420, subdivision (a)(2)(B). Rather it was based on plaintiff's failure to appear at the continued OSC hearing that resulted from his failure to attend the CMC.
Second, because the case was not dismissed for failure to prosecute under section 583.410, subdivision (a) and rule 3.1340(a), the notice requirements therein do not apply. Further, proper notice was given and it plainly stated the action would be dismissed if a party failed to appear. This was sufficient to protect plaintiff's due process. (Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4th 1422, 1429 [notice that dismissal possible is sufficient].) In addition, in a declaration filed in response to the OSC re dismissal, plaintiff specifically acknowledged receipt of notice.
We reject plaintiff's argument he was not given notice the case would be dismissed if he failed to appear at the continued OSC re dismissal. At the May hearing, which plaintiff attended, the court continued the OSC hearing. Pursuant to the original notice, plaintiff was required to appear at the continued hearing.
We likewise reject plaintiff's contention the court abused its discretion when it continued the OSC rather than taking it off calendar once plaintiff appeared at the original May hearing. By the time of the OSC hearing, the Motion had been filed and the action was stayed. (§ 391.6; Muller v. Tanner (1969) 2 Cal.App.3d 438, 443 [under section 391.6, filing of vexatious litigant motion seeking order for security stays all proceedings].) Thus, the court was required to continue the OSC hearing.
Third, courts have the inherent authority to dismiss within a period less than two years. (§ 583.150; see § 581, subds. (b)(4) [dismissal without prejudice for delay in prosecution], (m) [power to dismiss not limited to reasons enumerated in statute].) California Casualty Indemnity Ins. Co. v. Mendoza (1995) 36 Cal.App.4th 678 affirmed dismissal of an action for failure to appear at an OSC re dismissal as within the discretion of the court. (Id. at pp. 681-682.) 2. Grant of Vexatious Litigant Motion
a. Jurisdiction
Plaintiff contends the court erred in granting the Motion and issuing the vexatious litigant order because it had no jurisdiction to do so. He claims the case had already been dismissed when the order granting the Motion was entered. Not so.
The court granted the Motion and entered the minute order on September 9. That was the effective date (McHale v. State of California (1981) 125 Cal.App.3d 396, 399 ["when a court enters a minute order which does not call for the preparation and filing of a formal order, the minute order is final and all legal consequences ensue therefrom"].) It was prior to the October dismissal. Entry of a formal order in November was merely ministerial. (Rose v. Superior Court (1934) 140 Cal.App. 418, 428.)
As an alternate theory, plaintiff complains the court clerk violated his ministerial duty when he rejected plaintiff's second request to enter defendants' defaults. He argues the defaults either were or should have been entered on September 8, the day before the Motion was granted, thus depriving the court of jurisdiction to hear the Motion. This argument fares no better.
Plaintiff claims the clerk entered the defaults on September 8 and then subsequently cancelled them. This is not true as to T.T., Booke & Ajlouny, and Booke. The requests to enter default as to those parties were filed and subsequently cancelled. But their default was never entered.
Cancellation was proper. Once the Motion was filed, the action was stayed and the filing parties were not required to answer. (§ 391.6 [where vexatious litigant motion seeking posting of security filed, moving parties not required to answer].)
It is correct the defaults of two other defendants had been entered and were cancelled the next day when the stay was issued. But even though these parties were not the moving parties, once the Motion was filed, the action was stayed and the court had no power to enter their defaults. (Muller v. Tanner, supra, 2 Cal.App.3d at p. 443.)
b. Vexatious Litigant
A plaintiff in propria persona is a vexatious litigant if, in the immediate past seven years, he has "commenced, prosecuted, or maintained" at least five non-small claims actions "that have been . . . finally determined adversely to the person or . . . unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing." (§ 391, subd. (b)(1).)
Plaintiff maintains there was insufficient evidence to show the subject actions had been finally decided against him. This argument has no merit.
In support of the Motion defendants filed a request for judicial notice that included information as to all of the prior actions on which the Motion was based, including their final determinations. Plaintiff challenges the request, citing to and partially quoting rules 3.1113(l) and 3.1306(c), which set out the requirements for requesting judicial notice. He then in conclusory fashion merely states defendants failed to follow the rules, making their evidence in support of the Motion insufficient. But plaintiff's unsubstantiated claim the request for judicial notice was somehow defective does not satisfy his burden on appeal to affirmatively demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [judgments and orders presumed correct absent affirmative showing to the contrary]; Fonteno v. Wells Fargo Bank, N.A. (2014) 228 Cal.App.4th 1358, 1380.)
Plaintiff also maintains defendants did not establish the underlying actions had been finally determined against him. He relies on one case, Finn v. Drag (1982) 135 Cal.App.3d 360. But that case has been depublished and may not be cited as authority. (Rule 8.1115.)
Even after defendants pointed this out in the respondents' brief, plaintiff again sought to rely on the case in his reply brief, in violation of the court rule. --------
Plaintiff challenges two of the prior actions on which the court relied, claiming one was voluntarily dismissed and another dismissed without prejudice, and argues defendants did not show he had not accomplished his purpose in filing the actions. This contention also fails.
First, plaintiff did not provide any record references to support these factual claims, in violation of rule 8.204(a)(1)(C), which requires "any reference to a matter in the record" to be supported by a citation to its location. Self-represented parties are held to this standard. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
Second, plaintiff did not point to anything in the record to support his assertion, again failing to meet his burden. (Fonteno v. Wells Fargo Bank, N.A., supra, 228 Cal.App.4th at p. 1380.)
Third, voluntary dismissals and dismissals without prejudice constitute final adverse dispositions for these purposes. (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779 [voluntary dismissal without prejudice is final adverse determination for vexatious litigant motion].) Plaintiff cites no authority to show an involuntary dismissal without prejudice is not a final adverse determination.
Finally, even if there was a problem with these two of the seven cases on which defendants relied, only five prior actions are necessary to support the finding plaintiff is a vexatious litigant. c. Security
Plaintiff attacks the order he post $50,000 in security, claiming defendants failed to show he was unlikely to prevail on the merits of the action, as the statute requires. (§ 391.1.) This contention also has no merit.
Plaintiff again states a mere conclusion defendants made a "demurrer[-]like argument" and did not show there was no likelihood he could amend the complaint. This is another instance of plaintiff failing to meet his burden to affirmatively show error. (Fonteno v. Wells Fargo Bank, N.A., supra, 228 Cal.App.4th at p. 1380.)
DISPOSITION
The orders are affirmed. Defendants are entitled to costs on appeal.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.