Opinion
A157476
03-30-2021
HILJA M. KEADING, Plaintiff and Respondent, v. KENTON KEADING, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSP16-00402)
Kenton Keading, appearing in propria persona, appeals from an order designating him a vexatious litigant and requiring him to furnish security to proceed with pending litigation against his sister, Hilja M. Keading. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed discussion of the facts underlying the dispute between siblings Kenton and Hilja, which we adopt and incorporate by reference, is set out in our prior partially published opinion, Keading v. Keading (2021) 60 Cal.App.5th 1115 (Keading I).
We repeat basic facts relevant to this opinion: Siblings Kenton and Hilja were beneficiaries of a family trust their parents, Lucille and Lewis, created for them decades before they died in September 2015 and January 2016, respectively. Over the years, the parents modified the trust in ways that differentiated distributions between the two siblings. In 2015, however, Lewis executed an equalizing amendment to the trust that directed trust assets be divided to result in a net equalization between Kenton and Hilja, such that each one would receive the same amount from the trust as a whole.
Weeks before Lewis died, Kenton took him to execute a new power of attorney designating him, rather than Hilja, as his father's attorney-in-fact. Acting under this power of attorney, Kenton executed a grant deed transferring the main trust asset, the family residence at 60, 50, and 21 Laurel Lane, El Sobrante (the Property), out of the trust and to himself and Lewis in joint tenancy with right of survivorship.
After Lewis died and upon discovering that Kenton had represented himself as their father's attorney-in-fact and had executed a grant deed transferring the Property from the family trust, Hilja petitioned the trial court in Contra Costa County Superior Court, case No. MSP16-00402 (the Elder Abuse Action), to suspend and remove Kenton as a trustee of the family trust, appoint a successor trustee, and recover trust assets. The court appointed professional fiduciary Elizabeth Soloway as trustee, and the parties engaged in months of discovery and motions, during which time Kenton periodically represented himself in propria persona.
While the Elder Abuse Action was being litigated, Kenton filed in propria persona a separate defamation action against Hilja in Contra Costa County Superior Court, case No. MSC16-02351, but the complaint was later dismissed. In the Elder Abuse Action, the trial court found that the grant deed transferring the Property from the trust was invalid and set it aside. Following a four-day bench trial, the court found Kenton liable for elder abuse and ordered him to pay $1,548,830 in damages. The court further ordered Kenton to immediately vacate the Property, where he had been living, and authorized Soloway to take immediate possession. Kenton appealed both the dismissal of his defamation complaint and the judgment in the Elder Abuse Action.
With this background in mind, we now set out what occurred following those appeals to address the pertinent issues in this one.
While Kenton's appeals were pending, the parties dealt with the effects of the trial court's judgment. In April 2018, Soloway conditionally resigned as trustee upon Hilja's appointment as successor trustee. Soloway also petitioned the court for an order lifting the stay of enforcement of the judgment in the Elder Abuse Action that had been triggered upon Kenton's appeal.
Over Kenton's opposition, the trial court granted Soloway's petition. In a written order issued on June 5, 2018 (the June 5th Order), the court found the trustee owned a 100 percent fee interest in the Property, which Kenton was occupying without the trustee's authorization. It further found Kenton's continued occupancy of the Property resulted in injury and loss to the trust estate and, to Hilja, as its beneficiary. The court ordered Kenton to immediately vacate the Property. Additionally, the court accepted Soloway's resignation as trustee and appointed Hilja to succeed her. In her capacity as successor trustee, Hilja received authorization to proceed with administering the family trust and enforcing the judgment in the Elder Abuse Action. Hilja obtained a writ of possession the next day, and Kenton was served with an order to vacate the Property by June 14, 2018.
On June 12, 2018, Kenton filed an ex parte motion to stay enforcement of the June 5th Order and the writ of possession. The same day, the trial court summarily denied the motion. On June 14, 2018, Kenton filed a petition for writ of mandate and/or prohibition in this court in another effort to stay enforcement of the June 5th Order and writ of possession. This court summarily denied the petition.
Around this time, case No. RS18-0218 was initiated nominally by Kenton's wife in Contra Costa County Superior Court. Appearing in propria persona, Kenton's wife filed an ex parte application for a stay of execution of judgment and the writ of possession. That court issued an order staying the writ of possession for 10 days until June 22, 2018. Hilja contends she received no notice of this proceeding, which Kenton does not dispute. There is nothing in the record to indicate notice was given. By June 22, 2018, Kenton vacated the Property, but disputes between the parties persisted over personal property that remained there.
Shortly thereafter, Kenton initiated case No. N18-1394 in Contra Costa County Superior Court, in which he applied in propria persona for an elder abuse restraining order against Hilja to protect himself as an elder or dependent adult from his sister's alleged abuse. The court granted Kenton a temporary restraining order against his sister, and the matter was set for hearing. Before the matter was heard, the temporary restraining order was amended to allow Kenton to pick up his belongings at the Property. Hilja contends that she received no notice of this proceeding, which Kenton does not dispute. Again, there is nothing in the record to indicate notice was given.
On July 3, 2018, Hilja filed an ex parte application in the Elder Abuse Action for an order precluding Kenton's access to the Property. Kenton opposed the application based, in part, on the temporary restraining order he obtained in case No. N18-1394, which authorized him to retrieve his personal property. The same day, the court granted Hilja's request and issued a written order (the July 3d Order) prohibiting Kenton from entering the Property. The court ruled that its July 3d Order superseded the temporary restraining order Kenton obtained. The court, which had presided over most matters in the Elder Abuse Action, further confirmed it was the court "vested with exclusive jurisdiction over the internal affairs" of the family trust and that its jurisdiction extended to any disputes between Hilja as trustee and others, and issues related to access to the Property.
Yet two days later, Kenton in propria persona filed a request in case No. N18-1394, asking that court to amend the temporary restraining order it had issued so that it remained enforceable, and to vacate the July 3d Order. The court denied the application. Approximately two weeks later, it denied Kenton's restraining order application altogether.
On July 25, 2018, Hilja moved to have Kenton declared a vexatious litigant. She requested the court prohibit Kenton from filing in propria persona any new litigation, petition, application or motion without first obtaining leave of court, and that such proposed filings be permitted only when they appeared to have merit. She also requested that any permitted filing be conditioned upon Kenton furnishing security.
Meanwhile, on July 30, 2018, Kenton filed an ex parte application in the Elder Abuse Action seeking to vacate the court's July 3d Order. He claimed the July 3d Order resulted from a fraudulent representation made by Hilja. The trial court again summarily denied the application. In August 2018, Kenton filed for bankruptcy.
Kenton's litigation efforts nonetheless continued. On September 12, 2018, he filed a cross-petition against Hilja in the Elder Abuse Action, contesting the validity of the equalizing amendment to the family trust which had resulted in the equalized net distribution of trust assets between the siblings. Kenton alleged all the trust assets, including the Property, belonged to him. He asked the court to invalidate the equalizing amendment, and for an order preventing Hilja from transferring any trust property. The matter was continued due to Kenton's bankruptcy proceedings.
Hilja's vexatious litigant motion, which was scheduled for hearing on September 25, 2018, was also stayed due to Kenton's bankruptcy proceedings.
While these petitions in the Elder Abuse Action were stayed, Kenton continued to pursue new litigation. In September 2018, he filed case No. C18-01971 in Contra Costa County Superior Court against Hilja and Soloway. He asserted claims for conversion, fraud, interference with expected inheritance, and elder abuse, among others. The claims were based in part on the actions Hilja and Soloway had undertaken in the Elder Abuse Action to recover the trust property.
In January 2019, the bankruptcy court dismissed Kenton's bankruptcy petition after Kenton failed to appear at the meeting of creditors. The bankruptcy-related stays on the various pending proceedings, including Hilja's vexatious litigant motion, soon lifted.
Before the vexatious litigant motion was heard, however, Kenton initiated case No. C19-00331 in Contra Costa County Superior Court. Kenton alleged Hilja committed financial abuse by unduly influencing their father to amend the family trust to equalize the distributions between them. Hilja demurred on multiple grounds, including collateral estoppel, which Hilja argued barred Kenton from relitigating issues determined in the Elder Abuse Action.
The court heard Hilja's vexatious litigant motion in May 2019 and declared Kenton a vexatious litigant. In its order, the court authorized any presiding justice or presiding judge to condition the filing of any litigation by Kenton on the furnishing of security for the benefit of defendants. It also ordered Kenton to furnish security in the amount of $100,000 for his three pending actions—the cross-petition in case No. MSP16-00402 (the Elder Abuse Action), case No. MSC18-01971, and case No. MSC19-00331 (collectively referred to as Pending Matters)—or face dismissal of each action for which no security was furnished.
In the vexatious litigant order and in later proceedings, the court also addressed and disposed of some of the other Pending Matters initiated by Kenton. The court dismissed Kenton's cross-petition in the Elder Abuse Action to invalidate the equalizing amendment to the family trust. It concluded the claim should have been filed earlier as a counter-claim and Kenton was collaterally estopped from raising it. In case No. MSC18-01971, filed by Kenton against Hilja and Soloway, the court concluded the action was "an impermissible effort to relitigate the relief granted under the decision rendered in the elder abuse action" and an "improper evasion of [its] exclusive jurisdiction over the internal affairs of the family trust." In case No. MSC19-00331, filed by Kenton against Hilja for allegedly unduly influencing their father, the court again concluded that such claims should have been raised earlier and that Kenton was collaterally estopped from now raising them. The court further rejected Kenton's motion to strike the demurrer filed by Hilja in response to the complaint because Kenton had failed to obtain the leave of court required of him under the vexatious litigant order.
The day after the court declared Kenton a vexatious litigant, Hilja applied for and received an order consolidating certain matters and vacating a temporary restraining order against her in what appears to be another case, case No. N19-0918, that had not yet been served on her. Kenton's appeal of the vexatious litigant order followed.
Since Kenton noticed this appeal, this court has decided other appeals filed by Kenton related to his dispute with Hilja. We affirmed the trial court's judgment in the Elder Abuse Action. (See Keading I, supra, 60 Cal.App.5th at pp. 1130-1131.) We also affirmed the trial court's order dismissing Kenton's defamation complaint against Hilja. (Ibid.) We further awarded costs of appeal to Hilja. (Ibid.)
DISCUSSION
A. The Vexatious Litigant Order
1. Applicable Law
" 'The vexatious litigant statute ([Code Civ. Proc.,] § 391 et seq.) was enacted " 'to curb misuse of the court system' " by " 'persistent and obsessive' litigants." ' " (In re Marriage of Deal (2020) 45 Cal.App.5th 613, 618 (Deal).) Section 391 sets forth four circumstances that define a vexatious litigant. (See § 391, subd. (b)(1)-(4).) Relevant here is section 391, subdivision (b)(3), which applies to any "person" who "[i]n any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay." (§ 391, subd. (b)(3).) " 'Litigation' " for purposes of section 391 means "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (§ 391, subd. (a).)
All statutory references are to the Code of Civil Procedure unless otherwise stated.
A vexatious litigant may be prohibited from filing new litigation unless he or she obtains leave to do so from the presiding justice or judge of the court where he or she intends to file. (§ 391.7, subds. (a), (b).) This prefiling requirement " 'does not deny the vexatious litigant access to the courts, but operates solely to preclude the initiation of meritless lawsuits and their attendant expenditures of time and costs.' " (Deal, supra, 45 Cal.App.5th at p. 618.)
2. Persons Subject to Vexatious Litigant Designation
As an initial matter, Kenton asserts that he cannot be designated a vexatious litigant because he was the defendant in the Elder Abuse Action, and the vexatious litigant statute applies only to plaintiffs. We disagree.
This court recently addressed a similar issue in Deal, supra, 45 Cal.App.5th 613. There, the appellant argued that he could not be deemed a vexatious litigant as a nonplaintiff. (Id. at p. 620.) We rejected that argument. (Id. at pp. 620-622.) First, we observed the statute defines "vexatious litigant" to be " ' "a person" ' " who makes unmeritorious filings with the court. (Id. at p. 620, italics added by Deal; § 391.) Following the statute's plain meaning, we explained that the statute " 'applies to any litigant—plaintiff or defendant—who, "acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers . . . or engages in other tactics that are frivolous or solely intended to cause unnecessary delay." ' " (Deal, supra, at p. 620, italics added.) Thus, the nature of the party's conduct rather than his or her party designation determined whether he or she would be so designated. We also reasoned that applying the relevant vexatious litigant provisions to both plaintiffs and defendants " 'advance[d] the purpose of the statute—curbing abuse of the judicial system.' " (Ibid.)
For the same reasons, we reject Kenton's contention that his status as defendant in the Elder Abuse Action immunized him from being designated a vexatious litigant.
We also cannot disregard the various party designations Kenton donned in multiple proceedings across several departments throughout Contra Costa Superior Court which factored into the court's vexatious litigant order. In the Elder Abuse Action, he was not solely a defendant. He also became a cross-petitioner when he filed his petition contesting the validity of the family trust. He was the plaintiff in case No. C18-01971, the suit in which he asserted conversion and fraud claims against Hilja and Soloway. He was also the plaintiff in case No. C19-00331, the suit in which he accused Hilja of elder abuse. Thus, even if the vexatious litigant statute could not extend to defendants, Kenton would not be protected from its reach given the multiple actions he initiated as a plaintiff.
Kenton argues that this court has already determined he was the defendant in the Elder Abuse Litigation and thus not subject to prefiling requirements. He relies on an order issued by this court's administrative presiding justice in a separate appeal (case No. A159795) allowing Kenton to proceed with that appeal after initially dismissing it. That order, however, recognized only Kenton's right to appeal an adverse decision where he was a defendant. It did not address how his status as a cross-petitioner or plaintiff in multiple other actions could be grounds to designate him a vexatious litigant and subject him to prefiling requirements in trial court proceedings.
For the same reason, John v. Superior Court (2016) 63 Cal.4th 91 (John), does not compel a different result. There, the Supreme Court concluded only that "prefiling requirements do not apply to a self-represented litigant previously declared a vexatious litigant seeking to appeal an adverse judgment . . . in an action where he or she was the defendant." (Id. at p. 93.) The case does not bear on the issues before us in this appeal, namely, the propriety of a trial court's decision to designate a party a vexatious litigant when supported by substantial evidence.
Mahdavi v. Superior Court (2008) 166 Cal.App.4th 32 is also inapplicable. In construing the vexatious litigant statute, the Mahdavi court observed: "In appealing from a ruling in a case that he did not initiate, [the defendant] cannot be said to be 'maintaining' the litigation any more than any defendant can be considered to be 'maintaining' litigation by seeking to defend himself through the filing of pleadings and motions in the trial court." (Id. at p. 41.) But the notion that a defendant cannot be a vexatious litigant because he or she does not "maintain" litigation was overruled in John, supra, 63 Cal.4th 91. The court "disapprove[d] language in Mahdavi . . . to the extent it could be interpreted as precluding a Court of Appeal from declaring an in propria persona defendant on appeal to be a vexatious litigant under section 391." (Id. at pp. 99-100, fn. 2.) In doing so, the court recognized that a defendant appearing in propria persona could be deemed a vexatious litigant even if that defendant did not initiate the litigation.
3. Substantial Evidence
Kenton argues the court's vexatious litigant order was not supported by substantial evidence. As we noted, to deem a party a vexatious litigant, a court must find the party falls under at least one of the four definitions set forth in section 391, subdivision (b). Here, the trial court found Kenton to be a vexatious litigant under subdivision (b)(3), which allows a court to deem a litigant acting in propria persona vexatious if he or she "repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay." (§ 391, subd. (b)(3).)
"What constitutes 'repeatedly' and 'unmeritorious' under [section 391,] subdivision (b)(3), in any given case, is left to the sound discretion" of the court. (Morton v. Wagner (2007) 156 Cal.App.4th 963, 971 (Morton).) To qualify under subdivision (b)(3), courts have required that motions, pleadings or other papers be "so devoid of merit and be so frivolous that they can be described as a ' "flagrant abuse of the system," ' have 'no reasonable probability of success,' lack 'reasonable or probable cause or excuse' and are clearly meant to ' "abuse the processes of the courts and to harass the adverse party." ' " (Morton, at p. 972.)
"Because the trial court is best situated to receive evidence and hold hearings on the question of whether a litigant is vexatious, on appeal, we are required to presume the order declaring a litigant vexatious is correct." (Morton, supra, 156 Cal.App.4th at p. 969.) "We review the trial court's ruling that plaintiff is a vexatious litigant for substantial evidence." (Ibid.)
Here, the trial court made express findings that Kenton repeatedly filed unmeritorious papers, and there is more than ample evidence in the record to support these findings. While Hilja directs us to the full span of litigation between her and her brother, we only need to look to Kenton's litigation activities after the court's June 5th Order for substantial evidence of repeated, unmeritorious filings.
In the nine months that followed that order, Kenton filed (1) the June 12, 2018 ex parte motion in the Elder Abuse Action to stay enforcement of the June 5th Order and writ of possession; (2) the mid-June 2018 ex parte application for a stay of execution of judgment and the writ of possession in case No. RS18-0218 (nominally filed by his wife), which he relied on to delay his departure from the Property; (3) the June 26, 2018 request for an elder abuse restraining order against Hilja in case No. N18-1394, which he attempted to use to regain access to the Property; (4) the July 5, 2018 request in case No. N18-1394 to amend the restraining order and vacate the July 3d Order; (5) the July 30, 2018 ex parte application in the Elder Abuse Action seeking to vacate the court's July 3d Order; (6) the September 12, 2018 petition in the Elder Abuse Action contesting the validity of the equalizing amendment to the family trust; (7) the September 25, 2018 complaint in case No. C18-01971 asserting claims for fraud, conversion, and interference with inheritance against Hilja and Soloway; and (8) the February 21, 2019 complaint in case No. C19-00331 alleging Hilja committed elder abuse against their father. These multiple filings in multiple courts over the course of nine months are sufficient to show Kenton made repeated filings within the meaning of the vexatious litigant statute.
Even if we were to exclude this particular filing from our analysis because it was nominally filed in Kenton's wife's name, we would not alter our conclusion that Kenton made repeated unmeritorious filings within the meaning of section 391, subdivision (b)(3).
There is also substantial evidence that these repeated filings were unmeritorious. Collectively, the enumerated filings between June 2018 and February 2019 sought to undo the judgment in the Elder Abuse Action, repeated requests that had been previously made and denied, or attempted to relitigate issues previously adjudicated or no longer capable of adjudication. For example, Kenton's two June 2018 ex parte applications sought to undo the effects of the June 5th Order which, like the judgment in the Elder Abuse Action, mandated Kenton vacate the Property. He filed these ex parte applications even though he had already been twice unsuccessful in persuading the court to let him remain at the Property—first when he originally opposed Soloway's motion and second when he objected again on the merits to the proposed order submitted after the court decided to grant Soloway's motion. Further, several of these filings demonstrate Kenton's strategy to procure conflicting orders from various departments in Contra Costa Superior Court by requesting them ex parte without notice to Hilja and directly contrary to the Elder Abuse Action court's exclusive jurisdiction over the siblings' trust dispute.
There was also sufficient evidence demonstrating several of Kenton's other filings were also unmeritorious as a matter of law. His September 2018 petition in the Elder Abuse Action contested the validity of the equalizing amendment, and his February 2019 complaint in case No. C19-00331 alleged Hilja unduly influenced their father to execute the equalizing amendment and was thus liable for elder abuse. Both matters, however, related to Hilja's previously adjudicated claims against Kenton in the Elder Abuse Action, in which the court expressly found "[t]he last clear, lucid, considered disposition of the trust was to equalize the distribution between Hilja and Kenton." It was reasonable for the trial court to regard both as compulsory counter-claims which should have been asserted earlier. (See § 426.30, subd. (a) ["if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded"].)
Kenton's September 2018 complaint in case No. C18-01971 alleged Hilja and Soloway conspired to obtain the relief and orders granted in the Elder Abuse Action and to enforce those orders. It was reasonable for the trial court to view that case as an improper attempt to relitigate the relief granted in the Elder Abuse Action and to evade its exclusive jurisdiction over matters involving the family trust. (See, e.g., Prob. Code, § 17000 [superior court having jurisdiction over the trust pursuant to this part has exclusive jurisdiction of proceedings concerning the internal affairs of trusts], id., § 17200, subd. (b)(3), (4) [proceedings concerning the internal affairs of a trust include "determining to whom property shall pass or be delivered"].) The court did not err in finding these matters to be unmeritorious.
Kenton argues the trial court did not have a sufficient evidentiary basis to conclude his motions were unmeritorious. He then analyzes the merits of "every action" he took between March 2017 and the motion to declare him a vexatious litigant. We need not go through the merits of every single motion or application Kenton filed, especially when Kenton selectively disregards his additional unmeritorious filings subsequent to Hilja's vexatious litigant motion. For the purposes of a vexatious litigant designation, the determinative factor is the nature and effect of the filings, not the number. (Morton, supra, 156 Cal.App.4th at pp. 971-972.) Our review of Kenton's filings between June 2018 and February 2019 amply demonstrates his persistent pattern of repeating requests after they have already been denied, relitigating issues that have already been decided or are no longer capable of adjudication, and sowing confusion with conflicting orders from multiple courts.
4. Security
The vexatious litigant statute defines "security" as "an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses, including attorney's fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant." (§ 391, subd. (c).)
Sections 391.1 and 391.3 set out when the court may impose a security requirement on a party. Section 391.1 provides: "In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security . . . . The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant." (§ 391.1.) Section 391.3, subdivision (a) states: "[I]f, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix." (§ 391, subd. (a).)
a. Constitutionality
As an initial matter, Kenton argues that subjecting only plaintiffs to the security obligation violates the due process and equal protection rights under the United States Constitution. He provides no authority for his constitutional argument so we need not consider it. (See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 (Allen) ["When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration."].)
In his reply brief, Kenton for the first time presents authorities for his constitutional arguments. However, arguments and authorities raised for the first time in a reply brief will not be considered unless good cause is shown for the failure to present them earlier. (Trustees of Capital Wholesale Electric etc. Fund v. Shearson Lehman Brothers, Inc. (1990) 221 Cal.App.3d 617, 627.) Kenton has not shown good cause, so we decline to consider these new arguments and authorities.
b. Party Designation
Kenton argues the trial court erred when it required him—a defendant in the Elder Abuse Action—to post security. He contends he could not be subject to a security requirement because it is reserved only for plaintiffs.
Kenton is correct that section 391.1 only allows for a defendant to move the court for an order requiring the plaintiff to furnish security. Hilja does not dispute this point, nor do we.
When the court imposed its security requirements, however, Kenton was not just a defendant in the Elder Abuse Action, as we have already noted. (See ante, part A.2.) He was a cross-petitioner in the Elder Abuse Action based on his petition contesting the validity of the family trust. He was the plaintiff in case No C18-01971, his lawsuit against Hilja and Soloway for alleged fraud and conversion. He was also the plaintiff in case No. C19-00331, the suit in which he accused Hilja of elder abuse. By definition, he was a "plaintiff" for purposes of the vexatious litigation statutes because he had "institute[d] . . . litigation." (§ 391, subd. (d) [" 'Plaintiff' means the person who commences, institutes or maintains a litigation or causes it to be commenced, instituted or maintained . . . ."].) Accordingly, he was properly subject to the court's security requirement.
c. No Reasonable Probability of Prevailing
Kenton further argues the trial court abused its discretion in determining his pending actions had no reasonable probability of success.
As noted, the motion for an order requiring the plaintiff to "furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant." (§ 391.1, italics added.) "This showing is ordinarily made by the weight of the evidence but a lack of merit may also be shown by demonstrating that the plaintiff cannot prevail in the action as a matter of law." (Golin v. Allenby (2010) 190 Cal.App.4th 616, 642.)
For the Pending Matters for which the court imposed a security requirement, Hilja made the necessary showing that Kenton had no reasonable likelihood of prevailing in those actions for the reasons we previously discussed. (See ante, part A.3. [discussion of unmeritorious claims].)
Hilja requests judicial notice of the trial court's order in case No. C19-00331 dismissing that action in which Kenton alleged Hilja procured the equalizing amendment by undue influence. She also requests judicial notice of this court's order denying Kenton's request for leave to appeal the order. She argues that the orders indicate the dismissal of case No. C19-00331 is now fully final and demonstrates that there "is no possibility whatsoever" that Kenton will prevail in that action. Hilja's counsel also requested at oral argument that this court make a finding that it would now be legally impossible for Kenton to prevail in certain matters based on the doctrine of collateral estoppel.
We deny both judicial notice requests as unnecessary to our decision. (County of Monterey v. Bosler (2020) 57 Cal.App.5th 466, 479, fn. 7.) We also decline counsel's request for a finding on legal impossibility as that, too, is unnecessary for our decision.
d. Security Amount
Kenton next contends the $100,000 he was ordered to furnish for each pending proceeding or action was excessive, capricious, unreasonable, and not supported by the evidence. Again, we disagree.
As noted, a security under section 391.1 is designed by definition to "assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses, including attorney's fees and not limited to taxable costs, incurred in or in connection with a litigation instituted . . . by a vexatious litigant." (§ 391, subd. (c).) The court may set the amount of security required under section 391.3 in the exercise of its discretion. (§ 391.3, subd. (a) ["security in such amount and within such time as the court shall fix"].) We review the court's determination of the amount of security for substantial evidence to support the order. (Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1588, disapproved of on other grounds as stated in Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 785, fn. 7.)
Here, the trial court's decision to set security at $100,000 was reasonable and based on sufficient evidence. The trial court had before it the attorney fees and costs Kenton had been ordered to pay in earlier cases and could reasonably draw from these cases to set the security amount. In the Elder Abuse Action, Kenton was ordered to pay $480,713 in attorney fees mostly to Hilja, and $18,704 in costs. In that case, he had also been sanctioned $4,999 for filing an unjustified discovery motion after the court found he did not act with substantial justification in bringing the motion. In the dismissed defamation case, the court ordered Kenton to pay Hilja $32,000 in attorney fees. If Kenton pursued any of the Pending Matters, the trial court could have reasonably expected Kenton to resort to similar litigation tactics that previously led to him being sanctioned. The court could have also reasonably expected Kenton to persist with his excessive and duplicative filings necessitating Hilja to respond and thereby incur potentially substantial additional attorney fees.
Also, the trial court had presided over the majority of Kenton's motions in the Elder Abuse Action, took judicial notice of the myriad unsuccessful motions, applications, and actions Kenton filed in other cases in Contra Costa County Superior Court, and reviewed the court's register of actions for those cases. It was in the best position to determine what amount was reasonable under the circumstances and committed no error in imposing security in the amount of $100,000 for each of the Pending Matters.
Kenton contends the court "made no effort to tailor the order of posting of security to each of the underlying causes of action." He provides no authority that requires this type of narrow tailoring, so we need not consider it. (Allen, supra, 234 Cal.App.4th at p. 52.) Even if we considered his argument, we would not be persuaded. Once a court determines that the plaintiff is a vexatious litigant and there is no reasonable probability the plaintiff will prevail in the litigation, the amount of security is set in the court's discretion. (§ 391.3, subd. (a) [security amount set "as the court shall fix"].) The security amount seeks to assure payment of the defendant's "reasonable expenses" incurred in connection with an action filed by a vexatious litigant. (§ 391, subd. (c).) As discussed, the amount set by the court reflected reasonable expenses Hilja could incur in the Pending Matters based on the attorney fees, costs, and sanctions Kenton was ordered to pay in earlier proceedings.
e. Alternatives
Kenton argues the court erroneously failed to consider less restrictive alternatives to protect the court and parties short of imposing the security requirement. We are not persuaded.
Kenton cites no requirement under this state's vexatious litigant statute that requires a court to consider alternatives before imposing a security requirement. Section 391.3 states that "if . . . the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish . . . security . . . ." (§ 391.3, subd. (a), italics added.) Under the plain meaning of the statute, security is mandatory when the statutory criteria are satisfied.
The federal cases Kenton relies on do not discuss California's vexatious litigant statute and concern a different standard for prefiling security orders. They do not apply here.
B. Consolidation Order
Finally, Kenton argues the trial court's order to consolidate was erroneous.
Trial courts have discretion to consolidate actions involving common questions of fact or law. (§ 1048, subd. (a).) Further, " '[a] judgment or order of the [trial] court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent.' " (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) "The party appealing has the burden of overcoming the presumption of correctness. For this purpose, [he] must provide an adequate appellate record demonstrating the alleged error. Failure to provide an adequate record on an issue requires that the issue be resolved against the appellant." (Defend Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 859-860.)
The motion to consolidate is not in the record provided by Kenton. The register of actions for the Elder Abuse Action, which is in the record, references an ex parte motion to consolidate filed by Hilja and granted by the court the day after the vexatious litigant order issued. There is also a request for judicial notice and declaration in support of the motion. But none of these documents explain the proceedings Hilja sought to have consolidated, the grounds for her request, or the reasons the court exercised its discretion the way it did. Without an adequate record, we are unable to provide any meaningful review of this issue. Having failed to satisfy his duty to show error by an adequate record, we must reject any claim of error with respect to the court's consolidation order.
DISPOSITION
The order designating Kenton Keading a vexatious litigant is affirmed. Hilja Keading is awarded costs on appeal.
WISEMAN, J. WE CONCUR: FUJISAKI, Acting P.J. PETROU, J.
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.