Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, No. 08C0068, James LaPorte, Judge.
Jesse T. Moten, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
OPINION
Before Wiseman, Acting P.J., Dawson, J. and Hill, J.
STATEMENT OF THE CASE AND FACTS
Appellant seeks to appeal an order declaring him a vexatious litigant. According to the trial court’s order of January 5, 2009, declaring appellant a vexatious litigant, within the past seven years, appellant has commenced at least five separate actions in the United States District Court of California, the Ninth Circuit Court of Appeals, and various state superior and appellate courts in California. Of the separate actions, at least five have been finally determined adversely to appellant, meeting the statutory requirement set forth in Code of Civil Procedure section 391, subdivision (b)(1). The trial court further found that in the pending action, appellant was not likely to succeed on the merits because he failed to comply with the Government Tort Claims Act and because his complaint fails to state a cause of action and lacks requisite particularity. On January 5, 2009, the trial court granted respondent’s motion to declare appellant to be a vexatious litigant and ordered appellant, within 10 days of the date of the order, to furnish and post $1,580 in security. The trial court further noted that failure to furnish the security within 10 days of the date of the order would result in dismissal of the lawsuit.
Section 391, subdivision (b)(1) states:
On February 5, 2009, appellant filed a notice of appeal wherein he attempts to appeal the granting of respondent’s motion for an order declaring him a vexatious litigant.
On March 10, 2009, this court issued an order directing appellant to address the following questions:
“1. Is the January 5, 2009 order declaring appellant to be a vexatious litigant an appealable order?
“2. Should the appeal be dismissed?”
On March 24, 2009, appellant filed a response to this court’s order simply stating “the court has jurisdiction and Mr. Moten asserts order is ‘injudicious’ and failed to conduct lawful review test of success on the merits.”
DISCUSSION
An order requiring a plaintiff to furnish security as a vexatious litigant is not appealable. (Childs v. PaineWebber, Inc. (1994) 29 Cal.App.4th 982, 985, fn. 1.) The appeal will lie from the judgment or order of dismissal. (Roston v. Edwards (1982) 127 Cal.App.3d 842, 846.) The appeal is dismissed.
“(b) ‘Vexatious litigant’ means a person who does any of the following:
“(1) In 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 (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.”