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Ellyn N. Quiggle v. Joseph D. Klatt

December 22, 2010


Super. Ct. No. 37-2009-00086777-CU-MC-CTL APPEAL from orders of the Superior Court of San Diego County, Ronald S. Prager, Judge.

The opinion of the court was delivered by: O'rourke, J.

Quiggle v. Klatt CA4/1


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Ellyn Quiggle appeals from orders declaring her a vexatious litigant, requiring her to file a $25,000 bond by a date certain, and subjecting her to prefiling requirements under Code of Civil Procedure section 391.7.*fn1 Quiggle contends the trial court prejudicially erred in numerous ways, including by miscounting her litigations for purposes of section 391, subdivision (b)(1) of the vexatious litigant statute, failing to admit her evidence, exhibiting prejudice toward her, and depriving her of due process. We affirm the orders.


In April 2009, Quiggle filed a verified complaint for damages and a preliminary and permanent injunction against Joseph Klatt, who was the property manager for a multi-unit building in La Jolla, California (the premises) in which Quiggle was a tenant. She alleged Klatt maintained the premises in a manner that "harbor[ed] continuous nuisances" consisting of asbestos and lead contaminations that assertedly exceeded allowable federal, local and state levels, and also harassed and discriminated against her in retaliation for her discovering the contamination. She sought an injunction against Klatt, damages according to proof, and other relief.

In July 2009, Klatt moved for orders (1) declaring Quiggle a vexatious litigant; (2) requiring her to furnish security under sections 391.1 and 391.3; and (3) entering a prefiling order against Quiggle under section 391.7. He argued Quiggle had brought at least twelve litigations in the preceding seven years determined adversely to her as reflected by various dismissals, denials of her requests for temporary restraining orders (TROs) and abandoned appeals. Klatt further argued Quiggle had no reasonable probability of success in her pending litigation against him; that he had been diligent and reasonable in his efforts to address Quiggle's concerns with lead and asbestos contamination in materials at her unit, having hired companies to do testing and remediation and then obtaining reports confirming the remediation work met all "clearance" criteria. He maintained Quiggle was neither entitled to injunctive relief as the affected areas had met all clearance requirements, nor would she personally benefit from such relief as her lease would be expiring without renewal in August 2009. Klatt sought judicial notice of the matters that he contended demonstrated Quiggle's unsuccessful litigations.

Klatt's motion was accompanied by several declarations, including that of Klatt and James Clutter, a certified asbestos consultant, environmental and microbial consultant, and international code counsel certified combination building inspector with Clark Seif Clark, Inc. (Clark). Klatt averred that following a sewage leak affecting portions of Quiggle's unit, a company, Protera, Inc., confirmed that certain materials contained asbestos in excess of allowable limits. Klatt stated that another company, Alliance Environmental Services, Inc., performed asbestos remediation, and after further complaints by Quiggle, yet another company, Design for Health Environmental Services, conducted additional sampling and determined there was no asbestos-containing materials or lead in excess of allowable limits in the unit or garages. According to Klatt, Quiggle had further testing performed, as well as an inspection by the City, which found lead traces in the garage, wood subfloor and windowsill. In response, PW Stephens, Inc. and Clark performed additional lead and asbestos remediation and sampling of the units and garages, resulting in clearance reports that concluded the units and garages were free from asbestos and lead contamination. In his declaration, Clutter confirmed that Clark had created a clean-up protocol for portions of Quiggle's unit and garages that was implemented by PW Stephens, Inc., and thereafter his company had performed lead and asbestos testing that confirmed the areas met California State mandated clearance criteria.

Quiggle opposed the motion in part with a 22-page declaration and a "bad faith timeline" purporting to reference factual matters relating to her present lawsuit. In her declaration, Quiggle denied she was a vexatious litigant, asserting that all of her litigation was "out of necessity" and the majority of it had been settled. She accused Klatt's attorney of acting in bad faith in order to intimidate her and deprive her of her right of access to the courts. According to Quiggle, all of her civil actions involved four parties or "groups of parties" against which she had successfully negotiated settlements;*fn3 she claimed she had never relitigated the same claim against the same parties, and had not filed unmeritorious, frivolous or excessive motions or sought excessive discovery. Quiggle pointed out that in March 2008, another superior court judge had determined she was not a vexatious litigant.

Klatt replied with numerous evidentiary objections to Quiggle's 22-page declaration (and other declarations submitted by Quiggle), including on grounds her declaration as a whole was procedurally deficient and an attempt to circumvent the 15-page limit for points and authorities. Pointing to her failure to authenticate or seek judicial notice of various items of evidence, he argued Quiggle did not dispute that at least seven litigations had been determined adversely to her within the last seven years, entitling him to an order declaring her a vexatious litigant under section 391, subdivision (b)(1).

The trial court granted Klatt's requests for judicial notice and sustained his global and the majority of his other evidentiary objections to Quiggle's declarations. It ruled Quiggle was a vexatious litigant under section 391, subdivision (b)(2) as evidenced by six actions that she had filed in propria persona and were finally determined adversely against her in the last seven years. It ordered Quiggle to file a $25,000 bond on or before October 1, 2009, and issued a prefiling order.

Rather than post her bond, Quiggle unsuccessfully sought reconsideration of the trial court's ruling. On October 23, 2009, the court again ordered her to post a bond on or before October 30, 2009. On November 4, 2009, the court dismissed Quiggle's action for failure to post the required security. Quiggle filed notices of ...

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