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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 appeal in October 2009 and November 2009, respectively appealing the court's orders.


I. Overview of Vexatious Litigant Statute and Standard of Appellate Review

Section 391 et seq., California's vexatious litigant statute, permits a defendant to move the court "[i]n any litigation pending in any court of this state," at any time before final judgment, for an order requiring the plaintiff to furnish security upon a showing "that the plaintiff is a vexatious litigant and that there is not a reasonable probability that [s]he will prevail in the litigation against the moving defendant." (§ 391.1.)

A vexatious litigant includes anyone 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 (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." (§ 391(b)(1).)*fn4 The statute broadly defines "litigation" to mean "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (§ 391, subd. (a).) A plaintiff found to be a vexatious litigant will be required to furnish security in order to proceed with the matter if the court determines there is "no reasonable probability" the plaintiff will prevail in the litigation against the moving defendant. (§ 391.3.)

Once a party has been declared a vexatious litigant, the court on its own motion or that of any party may enter a "prefiling" order prohibiting that party from filing new state court litigation in propria persona absent leave of the presiding judge where the litigation is proposed to be filed. (§ 391.7, subd. (a); In re R.H. (2009) 170 Cal.App.4th 678, 690.) After a prefiling order issues, the presiding judge shall permit the party to file further litigation "only if it appears the litigation has merit and has not been filed for the purposes of harassment or delay." (§ 391.7, subd. (b).)

" 'A court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] We uphold the court's ruling if it is supported by substantial evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment.' [Citation.] Questions of statutory interpretation, however, we review de novo." (Holcomb v. U.S. Bank National Assn. (2005) 129 Cal.App.4th 1494, 1498-1499; accord, Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1169; Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.)

II. Quiggle's Forfeited Contentions/Klatt's Request for Contempt Order

Quiggle advances several substantive and procedural arguments that are forfeited by the absence of authority or reasoned argument. Quiggle's unsupported evidentiary challenges (arguments I(B) and I(C)) are noted in footnote 2, ante. Quiggle further contends the court engaged in "prejudicial error," denied her due process, or exhibited bias against her by stating it was " 'looking' to arrive at the predetermined and common goal with defense counsel to deem [her] a vexatious litigant" (argument I, and I(I)); "refusing to allow [her] to lodge her oral arguments" (argument I(A)); "tamper[ing] with the contents of the reporter's transcript to conceal its intent to deprive [her] of due process (argument I(G)); and admitting "memory problems" and exhibiting "incompetence and confusion" (argument I(H)). These arguments primarily recite portions of the reporter's transcript of the hearings without citation to case authority or any legal analysis supporting the contentions. Under these circumstances, we " 'treat the points as waived, or meritless, and pass them without further consideration.' " (H.N. & Frances C. Berger Foundation v. City of Escondido (2005) 127 Cal.App.4th 1, 15.)

We have reviewed the reporter's transcript of the September 18, 2009 hearing on Klatt's vexatious litigant motion as well as the transcript of the October 23, 2009 hearing on her reconsideration motion. During the 25-minute September 2009 hearing, the trial court explained to Quiggle that her evidence was not properly presented, but it nevertheless permitted her to address each case identified by Klatt's counsel, and told her she could "interrupt on any of them as they list them . . . . You can tell me why it's not [a litigation within the meaning of the vexatious litigant statute]." The court appropriately explained to Quiggle during the course of the hearing that, as a self-represented litigant, she was to be held to the same standard as an attorney. It is well settled that self-represented litigants are held to the same standards, including restrictive rules of procedure, as those represented by trained legal counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 830.) The court went methodically through each claimed litigation, and even ruling out those Quiggle claimed had been settled (of which the court found no competent evidence), it found six litigations initiated by Quiggle. During the October 2009 hearing, the court explained to Quiggle that in a reconsideration context, her obligation was to raise evidence that she could not have presented the first time. It allowed her to explain that she felt she had been "bombarded" or "barraged" by the court's procedure of counting the various cases and disagreed with that count, and also that the parties had not discussed whether or not she had a probability of prevailing on the present case. The court had both Klatt's counsel and Quiggle reiterate their arguments on those points, but ultimately ruled Quiggle's evidence was not properly authenticated and denied her motion. We perceive great patience, not prejudice or bias, on the trial court's part during those proceedings.

Klatt urges us to presume the trial court's orders were correct in the face of Quiggle's failures to cite to supporting portions of the record and her minimal authority in support of her arguments. We shall apply the presumption below in part IV, post. He also argues we should hold Quiggle in contempt for impugning the trial court's integrity, citing In re Koven (2005) 134 Cal.App.4th 262 and Hume v. Superior Court of Los Angeles County (1941) 17 Cal.2d 506. Koven, however, involves a matter of direct contempt, which is committed when a person impugns the court's integrity by statements made in open court either orally or in writing. (In re Buckley (1973) 10 Cal.3d 237, 248.) Direct written contempt requires the contemptuous statements be made about the court in which the papers were filed. (See ibid. [citing examples of direct contempts]; Koven, 134 Cal.App.4th at pp. 264, 271-272, 274 [statements made by counsel about Court of Appeal justices in petitions for rehearing; counsel held to be in direct contempt of the appellate court].)

Here, Quiggle's comments in her papers filed before us concern the trial court, and if deemed insolent and disrespectful, they might constitute an indirect or constructive contempt. (In re Marcus (2006) 138 Cal.App.4th 1009, 1014.) In Hume, supra, 17 Cal.2d 506, the California Supreme Court addressed the filing of a federal district court complaint and affidavit assertedly impugning the integrity of the trial court and held the trial court had jurisdiction to enter judgment of contempt upon an accusatory affidavit filed by party instituting contempt proceedings. (Id. at pp. 510-513.) The filing of a sufficient initiating affidavit is a jurisdictional prerequisite for an indirect contempt order and judgment, and without such an affidavit, any such contempt order is void. (In re Koehler (2010) 181 Cal.App.4th 1153, 1169.) We are without authority to hold Quiggle in contempt at this juncture.

III. Vexatious Litigant Finding

We uphold the trial court's finding that Quiggle met the definition of a vexatious litigant under section 391, subdivision (b)(1). As we have explained above, under that section the court was required to find Quiggle had either "commenced, prosecuted or maintained" in propria persona at least five "litigations" in the past seven years (other than small claims court) that were "finally determined adversely" to her. In addition to others, the trial court took judicial notice of the following six matters:

Quiggle v. Steigerwalt (Super. Ct. S.D. County, No. GIC855390) filed in October 2005 by Quiggle in propria persona in which she sued Kerry Steigerwalt, Beth Steigerwalt and Renee Feinswig, against whom Quiggle unsuccessfully sought requests for civil harassment TROs.

Quiggle v. Steigerwalt (Super. Ct. S.D. County, No. GIC858466) filed in December 2005 by Quiggle in propria persona against Beth Steigerwalt, against whom Quiggle again brought an unsuccessful request for a TRO against civil harassment.

Quiggle v. Chiu (Super. Ct. S.D. County, No. GIC860340) filed by Quiggle on January 6, 2006, in which the trial court granted Chiu's motion for summary judgment and entered judgment in his favor. Though Quiggle contended the case was settled, the trial court sustained objections to her documents (letters, an invoice, and request for dismissal with prejudice) on various grounds including they lacked foundation, constituted improper opinion, or were speculation. It pointed out to Quiggle at the hearing that her documents purporting to show certain outcomes were unauthenticated.

Quiggle v. Balabanian, Roboubi and Coldwell Banker (Super. Ct. S.D. County, No. GIC860353) filed in January 2006 by Quiggle and concluding with orders sustaining the parties' demurrers without leave to amend and judgments in the defendants' favor. Quiggle admitted the case was finally determined adversely to her.

Quiggle v. Balabanian et al. (Super. Ct. S.D. County, No. 37-2007-00084042-CU-BC-CTL) filed in December 2007 by Quiggle in propria persona and concluding with orders granting Roboubi's motion for judgment on the pleadings and a judgment in favor of Coldwell Banker and Chake Balabanian. Quiggle admitted this case was determined adversely to her.

Quiggle v. Juarez (Super. Ct. S.D. County, No. 37-2008-00097803-CU-HR-CTL) filed by Quiggle in propria persona in December 2008, in which Quiggle's request for a TRO against civil harassment was denied without prejudice on December 12, 2008.

Quiggle contends the court allowed Klatt's counsel to "fabricate" an "obscure [and] unconventional" means to count the cases for purposes of section 391.1; she argues she can find no case in which a failed TRO could be counted as a "litigation" for purposes of the vexatious litigant statute. Quiggle suggests the TRO is an interim or interlocutory order that is excluded from the statute's broad definition of litigation. She also asserts that counting such matters as litigation in cases where multiple parties "presented a physical threat to another party" would cause the number of vexatious litigants to "skyrocket . . . ."

These contentions are unavailing. As we have pointed out, the statute broadly defines litigation to mean "any civil action or proceeding" commenced or pending in any state or federal court. (§ 391, subd. (a).) "Actions" and "special proceedings" are defined in the Code of Civil Procedure by their remedies. (§ 21; see People v. Yartz (2005) 37 Cal.4th 529, 536.) An "action" is defined as "an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense."

(§ 22.) A "special proceeding" is "[e]very other remedy" that is not an action. (§ 23.) "Special proceedings . . . generally are 'confined to the type of case which was not, under the common law or equity practice, either an action at law or a suit in equity.' " (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 725; see People v. Yartz, 37 Cal.4th at p. 536.) Actions seeking injunctive relief are equitable in nature. (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, §§ 126, 127, pp. 205-206.) The statute authorizing an injunction against civil harassment is an equitable remedy, and intended to allow one party to prosecute another for prevention of a wrong. Under these principles, we would characterize the section 527.6 petition as an "action" not a special proceeding. (Accord, Tide Water Associated Oil Co v. Superior Court of Los Angeles (1955) 43 Cal.2d 815, 822 [legislation authorizing injunction against unreasonable waste of gas is essentially an action in equity in which the remedy of injunction is used, and is an action not a special proceeding]; Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 707-708; Agricultural Labor Bd. v. Superior Court (1983) 149 Cal.App.3d 709, 713-716.)

Each matter following Quiggle's filing of a section 527.6 petition was a separate action or litigation, and was determined adversely against Quiggle despite one having been denied without prejudice. (See Tokerud v. Capitol Bank Sacramento (1995) 38 Cal.App.4th 775, 779 ["[a]n action [that] 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 actions through to completion. The difference is one of degree, not kind"], italics added.) Actions brought under section 527.6 that are involuntarily denied without prejudice are no less a burden on the defendant and the judicial system than those denied with prejudice.

IV. Reasonable Probability of Prevailing for Purposes of Posting Security

Correctly recognizing its obligation to weigh and evaluate all of the presented evidence, the trial court ruled there was no reasonable probability Quiggle would prevail on her nuisance cause of action and request for injunctive relief against Klatt in the present action. It reasoned that Quiggle's sought-after mandatory injunction would be rarely granted, and only then in extreme cases where the right was clearly established. It found in view of the parties' conflicting views of Klatt's remediation efforts and the inadmissibility of most of Quiggle's evidence, Quiggle had not shown a clearly established right, and did not meet her burden to show all of the elements necessary to support issuance of injunctive relief.

Quiggle has not adequately shown error in this ruling, which we review under the substantial evidence standard. (Fink v. Shemtov, supra, 180 Cal.App.4th at p. 1169.) Under this standard, " 'we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. . . . [ Citations.]' [Citation.] To be substantial, the evidence must be of ponderable legal significance, reasonable in nature, credible, and of solid value. [Citation.] However, substantial evidence is not synonymous with any evidence. [Citation.] 'The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.' " (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.)

Quiggle has arguably waived any sufficiency of the evidence arguments by failing to summarize all of the material evidence, including that damaging to her case. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246; Brockey v. Moore (2003) 107 Cal.App.4th 86, 96; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 8:71,pp. 8-34.) By stating only her own version of events, Quiggle ignores the settled principles of substantial evidence review.

The trial court correctly ruled that a mandatory injunction is rarely granted, and not permitted except in clear and extreme cases. (Hagen v. Beth (1897) 118 Cal. 330, 331; accord, Slakin v. White (2002) 102 Cal.App.4th 963, 972; Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625; Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.) Quiggle does not address or challenge this standard or the trial court's characterization of her requested injunctive relief as mandatory. She bears the burden of overcoming the presumption that an appealed judgment or order is correct. (Ekstrom v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111, 1121.)

Quiggle first asserts that the trial court excluded all of her evidence; that it "did not weigh or evaluate" or examine it. She maintains she could have substituted counsel into her case to help her "surmount technicalities heaped on her by th[e] prejudicial conduct of this trial court" but did not in order to avoid increasing her "already overwhelming debt." The record, however, shows that the trial court scrutinized her evidence in view of Klatt's numerous evidentiary objections. Quiggle's bare assertions, without any competent legal analysis of the trial court's evidentiary rulings or discussion of the evidence presented by Klatt in support of his motion, do not justify reversal.

Quiggle next argues she satisfied all elements for her injunction and nuisance causes of action. Pointing out that the court was to consider the probable outcome at trial and who would suffer greater injury, Quiggle argues that because she had not commenced discovery in her case, she "could not have been construed to have an adverse outcome at trial due to the case just beginning." She complains the burden upon her has been "overwhelming" and that Klatt's burden would have been minimal had he simply contacted the landlord's insurance company and "ordered insurance[-]paid abatement to be paid by insurance monies," which was assertedly Klatt's burden to do under his legal duty to the tenants as the landlord's agent. Other than a single cited authority for the general factors justifying preliminary injunctive relief and a citation to the trial court's ruling against her on Klatt's motion, Quiggle provides no record support, case law discussion or legal analysis for her assertions and arguments. Her arguments amount to another unmeaningful challenge to the trial court's order excluding her evidence. And Quiggle's points are interspersed with character attacks on Klatt as engaging in a "bad faith course of conduct. . . ." or acting to "harass and irreparably damage [her]." She argues the lead and asbestos contaminations still exist and need to be abated, and on that basis concludes that "when the court determined Quiggle had no reasonable probability of prevailing in this case, the matter was not yet ripe, and the court's decision was based on mere speculation, not based in fact." Applying the presumption of correctness to the trial court's order as we must, none of these assertions persuade us that reversal is required.

Finally, Quiggle points to the March 28, 2008 ruling of another Superior Court judge (Hon. Richard Strauss) in Quiggle v. Balabanian et al. (Super. Ct. S.D. County, No. 37-2007-00084042-CU-BC-CTL), denying defendant Nassereh Rouboubi's motion to declare Quiggle a vexatious litigant. She asserts the court in this case erred by ignoring that order and deeming her vexatious on Klatt's motion since she filed no litigation until the present action. Quiggle's argument is devoid of reasoned analysis, and we may again on that ground disregard the contention. But were we to reach the merits, we observe (as did the trial court in the present case) Judge Strauss's ruling was made under a different subdivision of the vexatious litigant statute: section 391, subdivision (b)(2) (see footnote 4 ante). Applying that provision, Judge Strauss ruled Quiggle was not challenging the validity of a prior decision or attempting to relitigate a cause of action, claim or controversy, or issue of fact or law concluded by final determination against the defendant. Quiggle presents no authority establishing that ruling is somehow binding on the trial court hearing Klatt's motion, and based on the differing grounds for the respective orders, we observe Judge Strauss's order is not inconsistent in any way with the vexatious litigant order at issue in this appeal.


The orders are affirmed.




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