Mora v. Fu CA1/1 ( 2023 )

Filed 3/28/23 Mora v. Fu CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publi-
cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or-
dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
WILLIAM MORA, A165682
Plaintiff and Appellant,
(San Francisco City
v. & County
TONY FU, Super. Ct. No. CGC-
21-594417)
Defendant and Respondent.
MEMORANDUM OPINION 1
Plaintiff William Mora appeals from a dismissal following an order
pursuant to Code of Civil Procedure section 391 et seq. declaring him a
vexatious litigant, ordering that he provide security and, if not posted,
automatic dismissal, and barring him from any further filings in propria
persona in California without approval of the presiding judge.
“[Code of Civil Procedure] [s]ection 391—the vexatious litigant
statute—‘ “was enacted ‘ “to curb misuse of the court system” ’ by ‘ “persistent
and obsessive” litigants.’ ” ’ [Citation.] As relevant here, a vexatious litigant
is one who, while self-represented, ‘ “repeatedly relitigates or attempts to
relitigate” matters already finally determined against them or “repeatedly
This appeal is appropriately resolved by memorandum opinion in
1
accordance with California Standards of Judicial Administration, section 8.1.
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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.” ’ ” (In re Marriage of Deal (2022) 80 Cal.App.5th
71, 77.)
The vexatious litigant statutes “provide two distinct and cumulative
remedies against vexatious litigants , both of which were invoked here. [Ci-
tation.] The first of these remedies is an order to furnish security , as de-
scribed in [Code of Civil Procedure] section 391.3. A defendant obtains this
remedy, as was done here, by bringing a motion under [Code of Civil Proce-
dure] section 391.1, which requires determinations that the plaintiff is a
vexatious litigant and that there is no reason able probability that he or she
will prevail on the merits in the action. If the court issues an order to furnish
security , the action is automatically stayed from the time the motion was
filed until 10 days after plaintiff posts the required security . ([Code Civ.
Proc.,] § 391.6.) If the plaintiff fails to post the security , the action ‘shall be
dismissed as to the defendant for whose benefit it was ordered furnished.’
([Code Civ. Proc.,] § 391.4.)” ( Golin v. Allenby (2010) 190 Cal.App.4th 616,
633–634 ( Golin ), fns. omitted.)
“[Code of Civil Procedure] [s]ection 391.7 provides the second and addi-
tional remedy. It authorizes the court to ‘enter a prefiling order which pro-
hibits a vexatious litigant from filing any new litigation in the cour ts of
this state in propria persona without first obtaining leave of the presiding
judge of the court where the litigation is proposed to be filed.’ ([Code Civ.
Proc.,] § 391.7, subd. (a).) The presiding judge may allow the filing of the new
action ‘only if it appears that the litigation has merit and has not been filed
for the purposes of harassment or delay. The presiding judge may condition
the fil ing of the litigation upon the furnishing of security for the benefit of
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the defendants as provided in [C ode of Civil Procedure] [s]ection 391.3.’
([Code Civ. Proc.,] § 391.7, subd. (b).)” ( Golin, supra, 190 Cal.App.4th at p.
634.)
“The trial court exercises its discretion in determining whether a per-
son is a vexatious litigant . Review of the order is acco rdingly limited and
the Court of Appeal will uphold the ruling if it is supported by substantial ev-
idence. . . . [We also] presume the order declaring a litigant vexatious is
correct and imply findings necessary to support the judgment.” ( Golin, supra
19 0 Cal.App.4th at p. 636.) “Likewise, a court’s decision that a vexatious
litigant does not have a reasonable chance of success in the action is based
on an evaluative judgment in which the court weighs the evidence. If there is
any substantial evidence t o support the court’s determination, it will be up-
held. [Citation.] But questions of statutory construction or interpretation
are still reviewed de novo, as are questions of law.” ( Ibid. )
In his motion seeking to have Mora declared a vexatious litigant, de-
fendant and respondent Tony Fu claimed Mora worked for a disbarred attor-
ney who, himself, had been declared a vexatious litigant, and that Mora had
commenced five meritless “litigation[s]” in propria persona within the preced-
ing seven years.2 Fu further maintained the instant lawsuit was also merit-
less and Mora should be required to post $20,000 in security. Fu additionally
requested that the court enter a prefiling order barring Mora from filing any
further actions in propria persona in California without the approval of the
2 Code of Civil Procedure section 391, subdivision (b)(1) defines a
vexatious litigant as one 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 have been brought to trial or hearing.”
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presiding judge. Fu supported his motion with a declaration attaching the
relevant pleadings from the five assertedly meritless litigations, as well as
frames of a security camera video that refuted Mora’s allegations that Fu fol-
lowed and harassed Mora.
Mora’s opposition memorandum consisted of three paragraphs that
collectively consumed a half-page. He advanced two arguments—(1) only
three of the cases listed by Fu were filed in California courts, and (2) Fu
presented no evidence the other two cases, filed in New Mexico courts, were
decided on the merits. In a half-page opposing declaration, Mora claimed the
allegations of his complaint in the instant action for assault—that Fu had
followed and harassed him—were true and Fu was “a liar.” He also asserted
that two of the California cases had not been “decided on the merits.”
In reply, Fu pointed out a vexatious litigant order can be based on
meritless or bad faith actions filed in California courts, federal courts, or the
courts of “any state.” (§ 391, subds. (a), (b)(3)–(4); see Fink v. Shemtov (2010)
180 Cal.App.4th 1160, 1170 (Fink) [citing to prior version of statute and
stating the term “ ‘litigation’ ” is broadly defined “as meaning ‘any civil action
or proceeding, commenced, maintained or pending in any state or federal
court’ ”].) He additionally pointed out prior “litigation” need not be resolved
on “the merits” to qualify as “adversely determined” to the litigant. (§ 391,
subd. (b)(1); see Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th
775, 779 [even a voluntary, unilateral dismissal that is not associated with a
settlement qualifies as “adversely determined” to the litigant].)
As we have recited, the trial court granted Fu’s motion, finding Mora to
be a vexatious litigant, requiring the posting of security, and issuing a pre-
filing order.
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Mora moved for reconsideration, asking the trial court to exercise its
“inherent authority” to reconsider prior rulings. His motion was devoted to
arguing that Fu’s version of events was false and his complaint for assault
was not meritless. Mora proffered six additional frames from the security
video that he claimed showed Fu “intentionally tailed” him to a bus stop and
thus showed his lawsuit was not meritless.
The trial court denied Mora’s motion for three reasons. First, it
declined to exercise its “inherent discretion” to revisit its prior order. Second,
it pointed out Mora had made no showing why his supposedly “new” evidence
(the additional security video frames) had not been presented at the prior
hearing. And, third, the new evidence he was proffering did not, in any case,
support and, in fact, further disproved, his allegations that Fu had
approached Mora and then followed and harassed him.
The Vexatious Litigant Determination
Mora challenges the trial court’s ruling that he suffered five adversely
determined litigations within the last seven years on two grounds.
He first claims one of the cases was “a criminal action.” However, as
Fu points out in his respondent’s brief, Mora made no argument in the trial
court that the litigation entitled City of Las Vegas v. William Mora, case No.
D-412-LR-201500002, was a criminal case and thus cannot count as one of
the five adversely determined litigations. Fu also correctly maintains that
having failed to advance this fact-based argument in the trial court, Mora has
forfeited the issue on appeal. (See Alvarez v. Altamed Health Services Corp.
(2021) 60 Cal.App.5th 572, 585 [because plaintiff did not make argument in
trial court, she forfeited the contention on appeal].) We therefore do not
address this contention further.
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Mora secondly claims two of the cases, William Mora v. Bryant Fu, case
No. CGC-20-583002, and William Mara v. Bryant Fu, case No. CGC-18-
568890, were not dismissed on the merits. However, Fu presented evidence
that both cases were involuntarily dismissed by the San Francisco Superior
Court. Thus, these were final, adverse determinations under the vexatious
litigant statute. (See Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406 [“A lit-
igation is finally determined adversely to a plaintiff if he does not win the ac-
tion or proceeding he began, including cases that are voluntarily dismissed by
a plaintiff.”]; Fink, supra, 180 Cal.App.4th at pp. 1173–1174 [involuntary dis-
missals of untimely appeals were final, adverse determinations].) Thus,
Mora’s claim that the first case was dismissed for not posting an undertaking
and the second, for not paying court fees, is immaterial—he did not win ei-
ther of the actions he began.
The No Reasonable Probability of Prevailing Determination
Mora also takes issue with the trial court’s ruling that he had no rea-
sonable probability of prevailing in the instant case. He insists the security
camera images that Fu presented to the trial court—to show that Mora’s
claims that Fu followed and harassed him were patently false and, in fact,
showed Mora following Fu—were selective and not an accurate depiction of
events. Fu’s version of events was that after he exited his son’s house, Mora
spotted him and “stalked” him to the bus stop, where the disbarred attorney
appeared and “attempted to batter Fu,” and was then arrested for violating a
civil restraining order. Mora asserts the six additional video images he prof-
fered to the trial court in support of his motion for reconsideration confirmed
his claim that Fu followed and harassed him.
Upon examining the video evidence (including the video frames belat-
edly proffered by Mora) and comparing it with Mora’s allegations, the trial
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court found the evidence did not show Fu following Mora, but the reverse. It
thus found Mora had “no reasonable probability of prevailing in this litiga-
tion.” Indeed, in its order denying Mora’s motion for reconsideration, the
court stated, “[T]he evidence still shows that plaintiff was following defend-
ant. This evidence totally undermines the allegations of plaintiff’s verified
complaint at paragraph 4, which allege that defendant approached plaintiff
and then began following/menacing plaintiff. In sum, the evidence belies
plaintiff’s allegations.” The court additionally pointed out “the fact that
plaintiff brought a nearly identical case against defendant’s son and the court
held that the video ‘cast[] doubt on Mora’s testimony in key respects’ further
shows the lack of merit of this case. (See Fu v. Fang, CGC-18-572347
(1/22/21 Statement of Decision).”
We entirely agree with the trial court’s assessment of the video
frames—they do not support Mora’s claim that Fu surreptitiously followed
Mora. Accordingly, the court’s finding that Mora had no reasonable probabil-
ity of prevailing in the instant case is supported by substantial evidence, and
it was well within the court’s discretion to order that security be posted.
DISPOSITION
The judgment of dismissal is AFFIRMED. Respondent to recover costs
on appeal.3
3 Respondent’s request for judicial notice filed on February 7, 2023, is
DENIED, as the materials sought to be noticed are immaterial to the
disposition of the appeal.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Swope, J.*
**Judge of the San Mateo County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
A165682, Mora v. Fu
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