Wilkins v. Smith CA5

Filed 6/7/23 Wilkins v. Smith CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
KEENAN WILKINS,
F082992
Plaintiff and Appellant,
(Super. Ct. No. BCV-20-100136)
v.
ORDER MODIFYING OPINION
K. SMITH, et al., AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
Defendants and Respondents.
THE COURT:
It is ordered that the opinion filed herein on May 25, 2023, be modified in the
following particulars:
1. On page 6, the first full sentence which reads “Wilkins has essentially
forfeited …” is deleted and the following sentences are inserted in its place:
“[A] petition for writ of mandate is the exclusive method of obtaining review of a
denial of a judicial disqualification motion.” (People v. Mayfield (1997) 14 Cal.4th 668,
811, emphasis added.) We have no occasion to review this claim on appeal.”
2. On the bottom of page 6, insert the following language as a second paragraph
to footnote 10:
In a petition for rehearing filed on June 5, 2023,
Wilkins correctly pointed out he previously sought review via
a writ of mandate. This court denied the writ on June 10,
2021 (F082596), and the Supreme Court denied review on
August 26, 2021 (S269451). Nonetheless, the claim is not
appealable. (§ 170.3, subd. (d).)
There is no change in the judgment. Appellant’s petition for rehearing is denied.
SNAUFFER, J.
WE CONCUR:
LEVY, Acting P. J.
DE SANTOS, J.
2.
Filed 5/25/23 Wilkins v. Smith CA5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
KEENAN WILKINS,
F082992
Plaintiff and Appellant,
(Super. Ct. No. BCV-20-100136)
v.
K. SMITH, et al., OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
Keenan Wilkins, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Monica N. Anderson, Assistant Attorney General,
Alicia A. Bower, David C. Goodwin, Misha D. Igra, and George R. Morris, Deputy
Attorneys General, for Defendant and Respondent.
-ooOoo-
Keenan Wilkins, a California state prisoner, sued several prison officials after he
claimed they subjected him to a “degrading/humiliating/unreasonable”1 search.
Wilkins’s filings are handwritten. We take slight liberty to correct capitalization
1
and punctuation while quoting his writing throughout this opinion.
Ultimately, the defendants, represented by the Attorney General, moved to declare
Wilkins a vexatious litigant and to require him to furnish security to proceed with the
lawsuit. (Code Civ. Proc.,2 §§ 391.1 & 391.3.)
The trial court granted the defendants’ motion in its entirety and, after Wilkins
failed to post security, dismissed the case. (See § 391.4 [dismissal remedy].) Wilkins
appeals, raising a variety of issues detailed below. We affirm the judgment.
BACKGROUND
While in prison, Wilkins was searched by prison officials. He described the
search as a “degrading/humiliating/unreasonable act in the ‘nude’ in front of so many
people --- including ‘women’.”3 He added that he was “coerced” and “threaten[ed]” into
compliance, otherwise “he would not get” to his “destination” at “California Health Care
Facility.”
Amended Complaint4
Wilkins filed an amended complaint on August 19, 2020.5 He alleged several
causes of action including First, Fourth, and Eighth Amendment violations, privacy
invasion (Civ. Code, § 43), interference with constitutional rights (Civ. Code, § 52.1),
intentionally inflicting emotional distress, and mental anguish. The complaint sought
injunctive relief and unspecified “compensatory” and “punitive” damages.
2 Undesignated statutory references are to the Code of Civil Procedure.
3 This description is contained within the amended complaint.
The Attorney General demurred to Wilkins’s original complaint and the
4
demurrer was sustained with leave to amend.
5 Unless otherwise stated, all references to dates are to dates in 2020.
2.
Attempted Default Filing
On September 30, Wilkins filled out a “request for entry of default” form.6 The
request was filed on October 5, but returned on October 9 because it listed the incorrect
date for the amended complaint and the “Statement of Damages [was] missing.”
Vexatious Litigant Motion
The Attorney General moved to declare Wilkins a vexatious litigant on
October 14. The court ultimately judicially noticed 16 recent cases involving Wilkins,
found all 16 were “finally and adversely determined against him,” and declared Wilkins a
vexatious litigant. The court also ordered Wilkins to “furnish security in the amount of
$15,000 within 20 days of entry of [the] order ….”
Dismissal
Wilkins failed to post the security as ordered. The court subsequently dismissed
the case upon the Attorney General’s motion.
DISCUSSION
We address Wilkins’s claims in the following order. First, was Wilkins entitled to
a default judgment? Second, did the trial judge err by not disqualifying himself from the
case? Third, did the court err in finding Wilkins was a vexatious litigant? Fourth, did the
court err in concluding Wilkins lacked a reasonable probability to succeed, effectively
dismissing the case?
Because we find no merit in any contention, Wilkins is not entitled to relief. We
will affirm the judgment.
6 CIV-100 is the official request for default form approved for mandatory use by
the Judicial Council of California. (Cal. Rules of Court, rule 3.1800(a).)
3.
I. No Default Judgment
Wilkins contends “defendants defaulted by failing to timely answer.” The
Attorney General claims Wilkins “was not entitled to default.” The Attorney General is
correct.
“When a complaint alleges damages for personal injury, the plaintiff must serve
on the defendant a statement setting forth the nature and amount of damages being sought
before a default may be taken.” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852,
860.) The statement “ ‘ “ ‘give[s] defendants “one last clear chance” to respond to
allegations of complaints by providing them with “actual” notice of their exact potential
liability.’ ” ’ ” (Ibid.; Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1520-1521; see
§§ 425.11 & 425.115.)
Here, Wilkins’s request for default was rejected because there was no damages
statement. The record does not contain any evidence he filed and served a damages
statement.7 (See § 425.11, subd. (d) [requiring service].) Accordingly, he was not
entitled to a default judgment.8
II. Judicial Disqualification Motion Not Appealable
Wilkins claims the “presiding judge lacked power to act.” He “asserts that the
clear unambiguous record demonstrates that he served/filed a challenge for cause against
Presiding Judge Lampe on 1/31/21.” The Attorney General argues Wilkins’s challenge
7After the Attorney General moved to declare Wilkins a vexatious litigant,
Wilkins did file a damages statement and again requested default. But the Attorney
General’s filing stayed the litigation. (§ 391.6.)
8 The Attorney General further points out it was not served with the amended
complaint until September 18. The record is not clear enough to decipher proof of
service. We note Wilkins later, while litigating the default issue in the trial court,
indicated he utilized section 415.30 to serve the complaint by mail. But the
accompanying “acknowledgement of receipt” form is incomplete. (§ 415.30, subds. (c),
(d), & (e); see Judicial Council of California form POS-015 [mandatory “notice and
acknowledgment of receipt” form.)
4.
was “untimely,” did not comply with service, and the issue is not reviewable on appeal.
We agree the claim is not reviewable on direct appeal.
A. Additional Background
After the court found Wilkins was a vexatious litigant, Wilkins filed a “statement
for disqualification of judge CCP 170.1(6)(iii) [sic].” In the statement, Wilkins alleged it
was “impossible to have fair proceedings before this judge, who is clearly aligned with
the Defense against Plaintiff.” The statement concludes by reiterating it “presents [a]
challenge for cause under Penal Code 170.1(a)(6(A) [sic] ….”
The court originally denied the “Peremptory Challenge [as] untimely per CCP
170.6 ….”9 Several weeks later, the court “re-reviewed the matter” and, after “re-reading
the document,” understood it to present “a challenge for cause.” The court then
“refuse[d] to consider” the matter because it was improperly served. (See § 170.3, subd.
(c)(1) [“Copies of the statement shall be served on each party or his or her attorney who
has appeared and shall be personally served on the judge alleged to be disqualified, or on
his or her clerk, provided that the judge is present in the courthouse or in chambers.”].)
B. Analysis
“The determination of the question of the disqualification of a judge is not an
appealable order and may be reviewed only by a writ of mandate from the appropriate
court of appeal sought only by the parties to the proceeding.” (§ 170.3, subd. (d);
People v. Nieves (2021) 11 Cal.5th 404, 498, fn. 13 [“statutory right to impartiality is
raised through a motion to disqualify an assertedly biased judge …, the resolution of
9
See section 170.6, subdivision (a)(2), describing timeliness for so-called
peremptory challenges.
5.
which is reviewable only be writ of mandate”].) Wilkins has essentially forfeited this
claim by first raising it on direct appeal.10
III. No Error In Vexatious Finding
As noted, the Attorney General proffered 16 then-recent cases adversely
determined against Wilkins to allege Wilkins was a vexatious litigant. (§ 391, subd. (b).)
As he did then and now, Wilkins asserted only one case qualified for vexatious litigant
status. (Ibid.) The trial court, of course, found all 16 cases qualified and deemed Wilkins
a vexatious litigant. We find no reversible error.
“ ‘ “The vexatious litigant statutes were enacted to require a person found a
vexatious litigant to put up security for the reasonable expenses of a defendant who
becomes the target of one of these obsessive and persistent litigants whose conduct can
cause serious financial results to the unfortunate object of his attack. The purpose of the
statutory scheme is to deal with the problem created by the persistent and obsessive
litigant who has constantly pending a number of groundless actions, often against the
judges and other court officers who decide or were concerned in the decision of previous
actions adversely to him.” ’ ” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 634
(Golin).) “ ‘Their abuse of the system not only wastes court time and resources but also
prejudices other parties waiting their turn before the courts.’ ” (Id. at p. 635.)
Relevant here, a vexatious litigant is a person 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 … finally determined
adversely to the person ….” (§ 391, subd. (b)(1).) Litigation “means any civil action or
proceeding, commenced, maintained or pending in any state or federal court.” (§ 391,
subd. (a).)
10 Our conclusion applies notwithstanding the fact the court never ruled on the
motion—it instead “refuse[d] to consider” the motion. This difference is immaterial
relative to section 170.3.
6.
“ ‘A court exercises its discretion in determining whether a person is
a vexatious litigant. [Citation.] … On appeal, we presume the order declaring a litigant
vexatious is correct and imply findings necessary to support the judgment.’ ” (In re
Marriage of Deal (2020) 45 Cal.App.5th 613, 621.)
Having reviewed the record, we are satisfied the trial court correctly found at least
five litigations within seven years were finally determined adverse to Wilkins. Contrary
to Wilkins’s argument, a final adverse determination includes denial of a writ of certiorari
in the United States Supreme Court. (Cf. Fink v. Shemtov (2010) 180 Cal.App.4th 1160,
1172-1173 (Fink) [“summary denial of a writ petition that merely sought relief from
pretrial rulings and did not constitute the exclusive means of obtaining appellate review
would not qualify as a litigation finally determined adversely[.]”].)11
Wilkins correctly notes, on the other hand, an attempted filing in federal court
which is rejected does not constitute a litigation. (Garcia v. Lacey (2014)
11 Strictly speaking, the appellate record does not contain the 16 cases at issue.
But those cases are described within various filings in the record. Pursuant to Evidence
Code section 452, subdivision (d), we judicially notice the following cases: 1) Wilkins v.
USDC-SAC (9th Cir. Jun. 25, 2020, No. 20-71369); 2) Wilkins v. County of Alameda
(9th Cir. Mar. 17, 2014, No. 13-17060); 3) Wilkins v. Gonzalez (E.D. Cal. May 4, 2018,
No. 2:16-cv-347-KJM-KJN); 4) Wilkins v. Gonzalez (9th Cir. Aug. 31, 2018, No. 18-
15643); 5) Wilkins v. Gonzalez (2019) 139 S.Ct. 1272 (Mem.); 6) Brown v. Galvin
(E.D. Cal. Feb. 7, 2019, No. 2:16-cv-02629); 7) Brown v. Galvin (9th Cir. Jul. 31, 2019,
No. 19-15468);8) Brown v. Galvin (2020) 140 S.Ct. 2759 (Mem.); 9) Wilkins v.
Baughman (E.D. Cal. Feb. 6, 2019, No. 2:17-cv-1368); 10) Wilkins v. Baughman
(9th Cir., Sept. 18, 2019, No. 19-15344); 11) Wilkins v. USDC-CASF (9th Cir. Sept. 19,
2018, No. 18-71956); 12) Wilkins v. County of Stanislaus (9th Cir. Apr. 24, 2019,
No. 18-16232; 13) Wilkins v. County of Stanislaus (2019) 140 S.Ct. 670 (Mem.);
14) Wilkins v. USDC-CASF (9th Cir. Apr. 14, 2014, No. 13-73523; 15) Wilkins v.
Alameda County (N.D. Cal. Mar. 11, 2015, No. 5:14-cv-2516); and 16) Wilkins v.
McGuire (S.D. Cal. Oct. 10, 2017, No. 3:17-cv-1385).
Even if we discount successive appeals within the same case, there remain more
than five distinct finally determined adverse actions. (But see Fink, supra,
180 Cal.App.4th at p. 1173 [two appeals from same case count as two litigations].)
7.
231 Cal.App.4th 402, 412.) But none of Wilkins’s federal cases were rejected—meaning
his federal filings were successfully initiated, but later dismissed or denied. In sum, the
trial court did not err in finding Wilkins was a vexatious litigant.
IV. No Error In Requiring Security
Wilkins argues the “security order was error” and “the court asserted without
reasoning/explanation that [he] did not have a reasonable probability of prevailing ….”
The Attorney General contends otherwise, and we agree.
“Section 391.1 permits a defendant to move for an order requiring a plaintiff to
post security. Under section 391.3, if the court determines that the plaintiff is a vexatious
litigant and has no reasonable probability of prevailing, it shall require the plaintiff to
post security.”12 (Singh v. Lipworth (2005) 132 Cal.App.4th 40, 44, fns. omitted.) The
motion “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 they will prevail in
the litigation against the moving defendant.” (§ 391.1, subd. (a).)
In ruling on a motion to furnish security, the court does not simply “assume the
truth of [the] plaintiff’s alleged facts ….” (Moran v. Murtaugh Miller Meyer & Nelson,
LLP (2007) 40 Cal.4th 780, 782.) Rather, “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 to
support the court’s determination, it will be upheld.” (Golin, supra, 190 Cal.App.4th at
p. 636; Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1148 [“[w]e presume that the
12 Security “means 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).)
8.
court’s order is supported by the record” if there exists substantial evidence supporting
it].)
The record here supports the trial court’s order. Most importantly, the Attorney
General disputed the allegations and the trial court had the opportunity to personally
observe Wilkins. While it is true the appellate record does not contain a reasoned
decision on the probability-of-success issue, no such decision is required. (See Golin,
supra, 190 Cal.App.4th at p. 636 [appellate court “impl[ies] findings necessary to support
the judgment”].) We hold the trial court was within its right to find Wilkins did not have
a reasonable chance to succeed on his lawsuit.
In so holding, we acknowledge prisoners “retain some Fourth Amendment
rights ….” (Bell v. Wolfish (1979) 441 U.S. 520, 558; People v. Robinson (2010)
47 Cal.4th 1104, 1120 [“ ‘convicted criminals do not enjoy the same expectation of
privacy that nonconvicts’ have”].) We hold the trial court here did not abuse its
discretion in finding Wilkins was unlikely to succeed on his claims prison officials
violated his rights while conducting a search.
DISPOSITION
The judgment is affirmed. Each party to bear its costs.
SNAUFFER, J.
WE CONCUR:
LEVY, Acting P. J.
DE SANTOS, J.
9.