Filed 4/28/16 McFadden v. City of Los Angeles CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


MARY MCFADDEN,                                                       B254992

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC493938)
         v.

CITY OF LOS ANGELES et al.,

         Defendants and Respondents.



         APPEAL from a judgment (order of dismissal) of the Superior Court of Los
Angeles County, Joseph R. Kalin, Judge. Affirmed in part, reversed in part, and
remanded with directions.
         Mary McFadden, in pro. per., for Plaintiff and Appellant.
         Michael N. Feuer, City Attorney, Terry Kaufmann-Macias, Assistant City
Attorney, Amy Brothers, Deputy City Attorney for Defendants and Respondents City of
Los Angeles, Andrew Adelman, Roxanne Wiles and Ben Mathias.
                                   _______________________________
       Plaintiff Mary McFadden appeals from an order dismissing this action for failure
to post a security bond after the trial court declared her a vexatious litigant. For the
reasons explained below, we affirm the portions of the order declaring McFadden a
vexatious litigant, imposing a prefiling order, and requiring her to post a security bond.
We reverse the portion of the order dismissing the action because the trial court did not
set a deadline for McFadden to post a bond before it dismissed the action based on her
failure to post a bond.
                                     BACKGROUND
       In October 2012, McFadden, in pro. per., filed this action against the Los Angeles
County Treasurer and Tax Collector (the County), challenging the pending public auction
of her property located at 1446 West 37th Drive in Los Angeles. According to the
complaint, the auction was scheduled for October 22-23, 2012.
       Although the complaint originally did not name the City of Los Angeles (the City)
as a defendant, the complaint included allegations that the Department of Building and
Safety of the City of Los Angeles (the Department) had wrongfully demolished
McFadden’s house (located at 1446 West 37th Drive) in 2005 without obtaining a court
order authorizing it to do so.
       On October 17, 2012, McFadden filed an ex parte application to stay the public
auction, which the trial court denied.
       In May 2013, McFadden amended her complaint to substitute the names of the
Department and three of the City’s employees (Andrew Adelman, Ben Mathias and
Roxanne Wiles) for Doe defendants 1-4.
       This is the fourth case McFadden has filed against the City concerning the
demolition of her house. In the first case (BS095404), filed on March 4, 2005,
McFadden filed a petition for writ of mandate challenging the decision by the Board of
Building and Safety Commissioners of the City of Los Angeles (the Board) that her
property constituted a public nuisance and that no additional time should be granted to
her to abate the property. The trial court denied the petition and the Court of Appeal



                                              2
affirmed on the merits. (McFadden v. Board of Building and Safety Commission (Mar.
13, 2009, B196818) [nonpub. opn.].)
       In the second case (BC345396), filed on January 4, 2006, McFadden filed an
action against the City, the Department, the Board, and Ben Mathias for inverse
condemnation, wrongful eviction and deprivation of civil rights arising from the Board’s
public nuisance determination and the subsequent demolition of her house. The trial
court granted the defendants’ motion for judgment on the pleadings and the Court of
Appeal affirmed on res judicata grounds. (McFadden v. City of Los Angeles (June 14,
2011, B222154) [nonpub. opn.].)
       In the third case (BC468177), filed on August 23, 2011, McFadden filed an action
against the City, the Department, the Board, Andrew Adelman, Ben Mathias, and
Roxanne Wiles. As set forth in the trial court’s order granting the defendants’ motion for
judgment on the pleadings in that case, McFadden alleged, among things, (1) that the
defendants prevailed in the first case (BS095404) “by lying to the court and concealing
various facts from” McFadden, and (2) “that there was never a final administrative
adjudication with respect to” her property. The court granted the motion on res judicata
grounds. McFadden appealed from the judgment, but later abandoned her appeal. The
appellate court dismissed the appeal at McFadden’s request.
       In June 2013, the County filed a motion for judgment on the pleadings in the
present action, which McFadden opposed. In July 2013, the City and its employees filed
demurrers to the complaint, which McFadden opposed.
       On September 5, 2013, the date of the hearing on the motion for judgment on the
pleadings and the demurrers, the trial court issued a tentative ruling granting the motion
with leave to amend and sustaining the demurrers without leave to amend. In its tentative
ruling, the court concluded McFadden’s action against the City and its employees was
barred by res judicata, explaining: “This is McFadden’s fourth case against the City, the
Department of Building and Safety, and the City employees involved with the demolition
decision on plaintiff’s house. The appeal in case No. BS095404 was decided against
plaintiff in March 2009, and two more cases by McFadden against the City (and its

                                             3
employees Adelman and Mathias for being in privity with the City) have already been
determined against McFadden on res judicata. [Citation.] This case also has to do with
the decision by the City to demolish plaintiff’s house. See Complaint, ¶¶ 18-24. It is
barred by res judicata.” The court also concluded McFadden’s action against the County
is barred because McFadden failed to comply with the California Tort Claims Act.
       The trial court did not issue a final ruling on the motion for judgment on the
pleadings and the demurrers because McFadden had a bankruptcy case pending. The
court continued the matters pending resolution of the bankruptcy case.
       On September 27, 2013, the City and its employees filed a motion for an order
declaring McFadden a vexatious litigant under Code of Civil Procedure section 391,
                          1
subdivisions (b)(2)-(3), for an order requiring McFadden to post a bond under section
391.1, and for a prefiling order prohibiting McFadden from filing new litigation in pro.
per. without obtaining leave of the presiding judge under section 391.7. The bankruptcy
court granted the City’s motion for relief from the automatic stay to pursue the vexatious
litigant motion. On January 8, 2014, after several continuances of the hearing date on the
motion, McFadden filed an opposition to the motion. She requested additional time to
hire an attorney.
       On January 9, 2014, the trial court held a hearing on the vexatious litigant motion.
The court denied McFadden’s request for a continuance to find an attorney, explaining
                                                                                 2
the court already had continued the matter so McFadden could hire an attorney. On the


       1
           Further statutory references are to the Code of Civil Procedure.
       2
         The hearing on the vexatious litigant motion originally was set for October 23,
2013. On October 18, 2013, the trial court continued the hearing to November 1, 2013
due to pendency of the bankruptcy proceedings. On November 1, 2013, the court
continued the hearing to December 12, 2013 because the bankruptcy proceedings had not
resolved. On December 12, 2013, McFadden sought a further continuance to hire an
attorney. The court set the hearing for January 9, 2014. McFadden had ample time
between September 27, 2013—the date the City and its employees filed the motion—and
January 9, 2014—the date the court heard the motion—to hire an attorney. The trial
court did not abuse its discretion in declining to grant a further continuance. (In re

                                               4
merits, the court ruled: “The motion to deem plaintiff McFadden a vexatious litigant is
granted. The plaintiff meets the definition of a vexatious litigant because she repeatedly
has attempted to relitigate the same case against the Defendant City of Los Angeles for
condemning and demolishing her house and has already lost in three prior cases and two
prior appeals, making this her fourth case. [¶] Plaintiff filed a nonsubstantive opposition
with this court after having been given extra time to do so but has not given the court any
arguments on the merits. Plaintiff Mary McFadden is hereby prohibited as a vexatious
litigant from filing any new litigation in the courts in this state in propria persona without
first obtaining leave of the presiding justice or presiding judge of the court where the
litigation is proposed to be filed. Disobedience of the court order by a vexatious litigant
may be punished as a contempt of court by CCP 391.7. [¶] Further, as there is no
reasonable probability the plaintiff will prevail in the litigation, plaintiff is ordered to post
a bond in the amount of $5,000 in order to proceed with the action under CCP 391.1 to
391.3. [¶] This case is automatically stayed from the time the motion was filed until ten
days after plaintiff posts the required security under CCP 391.6. If the bond is not
posted, the action will be dismissed as to the Defendant City of Los Angeles under CCP
391.4.” The trial court ordered the City to give notice of the ruling. The court did not
issue an order setting forth its ruling.
       On January 21, 2014, the City mailed McFadden notice of the January 9, 2014
ruling. Three days later, on January 24, 2014, the trial court dismissed the action with an
order stating: “The Court having after hearing found plaintiff Mary McFadden to be a
vexatious litigant by order of January 9, 2014 ordered her to post security of $5,000 and
the security not having been timely posted plaintiff’s lawsuit is dismissed pursuant to
                                                   [3]
Code of Civil Procedure Section 391.3(b) [sic].          [¶] Pursuant to Code of Civil


Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823 [“Reviewing courts must
uphold a trial court’s choice not to grant a continuance unless the court has abused its
discretion in so doing”].)
       3
        The statutory provision for dismissal of an action for failure to post a security
bond is section 391.4, not section 391.3, subdivision (b), as the trial court incorrectly

                                               5
Procedure section 391.7 plaintiff is ordered not to file any new litigation in any court
without first obtaining leave of the presiding judge of the court where the litigation is
proposed to be filed. Disobedience of this order by a vexatious litigant may be punished
as a contempt of court.”
                                        DISCUSSION
       McFadden appeals from the dismissal order, challenging the finding she is a
vexatious litigant, the imposition of a prefiling order, the requirement she post a security
bond, and the ultimate dismissal of her action.
       As defined in section 391, subdivision (b)(2), “Vexatious litigant” means a person
who, “[a]fter a litigation has been finally determined against the person, repeatedly
relitigates or attempts to relitigate, in propria persona, either (i) the validity of the
determination against the same defendant or defendants as to whom the litigation was
finally determined or (ii) the cause of action, claim, controversy, or any of the issues of
fact or law, determined or concluded by the final determination against the same
defendant or defendants as to whom the litigation was finally determined.” This is the
fourth case McFadden, in pro. per., has litigated against the City concerning the
demolition of her house. In each of the prior three cases, the City prevailed on the merits.
The trial court did not abuse its discretion in declaring McFadden a vexatious litigant.
(Golin v. Allenby (2010) 190 Cal.App.4th 616, 636 [“The trial court exercises its
discretion in determining whether a person is a vexatious litigant. Review of the order is
accordingly limited and the Court of Appeal will uphold the ruling if it is supported by
substantial evidence”].)
       Having properly determined McFadden is a vexatious litigant, the trial court did
not err in imposing a prefiling order, as requested by the City and its employees. (§
391.7, subd. (a) [“the court may, on its own motion or the motion of any party, enter a
prefiling order which prohibits a vexatious litigant from filing any new litigation in the

cited. The latter provision governs dismissal of an action after the court determines the
action is without merit and was filed for purposes of harassment or delay, which is not
the reason the court stated for dismissing this action.

                                                6
courts of this state in propria persona without first obtaining leave of the presiding justice
or presiding judge of the court where the litigation is proposed to be filed”].)
       Nor did the trial court err in requiring McFadden to post a $5,000 security bond.
As provided in section 391.3, subdivision (a), “if, after hearing the evidence upon the
motion, the court determines that the plaintiff is a vexatious litigant and that there is no
reasonable probability that the plaintiff will prevail in the litigation against the moving
defendant, the court shall order the plaintiff to furnish, for the benefit of the moving
defendant, security in such amount and within such time as the court shall fix.” The trial
court’s conclusion McFadden does not have a reasonable probability of prevailing in this
action is proper. In the three prior actions McFadden filed against the City regarding
demolition of her house, the City prevailed on the merits, the last two times on res
judicata grounds. 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 v. Allenby, supra, 190 Cal.App.4th at p. 636.)
       The trial court did err, however, in failing to set the deadline for McFadden to post
a bond. As quoted above, under section 391.3, subdivision (a), where a court orders a
plaintiff to post a bond, “the court shall fix” the time within which the plaintiff must post
the bond. Here, the trial court ruled on January 9, 2014, that McFadden must post a bond
in the amount of $5,000 in order to proceed with the action, but the court set no deadline
for McFadden to post the bond. The court did not comply with the statutory requirements
of section 391.3, subdivision (a).
       The trial court did not issue an order setting forth its January 9, 2014 ruling on that
date. The court ordered the City to give notice of the ruling (although McFadden was
present when the court stated its ruling). On January 21, 2014, the City mailed
McFadden a notice of ruling stating, in pertinent part, “as there is no reasonable
probability the Plaintiff will prevail in the litigation, Plaintiff is ordered to post a bond in
the amount of $5,000 in order to proceed with this action under Code of Civil Procedure
sections 391.1 to 391.3. This case is automatically stayed from the time the motion was

                                                7
filed until ten days after plaintiff posts the required security under CCP 391.6. If the
bond is not posted, the action will be dismissed as to the DOE Defendants City of Los
                                                                                           4
Angeles, Wiles, Adelman, and Mathias under Code of Civil Procedure section 391.4.”
As the court did not fix the time within which McFadden must post a bond, the City’s
notice of ruling did not set forth a deadline for McFadden to post a bond.
       On January 24, 2014, only three days after the City mailed McFadden notice of the
January 9, 2014 ruling, the trial court dismissed McFadden’s action for failure to post a
bond. The dismissal of McFadden’s action was error and must be reversed. The trial
court could not dismiss McFadden’s action for failure to post a bond without first setting
                                                                                               5
a deadline for McFadden to post a bond, as required under section 391.3, subdivision (a).
       Moreover, the order for McFadden to post a bond applied only to McFadden’s
action against the City and its employees, “the defendant[s] for whose benefit [the bond]
was ordered furnished.” (§ 391.4.) That order did not apply to McFadden’s action
against the County, as confirmed in the trial court’s January 9, 2014 ruling: “If the bond
is not posted, the action will be dismissed as to the DOE Defendants City of Los Angeles,
Wiles, Adelman, and Mathias under Code of Civil Procedure section 391.4.”
Nonetheless, the trial court dismissed the entire action. The court had no cause to dismiss
McFadden’s action against the County based on McFadden’s failure to post a bond that
was ordered for the benefit of the City and its employees.
       On remand, McFadden may not challenge the portions of the order declaring her a
vexatious litigant, imposing a prefiling order, or requiring her to post a $5,000 security
bond for the benefit of the City and its employees, as we have affirmed those portions of

       4
         Section 391.4 states: “When security that has been ordered furnished is not
furnished as ordered, the litigation shall be dismissed as to the defendant for whose
benefit it was ordered furnished.”
       5
          The March 21, 2016 request for judicial notice McFadden filed in support of her
letter brief addressing this issue (the trial court’s dismissal of the action without first
setting a deadline for her to post a bond) is denied. The documents McFadden submitted
with her request for judicial notice are not necessary to our resolution of this issue.

                                              8
the order on the merits. In accordance with section 391.3, subdivision (a), the trial court
is directed to fix the time within which McFadden must post the bond.
                                      DISPOSITION
       The portions of the order declaring McFadden a vexatious litigant, imposing a
prefiling order, and requiring her to post a $5,000 security bond for the benefit of the City
and its employees are affirmed. The dismissal of the action is reversed as to all
defendants. On remand, the trial court is directed to fix the time within which McFadden
must post the bond in accordance with section 391.3, subdivision (a). Each side is to bear
its own costs on appeal.
       NOT TO BE PUBLISHED.




                                                         CHANEY, J.


We concur:



              ROTHSCHILD, P. J.



              LUI, J.




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