Filed 8/23/16 Decker v. Pulapkura CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----



ANDREW DECKER,                                                                               C076771

                   Plaintiff and Appellant,                                        (Super. Ct. No. 178701)

         v.

SOLOMON PULAPKURA,

                   Defendant and Respondent.




         The trial court found plaintiff Andrew Decker to be a vexatious litigant pursuant to
Code of Civil Procedure section 391, subdivision (b)(3)1 and ordered him to furnish
security for the benefit of defendant Solomon Pulapkura pursuant to section 391.3. When
Decker failed to furnish security as required, the trial court entered a judgment dismissing
Decker’s complaint against Pulapkura pursuant to section 391.4. On appeal, Decker



1        Undesignated statutory references are to the Code of Civil Procedure.

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challenges the constitutionality of Code of Civil Procedure section 391 et seq. generally
(hereinafter referred, at times, as the vexatious litigant statutes), and specifically, section
391, subdivision (b)(3), and further contends the trial court violated his constitutional
rights and committed reversible errors in finding him a vexatious litigant. We find
Decker’s contentions meritless and affirm the judgment of dismissal.
                   FACTUAL AND PROCEDURAL BACKGROUND
       The record on appeal does not include a reporter’s transcript. Accordingly, we
treat this as a “judgment roll” appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082;
Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) The limited record we
have establishes the following:
       In November 2013, Decker filed the instant action against Pulapkura, alleging that
Pulapkura, Decker’s former supervisor, negligently inflicted emotional distress by
initiating a “religious-theme conversation” with him, writing him a letter about a dream
Pulapkura had wherein Decker asked Pulapkura about God, and providing him with
religious materials.
       Pulapkura moved for an order requiring Decker to furnish security, to obtain a
prefiling order, or, in the alternative, for dismissal of the action pursuant to section 391,
subdivision (b)(2) because the trial court had already finally determined Decker’s claim
was barred.2 In support of his motion, Pulapkura presented evidence of the following:
       1.     In October 2012, Decker and VESTRA Resources Inc. (VESTRA) entered
into a settlement agreement and release in which Decker was paid $7,000 to release the


2      Section 391, subdivision (b)(2) provides that a person is a vexatious litigant if,
“[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
defendant as to whom the litigation was finally determined.”

                                               2
company, and all of its employees, among others, from any liability relating to Decker’s
employment with or separation from the company, among others.
       2.     In March 2013, Decker filed an action against Pulapkura, case No. 176788,
alleging intentional infliction of emotional distress based on the same religious
conversations and communications between Pulapkura and Decker. Pulapkura
successfully demurred to Decker’s complaint on the basis of workers’ compensation
exclusivity and insufficiency of the pleadings, and the trial court entered judgment in
favor of Pulapkura in this action on August 1, 2013.
       3.     In March 2013, Decker also sued VESTRA and its attorney, in case No.
176787, seeking rescission of a settlement agreement allegedly obtained as a result of
duress and coercion, and damages for intentional infliction of emotional distress,
religious discrimination, and wrongful termination relative to the same religious
conversations and communications between Pulapkura and Decker, as well as intentional
infliction of emotional distress based on communication from VESTRA’s counsel
regarding Decker’s earlier litigation against VESTRA. The trial court granted
VESTRA’s special motion to strike the pleadings pursuant to the anti-SLAPP statutes
(§ 425.16 et seq.), finding plaintiff had not established a probability of prevailing based
on the claim he had entered into the settlement agreement under duress based solely on a
letter from VESTRA’s counsel because the letter was protected activity. VESTRA’s
counsel also successfully demurred to the complaint. The trial court entered judgment in
favor of VESTRA and its counsel on August 5, 2013. Decker unsuccessfully appealed a
subsequent order awarding VESTRA attorney fees associated with this action.
       4.     In June 2013, Decker wrote an e-mail to VESTRA and Pulapkura’s counsel
indicating that regardless of whether he won or lost his suit, he would consider himself to
have been successful, and that he was planning to file another suit against Pulapkura’s
“church.” A couple of weeks later, Decker wrote another e-mail threatening to pursue a
complaint with the State Bar regarding VESTRA and Pulapkura’s counsel regardless of

                                              3
the outcome of the litigation against Pulapkura. The e-mail then denigrates counsel and
VESTRA using a variety of unseemly personal and professional insults.
       5.     After judgment was entered against him in both March 2013 actions,
Decker sent another e-mail to VESTRA and Pulapkura’s counsel, and copied owners and
employees of VESTRA. In it, he uses needlessly offensive, explicit, and derogatory
language that we decline to memorialize here. Suffice it to say, Decker rejoiced in his
ability “to cuss you all [the addressees] out in emails because I can,” and then he spewed
a litany of disparaging remarks, including his desire to see counsel and the parties die so
that he could desecrate their graves. He also revealed a plan to avoid earning any income
so that he could persist in his pursuit of unnecessary and frivolous litigation against the
parties without consequence.
       6.     In October 2013, VESTRA obtained a workplace violence restraining order
against Decker, prohibiting him from harassing its employees and counsel and their
families. After the workplace restraining order was sought, Decker sent another e-mail to
the attorney. In it he claimed he would sue the attorney again for damages, and continued
to threaten to sue Pulapkura’s church.
       7.     Prior to filing the instant action, Decker offered to forebear filing the
complaint if VESTRA would agree not to collect any fees from Decker. In the e-mail
offering not to file his complaint, Decker also indicated he was contemplating filing
actions against the attorney, Pulapkura’s church and several other VESTRA employees
personally, and to report VESTRA for false billings to the State Auditor. Decker wrote,
“I’m going to ramp up ramp up ramp up . . . I’ve been barking for too long.” He also
intimated that he was and had plans to continue to make it impossible for Pulapkura or
VESTRA to recover any costs or fees from him. A couple weeks later, in mid-November
2013, Decker wrote to the attorneys again, stating that he would file against Pulapkura
again, and Pulapkura’s church, and Pulapkura’s wife. The e-mail continued to denigrate
the attorneys with coarse and inappropriate language.

                                              4
       8.     After he filed the instant action, he wrote to the attorney again, indicating
his willingness to pursue an appeal if Pulapkura successfully demurred, his readiness to
sue other individual employees of VESTRA, and his continued pursuit of claims with the
State Bar and State Auditor. In this e-mail, Decker stated, “Someday I’ll petition the
Supreme Court I’m sure, for what cause I have no idea yet.” He also stated, “I’ll sue the
sun for coming up. . . . I’ll take a $100[,000] loss to my grave knowing I went down on
my terms. . . . And this cycle will continue and continue.” He further mocked the
judicial process by scoffing at the restraining order obtained against him.
       Decker objected to Pulapkura’s motion, arguing (contrary to the trial court’s prior
ruling) that his claim was not barred by workers’ compensation exclusivity because
Pulapkura’s conduct “exceed[ed] the normal risks of the employment relationship,” that
there had been no final determination of his instant cause of action, and that he did not
meet the statutory definition of a vexatious litigant. The trial court apparently issued an
order on February 3, 2014; however, that order is not contained in the record before us on
appeal, and the order was vacated by the trial court’s February 13, 2014 minute order in
which it continued the hearing on Pulapkura’s motion to March 3, 2014, finding Decker
did not receive adequate notice of the prior hearing date and time.
       In advance of the continued hearing, the trial court issued a tentative ruling
indicating its finding that Decker had not engaged in relitigation of a finally determined
issue, but indicating that in light of the evidence presented in support of the motion, the
trial court believed Decker had “engaged in tactics that are frivolous or tactics intended
solely to cause unnecessary delay, and, even worse, in bad faith,” rendering him a
vexatious litigant pursuant to section 391, subdivision (b)(3). The trial court further
indicated it did not appear Decker had a reasonable probability of prevailing in the instant
action; thus, it stated its intention of requiring him to furnish security of $35,000 in the
instant action. However, because it was proceeding under a different theory than that



                                               5
proposed by Pulapkura, the trial court set a schedule for further briefing and continued
the hearing to March 24, 2014.
       Decker submitted a brief arguing that the vexatious litigant statutes as a whole and
section 391, subdivision (b)(3) in particular are unconstitutional and that neither
Pulapkura nor the trial court had shown him to be a vexatious litigant pursuant to section
391, subdivision (b)(3). Pulapkura argued Decker was a vexatious litigant pursuant to
section 391, subdivision (b)(3) because he had not only maintained multiple meritless
actions attempting to relitigate decided issues, but threatened “endless litigation” against
VESTRA and its employees and barraged them with “rude, obnoxious, threatening and
extortionate correspondence.”
       Following the briefing of the parties, the trial court issued an order dated April 8,
2014, finding Decker to be a vexatious litigant as defined in Code of Civil Procedure
section 391, subdivision (b)(3). The trial court further found there was “no reasonable
probability” that Decker would prevail in his litigation, and ordered Decker, pursuant to
section 391.3, subdivision (a), “to furnish security for the benefit of [Pulapkura] in the
amount of $35,000 to assure payment of reasonable litigation expenses in the event
[Pulapkura] prevails in this action. The amount of $35,000 must be furnished no later
than 20 days from service of notice of entry of order requiring security. If the security is
not furnished, the action will be dismissed.” The trial court explicitly declined to subject
Decker to a prefiling order pursuant to section 391.7.
       On May 19, 2014, the trial court held a hearing regarding the status of Decker’s
provision of security. Following the hearing, on June 6, 2014, the trial court entered an
order finding Decker had failed to furnish the ordered security and dismissing Decker’s
action against Pulapkura pursuant to section 391.4. And, on June 24, 2014, the trial court
entered a judgment of dismissal for failure to furnish security pursuant to section 391.4.




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       On June 24, 2014, Decker appealed challenging the trial court’s dismissal of his
action for failure to furnish security pursuant to sections 391.3 and 391.4 of the Code of
Civil Procedure.3
                                      DISCUSSION
       On appeal, we must presume the trial court’s judgment is correct. (People v.
Giordano (2007) 42 Cal.4th 644, 666.) Thus, we must adopt all inferences in favor of the
judgment, unless the record expressly contradicts them. (See Brewer v. Simpson (1960)
53 Cal.2d 567, 583.) The party challenging a judgment bears the burden to provide an
adequate record to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122,
1140-1141.) When an appeal is “on the judgment roll,” (Allen v. Toten, supra,
172 Cal.App.3d at p. 1082) we must conclusively presume evidence was presented that is
sufficient to support the court’s findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147,
154.) Our review is limited to determining whether any error “appears on the face of the
record.” (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510,
521; Cal. Rules of Court, rule 8.163.) These restrictive rules of appellate procedure apply
to Decker even though he is representing himself on appeal. (Wantuch v. Davis (1995)
32 Cal.App.4th 786, 795; Leslie v. Board of Medical Quality Assurance (1991)
234 Cal.App.3d 117, 121; Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.)
       “ ‘The vexatious litigant statutes (§§ 391 – [391.8]) are designed to curb misuse of
the court system by those persistent and obsessive litigants who, repeatedly litigating the
same issues through groundless actions, waste the time and resources of the court system
and other litigants. [Citation.] Sections 391 to 391.6 were enacted in 1963, while section
391.7 . . . was added in 1990. [Citations.] [¶] “Vexatious litigant” is defined in section
391, subdivision (b) as a person who has, while acting in propria persona, initiated or




3      The request for judicial notice filed by defendant on January 20, 2015, is denied.

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prosecuted numerous meritless litigations, relitigated or attempted to relitigate matters
previously determined against him or her, repeatedly pursued unmeritorious or frivolous
tactics in litigation, or who has previously been declared a vexatious litigant in a related
action.’ [Citation.]” (In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339,
1345.) When a person has been deemed a vexatious litigant, they may be required to
furnish security when they have no reasonable probability of prevailing against the
defendant (§ 391.1) and they may be subjected to a prefiling order (§ 391.7). Where a
vexatious litigant has been required to furnish security and fails to do so, the trial court
must dismiss the action. (§ 391.4.)
       Here, Decker challenges the constitutionality of the vexatious litigant statutes
generally, and specifically challenges the constitutionality of section 391, subdivision
(b)(3). Decker further contends the trial court erred in finding him a vexatious litigant
and in requiring him to furnish security. For the reasons stated below, we reject all of
these claims.
                                               I
                      Constitutionality of Vexatious Litigant Statutes
       Decker claims section 391 et seq., including specifically section 391, subdivision
(b)(3), are unconstitutionally vague, are premised on a discriminatory classification, may
not be applied to him because he lacked fair notice of the statutory scheme, and pose an
unlawful “chilling effect” on his right to access the courts. We conclude the language of
section 391, subdivision (b)(3) is abundantly clear, the application of the vexatious
litigant statutes to those appearing in propria persona only is not discriminatory, Decker
had sufficient notice of the statutes, and his access to the courts has not been unlawfully
chilled.




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       A.     Vagueness
       Decker contends section 391, subdivision (b)(3) is unconstitutionally vague,
essentially because he did not understand it. Section 391, subdivision (b)(3) defines a
“ ‘vexatious litigant’ ” as someone who, “[i]n any litigation while acting in propria
persona, repeatedly 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.” Decker specifically objects to the inclusion of the terms
“ ‘tactics that are frivolous’ ” and “ ‘repeatedly files other papers.’ ” A reading of this
language in the context of the statute and in light of common English usage renders this
attack groundless.
       “ ‘Frivolous’ ” is statutorily defined elsewhere as “totally and completely without
merit or for the sole purpose of harassing an opposing party.” (§ 128.5, subd. (b)(2).)
And it has been defined in the context of the vexatious litigant statutes as a “ ‘ “ ‘flagrant
abuse of the system,’ ” ’ having ‘ “no reasonable probability of success,” ’ or lacking
‘ “reasonable or probable cause or excuse.” ’ [Citation.]” (Golin v. Allenby (2010)
190 Cal.App.4th 616, 639, fn. 29 (Golin).) “Tactics” may be defined as “employing
available means to accomplish an end.” (Merriam-Webster’s Collegiate Dictionary (11th
ed. 2006) p. 1272.) Therefore, a defendant engages in “frivolous tactics” if he flagrantly
abuses the system, or uses means that have no reasonable probability of success or lack
reasonable or probable cause or excuse to accomplish his goal. The phrase is not vague
in this context and in light of common English usage.
       Additionally, we reject Decker’s claim that “other papers” renders the statute
unconstitutionally vague as meritless. A “motion” is “[a]n application for an order.”
(§ 1003.) “The pleadings are the formal allegations by the parties of their respective
claims and defenses, for the judgment of the court,” i.e., “complaints, demurrers,
answers, and cross-complaints.” (§§ 420, 422.10.) It is then abundantly clear that as



                                              9
used in section 391, subdivision (b)(3), “other papers” are anything written on paper
submitted to the court for filing other than “motions” or “pleadings.”
       B.     Discriminatory Classification
       Decker contends section 391 et seq. is unconstitutional because it unlawfully
discriminates against litigants proceeding in propria persona. He claims the classification
is underinclusive because represented litigants may engage in tactics that are equally as
vexatious. In accordance with longstanding precedent, we reject Decker’s contention.
       “[A] state may set the terms on which it will permit litigation in its courts. The
restriction of section 391 . . . to persons proceeding in propria persona is not arbitrary or
unreasonable. Attorneys are governed by prescribed rules of ethics and professional
conduct, and, as officers of the court, are subject to disbarment, suspension, and other
disciplinary sanctions not applicable to litigants in propria persona. There is no
constitutional requirement of uniform treatment of all persons but only that there be a
reasonable basis for each classification [citation].” (Taliaferro v. Hoogs (1965)
236 Cal.App.2d 521, 527.)4 Here, there is a rational basis to classify litigants who
proceed in propria persona differently than those represented by counsel for purposes of
section 391 because of the potential sanctions that apply only to counsel. Therefore,
section 391 et seq. does not unlawfully discriminate against litigants proceeding in
propria persona.




4       Indeed, had an attorney engaged in the kind of conduct Decker did, he or she
would be subject to censure and, potentially, suspension or disbarment. (See Cal. Rules
of Court, rule 9.4 [including in the attorney’s oath a promise “ ‘[a]s an officer of the
court; . . . to strive to conduct [one’s self] at all times with dignity, courtesy, and
integrity’ ”]; Bus. & Prof. Code, § 6103 [violation of the oath “constitute[s] cause[] for
disbarment or suspension”].)

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       C.     Right to Access Courts
       To the extent Decker challenges the constitutionality of section 391 et seq. based
on the “chilling effect” of prefiling orders authorized by section 391.7, we do not reach
the contention because he is not the subject of any such prefiling order.
       D.     Fair Notice
       Decker further complains that he did not have “fair notice” of the statute. Decker,
like the rest of us, is charged with knowledge of the law and is not entitled to claim he
was ignorant of it. (See Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th
226, 244; see also Hale v. Morgan (1978) 22 Cal.3d 388, 396; People v. O’Brien (1892)
96 Cal. 171, 176; County of Los Angeles v. Salas (1995) 38 Cal.App.4th 510, 516.) For it
“ ‘is a common maxim, familiar to all minds, that ignorance of the law will not excuse
any person, either civilly or criminally.’ ” (People v. Noori (2006) 136 Cal.App.4th 964,
978.) Accordingly, Decker’s claim is meritless.
                                              II
                    Application of Vexatious Litigant Statutes to Decker
       Decker contends we should reverse the trial court’s rulings that he is a vexatious
litigant and that he was required to furnish security in his litigation against Pulapkura
because (1) the trial court erred in finding he met the statutory definition of a vexatious
litigant pursuant to section 391, subdivision (b)(3), (2) the trial court erred in requiring
him to furnish security because he had a probability of prevailing on the merits, (3) he
was not afforded the opportunity to show the vexatious litigant designation should be
removed, and (4) the trial court violated his due process in finding him a vexatious
litigant under a different subdivision of section 391 than was relied upon by Pulapkura.
We find no error in the trial court’s findings that Decker is a vexatious litigant and that he
should be required to furnish security in the instant case. We also conclude Decker
forfeits his claim that he was denied the opportunity to seek removal of the vexatious
litigant designation, and his due process claim is specious.

                                              11
       A.     Vexatious Litigant Finding
       Decker contends there was insufficient evidence to support the conclusion he was
a vexatious litigant pursuant to section 391, subdivision (b)(3), and that the trial court
abused its discretion in relying on a finding that Decker had acted in bad faith and
engaged in “tactics” when it concluded he was a vexatious litigant. “The trial court
exercises its discretion in determining whether a person is a vexatious litigant. Review of
the order is accordingly limited and [we] will uphold the ruling if it is supported by
substantial evidence. Because the trial court is best suited to receive evidence and hold
hearings on the question of a party’s vexatiousness, we presume the order declaring a
litigant vexatious is correct and imply findings necessary to support the judgment.
[Citations.]” (Golin, supra, 190 Cal.App.4th at p. 636.) Since this is a judgment roll
appeal, we conclusively presume there is sufficient evidence to support the trial court’s
findings. We reject as specious Decker’s contention that he was not, as a matter of law, a
vexatious litigant pursuant to section 391, subdivision (b)(3) because he engaged in only
a single “tactic” by repeatedly sending obnoxious, harassing, and frivolous e-mails as
opposed to employing a multitude of tactics. Accordingly, based on the record before us,
we conclude the trial court did not err in finding Decker to be a vexatious litigant.
       B.     Security Requirement
       Decker contends he established a probability of prevailing on his claim by
challenging the trial court’s interpretation of the evidence regarding Decker’s settlement
agreement with his former employer, and absent the settlement agreement he could
pursue emotional distress claims against Pulapkura. As with a finding that a litigant is
vexatious, “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.) And, because this is a judgment
roll appeal, we conclusively presume the trial court’s findings are supported by

                                              12
substantial evidence. Here, the trial court found Decker did not have a probability of
prevailing on the merits, and we find no error in this regard appearing on the face of the
record.
       C.     Removal from Designation
       Decker contends he was denied the opportunity to establish he had satisfied the
criteria for removal from the designation of vexatious litigant. However, Decker has not
cited any factual authority for this proposition, nor has he developed any cogent argument
to support the contention. Accordingly, we deem the contention forfeited. (Cal. Rules of
Court, rule 8.204(a)(1)(C); Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743
[failure to cite to the record forfeits a claim of error on appeal].)
       D.     Fair Notice
       Decker contends the trial court violated his due process rights by finding him to be
a vexatious litigant pursuant to section 391, subdivision (b)(3) because Pulapkura’s
motion was premised on a claim that Decker was a vexatious litigant pursuant to section
391, subdivision (b)(2). The record reflects the trial court expressly recognized that it
was proceeding on a different theory than that presented by Pulapkura and provided both
parties ample time to address that new theory prior to ruling on the motion. Not only did
this provide Decker fair notice of the basis for finding him a vexatious litigant, but
Decker actually took advantage of the opportunity and submitted a 20-page brief
addressing that basis. To contend now that he was not provided fair notice is simply
frivolous.




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                                      DISPOSITION
       The judgment is affirmed. Pulapkura is entitled to his costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(2).)



                                                      NICHOLSON             , Acting P. J.



We concur:



      ROBIE                    , J.




      BUTZ                     , J.




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