Stanford Law School - Robert Crown Law Library

Filed 3/1/07

IN THE SUPREME COURT OF CALIFORNIA

GENE MORAN,
Plaintiff and Appellant,
S132191
v.
Ct.App.
4/3
G033102
MURTAUGH MILLER MEYER
& NELSON, LLP, et al.,
Orange
County
Defendants and Respondents. )
Super. Ct. No. 03CC07389

We limited review to the following issue: In assessing whether a vexatious
litigant has a reasonable probability of success on his claim (see Code Civ. Proc.,
§ 391.3),1 may the trial court weigh the evidence presented on the motion, or must
it assume the truth of plaintiff’s alleged facts and determine only whether the
claim is foreclosed as a matter of law?
We conclude the trial court is permitted to weigh the evidence, and we
affirm the Court of Appeal’s judgment.

1
All further undesignated statutory references are to the Code of Civil
Procedure.
1

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I. FACTUAL AND PROCEDURAL HISTORY
A vexatious litigant may be required to furnish security if the trial court
determines there is no reasonable probability he or she will prevail. (§§ 391.1,
391.3.)2 Failure to do so results in dismissal. (§ 391.4.)3
The trial court found that plaintiff Moran was a vexatious litigant with no
reasonable probability of prevailing and required him to post security. When he
did not comply, the court dismissed his suit. The Court of Appeal affirmed.
Plaintiff concedes he is a vexatious litigant.4
II. DISCUSSION
The well-settled objective of statutory construction is to ascertain and
effectuate legislative intent, giving the words of the statute their usual and

2
Section 391.1 provides: “In any litigation pending in any court of this state,
at any time until final judgment is entered, a defendant may move the court, upon
notice and hearing, for an order requiring the plaintiff to furnish security. The
motion must 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 he
will prevail in the litigation against the moving defendant.”

Section 391.3 provides: “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.”
3
Section 391.4 provides: “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.”
4
In section 391, subdivision (b)(1), a “ ‘Vexatious litigant’ ” is defined 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 having
been brought to trial or hearing.”
2

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ordinary meaning. When the statutory language is clear, we need go no further.
If, however, the language supports more than one reasonable interpretation, we
look to a variety of extrinsic aids, including the objects to be achieved, the evils to
be remedied, legislative history, the statutory scheme of which the statute is a part,
contemporaneous administrative construction, and questions of public policy. (In
re Derrick B. (2006) 39 Cal.4th 535, 539.)
Defendant contends the statutory language here clearly empowers the trial
court to weigh the evidence when deciding whether to require security. “At the
hearing upon such motion the court shall consider such evidence, written or oral,
by witnesses or affidavit, as may be material to the ground of the motion.”
(§ 391.2, italics added.) “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.” (§ 391.3, italics added.)
The statutory language arguably supports more than one reasonable
interpretation. Plaintiff notes that we construed analogous language governing
anti-SLAPP motions to preclude weighing and to require only a prima facie
showing. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821,
construing § 425.16, subd. (b).)5

5
Section 425.16, subdivision (b) provides:
“(1) A cause of action against a person arising from any act of that person
in furtherance of the person's right of petition or free speech under the United
States or California Constitution in connection with a public issue shall be subject
to a special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the claim.

(footnote continued on next page)
3

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The question whether the statutory language here permits the weighing of
evidence may be resolved by reference to Beyerbach v. Juno Oil Co. (1954) 42
Cal.2d 11 (Beyerbach). There we construed the security provisions applicable to
shareholders’ derivative suits under former section 834 (now section 800) of the
Corporations Code. When Beyerbach failed to deposit security as ordered his
action was dismissed. (42 Cal.2d at p. 16.) On appeal, he claimed that the
defendants had failed to demonstrate it was not reasonably probable that
prosecution of the action would benefit the corporation or its shareholders.
Rejecting the claim, we stated that the trial court was permitted to weigh the
evidence. “The evidence on this matter is conflicting. ‘It is for the trial court to
weigh the evidence and its finding, based upon substantial conflicting evidence, is
in this as in every civil case binding upon the appellate court.’ [Citation.]” (Id. at
pp. 24-25, fn. omitted.)
“Where . . . legislation has been judicially construed and a subsequent
statute on the same or an analogous subject uses identical or substantially similar
language, we may presume that the Legislature intended the same construction,
unless a contrary intent clearly appears.” (Estate of Griswold (2001) 25 Cal.4th
904, 915-916.)

(footnote continued from previous page)
“(2) In making its determination, the court shall consider the pleadings, and
supporting and opposing affidavits stating the facts upon which the liability or
defense is based.

“(3) If the court determines that the plaintiff has established a probability
that he or she will prevail on the claim, neither that determination nor the fact of
that determination shall be admissible in evidence at any later stage of the case, or
in any subsequent action, and no burden of proof or degree of proof otherwise
applicable shall be affected by that determination in any later stage of the case or
in any subsequent proceeding.”
4

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The vexatious litigant statute was enacted nine years after Beyerbach,
supra, 42 Cal.2d 11,6 and was modeled in part on former section 834 of the
Corporations Code. (Singh v. Lipworth (2005) 132 Cal.App.4th 40, 45-46;
Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 48; Taliaferro v. Hoogs
(1965) 236 Cal.App.2d 521, 526.) Their security provisions are virtually identical.
Under former section 834, subdivision (b)(1), the plaintiff in a shareholders’
derivative action could be required to post security if the defendant established
there was “no reasonable probability that the prosecution of the cause of action . . .
will benefit the corporation or its security holders.” (Added by Stats. 1949, ch.
499, § 1, p. 858.) Similarly, in a vexatious litigant proceeding, security may be
required if the court determines there is “no reasonable probability that the
plaintiff will prevail” in the litigation. (§ 391.3.) Under Corporations Code
former section 834, subdivision (b)(2), a ruling on a security motion in a
shareholders’ derivative action was based on “such evidence, written or oral, by
witnesses or affidavit, as may be material . . . .” Section 391.2 uses identical
language. Both former section 834, subdivision (b)(2) of the Corporations Code
and section 391.3 speak of the court’s “determin[ing]” the security motion after
“hearing the evidence.”
Because the language of the vexatious litigant statute derives from and
closely tracks the provisions construed in Beyerbach, supra, 42 Cal.2d 11, that
decision controls this case.7

6
Added by Stats. 1963, ch. 1471, § 1, pp. 3038-3039.
7
In Muller v. Tanner (1969) 2 Cal.App.3d 445, the Court of Appeal followed
Beyerbach, supra, 42 Cal.2d 11, in construing the security provisions of the
vexatious litigant statute. (Muller, at pp. 464-465.) However, in Devereaux v.
Latham & Watkins (1995) 32 Cal.App.4th 1571, the Court of Appeal reached a
different conclusion: “[T]o satisfy its burden of showing that the plaintiff has no

(footnote continued on next page)
5

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Moreover, statutory analysis confirms that the court performs an evaluative
function in the section 391.1 hearing. The court is required to decide not only
whether the plaintiff has a reasonable probability of prevailing, but also whether
the plaintiff is a vexatious litigant. Section 391, subdivision (b) identifies the
factors that may be considered in making the latter determination, and some of
these factors require the trial court to weigh the evidence. For example, the court
may determine that the plaintiff is a vexatious litigant on the basis of a normative
conclusion that, in any litigation, the plaintiff has engaged in “unnecessary”
discovery or “other tactics that are frivolous or solely intended to cause
unnecessary delay.” (§ 391, subd. (b)(3).)
Plaintiff contends that permitting a trial court to weigh the evidence denies
a vexatious litigant his right to a jury trial under article 1, section 16 of the
California Constitution. This contention lacks merit. A section 391.1 motion does
not terminate an action as does the sustaining of a demurrer. To the contrary,
section 391.2 expressly states: “No determination made by the court in
determining or ruling upon the motion shall be or be deemed to be a determination
of any issue in the litigation or of the merits thereof.” The grant of a section 391.1
motion does not preclude a trial; it merely requires a plaintiff to post security.
Next, plaintiff contends that section 391.2 unconstitutionally discriminates
against vexatious litigants of “modest means.”8 We rejected a similar challenge to

(footnote continued from previous page)
reasonable probability of prevailing, the defendant must show that the plaintiff’s
recovery is foreclosed as a matter of law or that there are insufficient facts to
support recovery by the plaintiff on its legal theories, even if all the plaintiff’s
facts are credited.” (Id. at pp. 1582-1583.) We disapprove Devereaux insofar as it
is inconsistent with this opinion.
8
Plaintiff is employed as a paralegal, and does not assert that he is indigent.
6

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former section 834 of the Corporations Code. “[I]f plaintiff’s argument in this
respect were accepted then any statute which required the payment of a fee or the
furnishing of security as a prerequisite to the filing of a complaint, the issuance or
levying of a writ, the procurement of a record on appeal, etc., would be
unconstitutional.” (Beyerbach, supra, 42 Cal.2d at p. 20.)
Plaintiff contends that a vexatious litigant will be denied due process if the
trial court is permitted to weigh the evidence on a security motion because the
mere allegations of the complaint will necessarily be outweighed by declarations
filed in support of the security motion. This contention ignores the common
process that was followed here: Plaintiff filed a nine-page declaration in
opposition to the security motion.
Plaintiff’s remaining arguments are not responsive to the limited question
we are considering.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
CORRIGAN, J.
WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

7

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Moran v. Murtaugh, Miller, Meyer & Nelson, LLP
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted 126 Cal.App.4th 323
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S132191
Date Filed: March 1, 2007
__________________________________________________________________________________

Court:

Superior
County: Orange
Judge: William M. Monroe

__________________________________________________________________________________

Attorneys for Appellant:

Arik Shafir and Evan A. Blair for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Butz, Dunn, DeSantis & Bingham, Kevin V. DeSantis, Steven C. Uribe and Kathleen A. Silhasek for
Defendants and Respondents.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Evan A. Blair
501 Civic Center Drive West
Santa Ana, CA 92701
(714) 514-4198

Kevin V. DeSantis
Butz, Dunn, DeSantis & Bingham
101 W. Broadway, Suite 1700
San Diego, CA 92101-8189
(619) 233-4777

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Opinion Information

Date:	Docket Number:
Thu, 03/01/2007	S132191

Disposition
Mar 1 2007	Opinion: Affirmed

Dockets
Mar 10 2005	Petition for review filed   appellant Gene Moran
Mar 15 2005	Record requested
Mar 18 2005	Received Court of Appeal record   file jacket/briefs/appendix
Mar 25 2005	Answer to petition for review filed   by counsel for resps. (Murtaugh, Miller, Meyer & Nelson, et al.,)
Apr 1 2005	Request for depublication (petition for review pending)   By counsel for Respondent {Murtaugh Miller Meyer & Nelson LLP, et al.,}
Apr 4 2005	Reply to answer to petition filed   appellant Gene Moran
Apr 8 2005	Opposition filed   by counsel for aplt. (G. Moran) to depublication request.
Apr 25 2005	Time extended to grant or deny review   to and inclcuding June 8, 2005, or the date upon which review is either granted or denid.
May 18 2005	Petition for review granted; issues limited (civil case)   Petition for review GRANTED. The issue to be briefed and argued is limited to the following: In assessing whether a vexatious litigant has failed to demonstrate a reasonable probability of success on his or her claim and should be ordered to furnish security before proceeding (see Code Civ. Proc., ? 391.3), is the trial court permitted to weigh the plaintiff's evidence, or must the court assume as true all facts alleged in the complaint and determine only whether the plaintiff's claim is foreclosed as a matter of law? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Brown, JJ.
May 19 2005	Note:   Records sent to Cal-coordinator Office: 2 =2, 3, 4, 6, 7, 8, 9, manila folder, Pet. for Rehrg, Aplt's Appendix, Depub. Req.
Jun 1 2005	Certification of interested entities or persons filed   by counsel for aplt.
Jun 6 2005	Certification of interested entities or persons filed   by counsel for resp. (Murtaugh, et al.)
Jun 29 2005	Request for extension of time filed   opening brief/merits to 7-29-05
Jun 30 2005	Extension of time granted   Appellant's time to serve and file the opening brief is extended to and including July 29, 2005. NO FURTHER EXTENSIONS WILL BE GRANTED.
Jul 25 2005	Opening brief on the merits filed   appellant Gene Moran
Aug 12 2005	Request for extension of time filed   Counsel for respondent requests extension of time to September 26, 2005, to file the answer brief on the merits.
Aug 18 2005	Extension of time granted   Respondent's time to serve and file the answer brief on the merits is extended to and including September 26, 2005. NO FURTHER EXTENSIONS WILL BE GRANTED.
Sep 26 2005	Answer brief on the merits filed   by counsel for resp. (Murtaugh, Miller, Meyer & Nelson LLP)
Oct 12 2005	Reply brief filed (case fully briefed)   appellant Gene Moran
Jan 27 2006	Change of contact information filed for:   counsel for aplt. (Gene Moran)
Nov 17 2006	2nd record request   Additional records Resp's appendices (7 vols.)
Nov 20 2006	Received additional record   one full box
Jan 3 2007	Case ordered on calendar   to be argued Monday, January 29, 2007, at 1:00 p.m., in Sacramento
Jan 29 2007	Cause argued and submitted
Feb 28 2007	Notice of forthcoming opinion posted
Mar 1 2007	Opinion filed: Judgment affirmed in full   OPINION BY: Corrigan, J. --- joined by: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, JJ.
Apr 3 2007	Remittitur issued (civil case)
Apr 9 2007	Received:   receipt for remittitur from CA 4/3

Briefs
Jul 25 2005	Opening brief on the merits filed
Sep 26 2005	Answer brief on the merits filed
Oct 12 2005	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website