Metropolitan News-Enterprise


Thursday, May 19, 2005


Page 1


S.C. to Consider Dispute Over Scope of Vexatious Litigant Law


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday agreed to resolve a conflict between Court of Appeal panels as to whether a trial judge may look beyond the naked allegations of a complaint in determining whether a vexatious litigant should be required to post security for the defendant’s costs.

Six members of the court, Justice Carlos Moreno being the lone holdout, voted to grant review in Moran v. Murtaugh, Miller, Meyer & Nelson, LLP (2005) 126 Cal.App.4th 323. The court took the action at its weekly conference in San Francisco.

 In Moran, the Fourth District’s Div. Three held that that Orange Superior Court Judge William M. Monroe did not abuse his discretion in ordering the plaintiff to post security for the costs to be incurred by the law firm that had employed him as a paralegal. Murphy was either fired or resigned after the firm learned he was a convicted felon.

Bias Alleged

 In his complaint, Gene Moran claimed the firm had violated the Investigative Consumer Reporting Agencies Act by not providing him with copies of the records it had accessed in discovering his past convictions, which included two thefts and a burglary. He also claimed the firm had discriminated against him in violation of the Fair Employment and Housing Act and had subjected him to the negligent infliction of emotional distress.

 After being served with the complaint, the firm researched Moran’s past and discovered he had filed numerous unsuccessful lawsuits. It moved to declare him a vexatious litigant and require that he post security for costs.

 After an evidentiary hearing, Monroe concluded that Moran was a vexatious litigant with no reasonable probability of prevailing on his claims and required him to post security. When he failed to do so, his suit was dismissed under Code of Civil Procedure Sec. 391.4.

In affirming the decision, the Court of Appeal concluded that Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571 was wrongly decided. The case held that in determining whether a vexatious litigant is likely to prevail, and thus not required to post security, the trial judge must treat the allegations as true and determine only whether the plaintiff, if able to prove his or her claims, would be entitled to judgment as a matter of law.

That conclusion is inconsistent with legislative intent, as evidenced by the statutory requirement of an evidentiary hearing, Justice Richard Aronson wrote for the Court of Appeal in concluding that the ruling against Moran was within the court’s discretion.

“If the standard articulated in Devereaux were correct,” Aronson wrote, “there would be no need for such an evidentiary hearing, just as there is none on a demurrer, where the plaintiff’s alleged facts are accepted as true.”

In other action taken at the conference, the justices:

•Approved a request by California Channel, a public affairs cable network, to provide a live broadcast of three cases that will be argued Tuesday in San Francisco on the parental rights of same-sex partners. The cases are scheduled to be heard between 9 a.m. and 12 noon, and will also be available via live audiocast online at, a court spokesperson said.

Multiple Issues

The issues in the cases include whether a birth mother’s same-sex partner is entitled to the statutory presumption of parenthood when both women made the decision to have a child, received the child into their home and held the child out as their own, and agreed to support the child; whether both same-sex partners may be considered the legal parents of children conceived as a result of artificial insemination and born during their domestic partnership, and whether a woman who donates ova that are fertilized in vitro and implanted in her domestic partner’s womb, resulting in the birth of a child, must file an adoption petition in order to be a parent of the child.

•Agreed to resolve a longstanding conflict among Court of Appeal panels as to whether proof that a suspected drunk driver was the actual driver of a stopped vehicle is necessary in order for the Department of Motor Vehicles to suspend or revoke the suspect’s driver’s license for failure to submit to a test for intoxication. In Troppman v. Gourley, A105287, the First District’s Div. Three ruled that no such proof was necessary.

 There are at least two prior cases on each side of the issue, Div. Three noted in concluding that the DMV was correct and the San Mateo Superior Court judge who ruled in favor of the motorist was wrong.


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