IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

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1 Filed 6/15/10 Greer v. Safeway, Inc. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO BRIAN GREER, Plaintiff and Appellant, v. SAFEWAY, INC., et al., Defendants and Respondents. A125741, A (Napa County Super. Ct. No ) I. INTRODUCTION Appellant Brian Greer, in propria persona, filed two appeals following the trial court s rulings sustaining demurrers and granting a special motion to strike his first amended complaint. Respondents Safeway, Inc. and Richard Lyding (collectively Safeway) move to have Greer declared a vexatious litigant (Code Civ. Proc., 391, subd. (b)(1)), 1 to require him to furnish security in order to proceed with these appeals ( 391.1, 391.3, 391.4), and to prohibit him from filing any new litigation in the courts of this state without first obtaining permission from the presiding judge of the court where the litigation is proposed to be filed ( 391.7). In accordance with our finding that Greer meets the statutory requirements, we will declare him a vexatious litigant and enter a prefiling order. In addition, as a result of Greer s repeated failure to file opening briefs in conformance with the California Rules of Court, on our own motion we hereby dismiss these appeals. 1 All further unspecified statutory references are to the Code of Civil Procedure. 1

2 II. FACTUAL AND PROCEDURAL BACKGROUND 2 Greer is a former employee of Safeway. In 2002, while still employed with Safeway, Greer made a claim to the Workers Compensation Appeals Board (WCAB) for benefits. The parties settled the claim in In June 2006, Greer filed a complaint with the WCAB against Safeway for improperly distributing Greer s medical information. The WCAB declined to act on the complaint on the basis that information from prior hearings was a matter of public record. In September 2007, Greer filed a complaint against Safeway and Richard Lyding, an attorney for Safeway, in Napa County Superior Court. The matter was stayed pending resolution of a related appeal in the Ninth Circuit. After the stay was lifted, Greer filed a First Amended Complaint (FAC) in March Defendants demurred and filed a special motion to strike the FAC. On June 25, 2009, the trial court sustained the demurrers and granted the special motion to strike. On August 3, 2009, the court awarded Safeway its attorney fees incurred in preparing the special motion to strike in the amount of $4, On July 1, 2009, Greer filed a notice of appeal from the court s orders dated June 25, 2009 (case No. A125741). On August 10, 2009, Greer filed a notice of appeal from the court s order for attorney fees dated August 3, 2009 (case No. A126623). 3 Greer also filed five separate complaints in five different federal district courts and appeals in three different federal appeals courts based on the same or similar allegations 2 The facts of the underlying dispute are not relevant to this appeal and thus our recitation of them will be brief. 3 Greer filed a third notice of appeal on August 21, 2009 (also designated as case No. A126623). In that notice, Greer purported to appeal from the trial court s refusal to rule on his motion for reconsideration. On July 6, 2009, Greer filed a motion for reconsideration of the trial court s June 25, 2009 rulings. However, Greer had already filed his notice of appeal from the same rulings on July 1, i.e., five days before seeking reconsideration. By filing his notice of appeal before moving for reconsideration, Greer prevented the trial court from considering his motion. ( 916 [ the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order.... ].) 2

3 as contained in the operative pleadings in this case. In each trial court case and in each appeal, Greer was unsuccessful. III. DISCUSSION A. Vexatious Litigant Motion Safeway s motion to declare Greer a vexatious litigant is based on section 391, subdivision (b)(1), which provides that 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.... Litigation is defined as any civil action or proceeding, commenced, maintained or pending in any state or federal court. ( 391, subd. (a).) Litigation includes an appeal or civil writ. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216.) [A]n appeal or writ proceeding is maintained in [an appellate] court until [that court s] jurisdiction is lost. (Id. at pp ) A case is finally determined adversely to the plaintiff if he does not win the action he began, including cases in which the plaintiff voluntarily dismisses the action. (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, ; In re Whitaker (1992) 6 Cal.App.4th 54, 56.) In support of its motion for an order determining Greer to be a vexatious litigant and requiring a prefiling order and the posting of security, Safeway has submitted documentation of eight prior unsuccessful litigations in which Greer represented himself, five trial court cases and three appellate court cases: 4 (1) Greer v. United States, U.S. Court of Federal Claims, case No. 1:07cv123, filed February 23, 2007; defendant s motion to dismiss granted, judgment entered August 2, 2007; (2) Greer v. Safeway, U.S. District Court, Northern District of California, case No. 5:07cv1983, filed April 5, 2007; court dismissed plaintiff s case after denying two 4 Safeway requests that we take judicial notice of copies of docket sheets, pleadings, and rulings from the federal trial and appellate court actions. Pursuant to Evidence Code section 452, subdivision (d), we grant the request for judicial notice. 3

4 applications to proceed in forma pauperis and ordering that the filing fee be paid to avoid dismissal; judgment entered July 11, 2007; (3) Greer v. State of California, U.S. District Court, Southern District of Florida, case No. 1:08cv20777, filed March 24, 2008; plaintiff's motion to dismiss granted by the court on August 28, 2008; (4) Greer v. Safeway, U.S. District Court, District of Montana, case No. 1:08cv106, filed September 19, 2008; court ordered complaint dismissed for improper venue on October 15, 2008; (5) Greer v. Safeway, U.S. District Court, District of Utah, case No. 2:08cv872, filed November 10, 2008; complaint dismissed and judgment entered January 15, 2009; (6) Greer v. United States, U.S. Circuit Court of Appeals for the Federal Circuit, case No , filed August 31, 2007; affirmed decision of the Court of Federal Claims on December 4, 2007; (7) Greer v. Safeway, U.S. Circuit Court of Appeals for the Ninth Circuit, case Nos , , , filed July 2, 2007; plaintiff s motion to dismiss the appeals granted October 20, 2008; and (8) Greer v. Safeway, U.S. Circuit Court of Appeals for the Tenth Circuit, case No ; affirmed decision of Montana district court on March 24, In opposition to the motion, Greer does not dispute Safeway s description of the federal court litigation, including the adverse result in every case. Instead, he argues, among other things: (1) Safeway filed a vexatious litigant motion against him in the trial court; it was not granted; and thus Safeway was required to appeal the trial court s ruling rather than file this motion; 5 (2) Greer s filings in federal court were an attempt to change venue because of the stay imposed in the state trial court proceeding; 6 (3) Safeway has no 5 According to Safeway, its vexatious litigant motion in the trial court was taken off-calendar when the court sustained the demurrers and dismissed the action. Greer does not contend otherwise. Thus, there was no ruling to appeal. 6 Greer s forum-shopping does not weigh in his favor. It bears repeating that the trial court proceedings were stayed because Greer had already filed suit in federal court. 4

5 standing with respect to the case filed in federal claims court because Safeway was not named as a defendant; 7 (4) this court cannot declare Greer a vexatious litigant because Safeway did not have to appear in the other cases; (5) Greer cannot be declared a vexatious litigant because this court has not yet heard an appeal from Greer; and (6) Greer needs only to show a probability of success on the merits in his briefs on appeal, not in opposition to this motion. Greer argues at length that Safeway mischaracterizes the allegations in his FAC and he makes numerous incomprehensible statements, none of which is supported by legal authority or citations to the record. The opposition also contains various irrelevant allegations, such as that the clerks of this court are overly friendly with the WCAB s attorney as evidenced by their affectionately docketing a brief he filed using his middle name although his middle name does not appear on the brief. Greer also alleges that the vexatious litigant motion is a veiled solicitation to the clerks to author an Order barring Mr. Greer from appeal, and to stamp it with the Judge s signature, unbeknownst to the Judges. Greer requests that all further rulings be signed with a pen. Entirely absent from Greer s opposition is any discussion of the statutory criteria set forth in section 391, subdivision (b)(1). He does not claim that Safeway has failed to satisfy the statutory requirements and therefore concedes they have been satisfied. Safeway also seeks an order pursuant to sections 391.1, and requiring Greer to furnish security in the amount of $13,950 or face dismissal of his appeals. To be entitled to such an order, Safeway must establish both that Greer is a vexatious litigant and that there is not a reasonable probability that he will prevail in the pending litigation against Safeway. ( ) However, our dismissal of these appeals for failure to 7 Greer cites no authority for his arguments numbered (3), (4), (5), and (6). Section 391, subdivision (b)(1), does not require that the moving party have been involved in the prior proceedings, and does not require that the court hear the appeal before finding an appellant to be a vexatious litigant. The probability of success on the merits is relevant to the issue of security, which we decline to consider. (See section III.A., at page 6, post.) 5

6 comply with the California Rules of Court (see section III.B., pp. 8-10, post) does away with the pending litigation and the point is moot. Greer s opposition contains a cross-motion to: Award costs; and over-turn superior-court order issued during appeal; and judges sign rulings with a pen, as Safeway solicits the court-law-clerk to author ruling with stamp of judges -signature, without the judges ever reading Mr. Greer s pleadings. The cross-motion seeks to have this court: (1) overturn the trial court s Order on Attorney Fees and Costs, filed on December 18, 2009, which awarded $9, to Safeway; (2) instead award Greer $9, for his cost of filing the instant opposition and cross-motion; (3) award Greer costs from Safeway for the litigation from June 1, 2006 to date in the amount of $300,000; and (4) sign rulings in pen rather than by stamp. Safeway opposes the cross-motion, contending it should not be granted for four reasons. First, Greer did not appeal the order he seeks to overturn, so this court does not have jurisdiction to consider it. Second, if this court determines that it does have jurisdiction over the post-judgment costs ordered on December 18, 2009, based on Greer s earlier two notices of appeal (July 1 and August 10, 2009), the costs order should be the subject of briefing rather than a motion. Third, Greer did not oppose or move to tax costs below, so he has waived his right to appeal. Fourth, Greer provides no reason Safeway, the prevailing party below, was not entitled to its costs. Assuming, without deciding, that we have jurisdiction over the post-judgment order of December 18, 2009, by way of Greer s earlier-filed notices of appeal that encompassed Safeway s entitlement to attorney fees and costs as the prevailing party on the special motion to strike, and the amount of such fees and costs, we decline to address these issues on a cross-motion. Rather, both entitlement to fees and costs, and the amounts, are substantive issues properly considered on the merits of an appeal. Finally, on February 8, 2010, Greer filed Appellant s Request for Judicial-Notice, Re: pleading filed with the California Supreme Court. Said pleading is entitled Petition for Review from the First District Court of Appeal, San Francisco, Division-2, Civil, Appeal Case No. A and A Attached to this document is a proof-of- 6

7 service stating that the petition for review was mailed to the WCAB, the attorney for Safeway, the superior court, and this court on February 6, Also attached are what appear to be (1) a photocopied print-out from the Federal Express website confirming delivery on January 29, 2010, of a 3.0 pound item; 8 and (2) a photocopied print-out from the United States Postal Service website confirming delivery on January 29, 2010, of an item sent to the Supreme Court of California. Safeway has filed no opposition to the request. However, Greer s request does not comply with rule of the California Rules of Court. Most particularly, he fails to state why the matter to be noticed is relevant to the resolution of this motion, and we are unable to discern any reason on his behalf. The request for judicial notice is denied. B. Failure to Comply with the California Rules of Court On December 10, 2009, Greer filed his opening brief in case No. A He filed his opening brief in case No. A on December 24, On this court s own motion, the briefs were stricken and returned for failure to comply with the California Rules of Court, specifically rules 8.204(a), (b)(5), and (c). 9 Greer was afforded the opportunity to correct his briefs in compliance with the Rules of Court. On January 29, 2010, Greer submitted to the court his corrected opening briefs in both cases. These briefs appear to have been corrected in some respects, but still fail in very significant ways to comply with the rules. The corrected brief in case No. A is 30 pages long but contains only four (4) citations to the appellate record. (Rule 8.204(a)(1)(C).) The brief also contains citations to four documents attached as exhibits to the brief itself, but no indication whether the attachments comply with rule 8.204(d). The table of authorities contains one case and no statutes. (Rule 8.204(a)(1)(A).) The brief fails to state the nature of the action, whether the judgment appealed from is final or why the order appealed from is appealable, or to provide a summary of the significant 8 Judging by the name of the individual who signed for the item, we assume it was sent to this court. The document contains no street address or other indication of the item s intended destination. 9 All further references to rules refer to the California Rules of Court. 7

8 facts limited to matters in the record. (Rule 8.204(a)(2).) Most importantly, it contains no intelligible arguments. (Rule 8.204(a)(1)(B)). The corrected brief in case No. A fares no better. This 10-page brief contains only five (5) citations to the appellate record. (Rule 8.204(a)(1)(C).) It also contains citations to five documents attached as exhibits to the brief, and no indication that the attachments comply with rule 8.204(d). The table of authorities contains no cases and one federal statute. (Rule 8.204(a)(1)(A).) The brief fails to state the nature of the action, whether the judgment appealed from is final or why the order appealed from is appealable, or to provide a summary of the significant facts limited to matters in the record. (Rule 8.204(a)(2).) It also contains no intelligible arguments. (Rule 8.204(a)(1)(B)). This court has inherent power to dismiss an appeal when an appellant has failed to substantially comply with the Rules of Court after his initial filings were stricken for noncompliance with the rules. (Berger v. Godden (1985) 163 Cal.App.3d 1113 (Berger).) In Berger, we struck the first opening brief filed by an attorney, acting in pro per, because it did not comply with then-rules 13 and 15 of the Rules of Court (now rule 8.204). The appellant s second brief consisted of three pages, contained not one citation to the record on appeal and contained not one citation to any legal authority. Furthermore, the brief contained no pertinent or intelligible argument whatsoever. (Berger at p ) This court dismissed the appeal for three independent reasons, two of which were the failure of appellant to file a brief in conformity with the rules after his initial brief was stricken for noncompliance with the rules and the failure of appellant to advance any pertinent or intelligible legal argument, which we deem to constitute an abandonment of the appeal. (Ibid.) Berger has been cited approvingly on these points both by our Supreme Court (In re Sade C. (1996) 13 Cal.4th 952, [appellate court has discretion to dismiss appeal as abandoned where appellant fails to raise claims of reversible error or other defect and present argument and authority on each point made]; In re Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 8 [same]), and by our sister courts (see, e.g., In re 8

9 S.C. (2006) 138 Cal.App.4th 396, , 408 [contention unsupported by citations to the record or legal authority may be deemed to lack foundation and thus be forfeited]; Lester v. Lennane (2000) 84 Cal.App.4th 536, 557 [court warned appellants that further failure to file brief in conformity with the rules after first brief was stricken may result in dismissal]; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) 5:20.1, 5:69, 5:202, 9:162, and 9:292.). In this case, Greer filed new briefs that substantially failed to comply with the rules after our order striking the first briefs. In addition, the briefs fail to articulate any pertinent or intelligible legal argument. (Berger, supra, 163 Cal.App.3d at pp. 1118, ) Although Greer is representing himself in propria persona, he is held to the same restrictive procedural rules as an attorney (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193, and must follow the correct rules of procedure. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98.) Under the circumstances, dismissal of the appeals, with no consideration of the merits, is the appropriate disposition. IV. DISPOSITION The appeals are dismissed. Costs on appeal are awarded to respondents. Brian Greer is a vexatious litigant and as such is prohibited from filing in propria persona any new litigation in the courts of California without approval of the Presiding Judge of the court in which he proposes to file it. Pursuant to section 391.7, subdivision (e), upon issuance of the remittitur, the Clerk/Administrator of the Court of Appeal is directed to send a copy of this opinion and a conforming Judicial Council MC-700 form to the Judicial Council. We concur: Haerle, J. Kline, P.J. Richman, J. 9