Wolfe v. San Francisco Food Bank, A114618 (Cal. App. 4/27/2007)

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BURTON H. WOLFE, Plaintiff and Appellant, v. SAN FRANCISCO FOOD BANK et al., Defendants and Respondents.

BURTON H. WOLFE, Plaintiff and Appellant, v. SAN FRANCISCO FOOD BANK et al., Defendants and Respondents.

A114618

A114775

A114806

A114814

A114916

Court of Appeals of California, First Appellate District, Division Two

April 27, 2007

NOT TO BE PUBLISHED

Appeal from the San Francisco City & County Super. Ct. Nos. CGC-05-447769, CGC-06-450243.

LAMBDEN, J.

Burton H. Wolfe filed three separate notices of appeal¹ from his first lawsuit (Wolfe I) against the San Francisco Food Bank (Food Bank) and America's Second Harvest (Second Harvest) after the lower court ruled that he was a vexatious litigant and then dismissed his complaint after he failed to post security pursuant to Code of Civil Procedure section 391 et seq.² While Wolfe I was pending and automatically stayed under section 391.1, Wolfe filed a second lawsuit against these same parties (Wolfe II). Wolfe filed two separate notices of appeal,³ from the court's orders dismissing his complaint against Food Bank and Second Harvest in Wolfe II. On this court's own motion, we consolidate the appeals from Wolfe I with the appeals of Wolfe II. In his appeals, Wolfe challenges the lower court's application of collateral estoppel to the finding that he was a vexatious litigant and makes various constitutional and other challenges to the application of section 391.1 to him, an indigent litigant in propria persona. We affirm the judgments in Wolfe I and Wolfe II.

BACKGROUND

Wolfe is a resident of the Eastern Park Apartments. Food Bank, a charitable organization, distributes food through a federally funded program and, once a month for approximately three hours, Food Bank distributes food at the Eastern Park Apartments pursuant to a written agreement between the apartment building and Food Bank. Second Harvest is a non-profit, nationwide charitable hunger-relief organization that supports more than 200 independent local food banks and food-rescue organizations nationwide, including Food Bank. The record contains no evidence of any affiliations between Second Harvest and Food Bank with respect to the food distribution at Eastern Park Apartments.

On December 19, 2005, Wolfe filed in propria persona a complaint against Food Bank and Second Harvest (collectively, food charities). The complaint contained 11 causes of action for, inter alia, declaratory relief, public and private nuisance, violations of Business and Professions Code section 17200 et seq., and negligence. Wolfe sought unspecified monetary damages, punitive damages, and an order permanently enjoining Food Bank "to cease and desist from their [sic] unethical, immoral, fraudulent, and illegal business practices . . . ."

In his complaint, Wolfe alleged that Second Harvest was the parent organization of Food Bank and funded it. Wolfe claimed that he was bringing this action on behalf of himself and the general public pursuant to section 17200 et seq. of the Business and Professions Code. He asserted that, at Food Bank's monthly distribution of food, many of the people receiving food "do not need the food boxes, and oftentimes sell them for cash or drugs. Also, much of the food in the boxes is discarded . . . ; and thus a significant amount of the food goes to waste. . . . Though it is true that some of the recipients of the food boxes are poor as defined under standards established by the U.S. Department of Commerce, plaintiff has yet to see any of the recipients who can be factually or accurately described as `hungry' in the sense intended by the defendants."

Wolfe claimed that Food Bank began distributing the food boxes "to outsiders, including the `homeless' and `street people.' "As a result, the residents of Eastern Park Apartments who are in the food program have been forced to stand in long lines with the "outsiders." He asserted in his complaint that "[s]tanding in place for long periods of time is painful, unhealthful, and even somewhat dangerous for elderly persons who are afflicted with heart disease, arthritis, and other medical conditions which make it essential for them to avoid such a situation." He alleged that the change in the manner in which the food operation is scheduled has created problems and has caused the elderly residents of Eastern Park Apartments to come in contact with "filthy, diseased outsiders . . . ." Additionally, Wolfe alleged that the distribution program resulted in a mess, which staff members at Eastern Park Apartments had to clean.

In January 2006, Food Bank and Health Harvest separately brought motions pursuant to section 391.1 to have Wolfe declared a vexatious litigant and to require him to post security as a condition to proceeding with his action. The hearing for the motions was set for March 15, 2006. In their notices of the hearing, food charities separately advised Wolfe that the litigation was stayed pending resolution of the motions.

In support of its motion to declare Wolfe a vexatious litigant, Food Bank asserted that Wolfe had filed more than 80 lawsuits in the last 20 years.⁴ The most recent order declaring Wolfe to be a vexatious litigant was in September 2003, in Wolfe v. Vietnamese Community Center of San Francisco (Vietnamese Community Center; No. 03-417193). In Vietnamese Community Center, the court cited eight cases in the past seven years litigated by Wolfe in propria persona, which had resulted in outcomes adverse to Wolfe.⁵ Food Bank also cited ten cases not cited in Vietnamese Community Center, which it maintained were dismissed by the court.⁶ According to Food Bank, since 2002, Wolfe had voluntarily dismissed eight different cases.

In response, Wolfe filed four motions to strike, 29 separate requests for judicial notice, and various supporting "appendices" and "declarations." He also sought to have the case transferred to the complex litigation department and requested a stay in the law and motion department pending a decision on his application for complex-case designation.

On March 13, 2006, Wolfe filed his complaint in Wolfe II against Food Bank and Second Harvest for compensatory and punitive damages and for injunctive relief. Wolfe's complaint alleged causes of action for private and public nuisance. Wolfe claimed that Food Bank's food distribution program prevented him from obtaining a cab because Food Bank's van was parked in the passenger zone in front of Eastern Park Apartments. He again alleged that the food distribution endangered the safety and health of the residents of Eastern Park Apartments. He also complained that he was forced to use the stairs because the wait for the elevator was longer than normal when Food Bank distributed the food.⁷

On March 29, Food Bank filed a notice of related case and asserted that Wolfe II was related to Wolfe I. Food Bank and Second Harvest also moved pursuant to section 391.1 to have Wolfe declared a vexatious litigant in Wolfe II and to require him to post security prior to proceeding with Wolfe II. On May 15, 2006, the trial court issued a tentative ruling indicating that it intended to accept food charities' motions for security as submitted on the papers.

On May 30, 2006, Judge James L. Warren held a hearing in Wolfe I. The court granted the motions by Food Bank and Second Harvest for an order declaring Wolfe to be a vexatious litigant and requiring him to post security. The court denied Wolfe's various motions. The court found that Wolfe's motions were an improper attempt to attack collaterally the prior order by Judge Ronald E. Quidachay in Vietnamese Community Center. The court ordered Wolfe to furnish security in the amount of $100,000 as a condition of further litigation against Food Bank and a security in the amount of $60,000 as a condition of further litigation against Second Harvest. The court entered a prefiling order prohibiting Wolfe from filing in propria persona any new litigation in the courts of the State of California without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.

Judge Warren found two independent grounds for declaring Wolfe to be a vexatious litigant. The first basis was that Judge Quidachay had already ruled in his order filed on September 9, 2003, in Vietnamese Community Center, that Wolfe is a vexatious litigant as defined by section 391. Judge Warren explained the applicability of Judge Quidachay's order to the issue before him: "The basis of that ruling was that, in the prior seven years, Mr. Wolfe had commenced, prosecuted, or maintained, in propria persona, at least five litigations that had been adversely determined against him. Each of the cases underlying the court's order in Wolfe v. Vietnamese Community Center, were commenced, prosecuted, or maintained within the seven years immediately preceding the date that [food charities filed their motions] in the immediate matter. Mr. Wolfe is, therefore, collaterally estopped from re-litigating Judge Quidachay's finding that such cases were `adversely determined' under [section] 391.1, and Judge Quidachay's order is conclusive on Mr. Wolfe's status as a vexatious litigant."⁸

Judge Warren set forth a second basis for ruling Wolfe was a vexatious litigant. He stated that Wolfe, "while acting in propria persona, has repeatedly filed unmeritorious motions, pleadings, or other papers, conducted unnecessary discovery, or engaged in other tactics that were frivolous or solely intended to cause unnecessary delay in the immediate case."⁹

Finally, the court found that food charities presented sufficient evidence to demonstrate that there was not a reasonable probability that Wolfe would prevail in this litigation against them.

On that same day, May 30, 2006, Judge Warren granted food charities' motions pursuant to section 391.1 in Wolfe II. The grounds for these rulings were essentially the same as those set forth in Wolfe I.

On June 14, and...