Date: 05-02-2019

Case Style:

Case Number: B287190 & B290332

Judge: Chaney, Acting P.J.

Court: California Court of Appeals Second Appellate District, Division One on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Pro Per

Defendant's Attorney: Michael N. Feuer and Morgan Hector

Description: Mary McFadden, who has been adjudicated a vexatious
litigant, appeals from a judgment and order entered after the
trial court granted its own motion to strike under Code of Civil
Procedure section 4361 and motion for judgment on the pleadings
under section 438. We find that McFadden’s appeals have no
merit and that they have been filed to harass the respondents;
the appeals are dismissed.
BACKGROUND2
“In October 2012, McFadden, in pro. per., filed this action
against the Los Angeles County Treasurer and Tax Collector (the
County), challenging the pending public auction of her property
located at 1446 West 37th Drive in Los Angeles. . . . [¶]
“Although the complaint originally did not name the City of
Los Angeles (the City) as a defendant, the complaint included
allegations that the Department of Building and Safety of the
City of Los Angeles (the Department) had wrongfully demolished
McFadden’s house (located at 1446 West 37th Drive) in 2005
without obtaining a court order authorizing it to do so. [¶] . . . [¶]
[A. McFadden I]
“This is the fourth case McFadden has filed against the
City concerning the demolition of her house. In the first case

1 Further statutory references are to the Code of Civil
Procedure.
2 Much of the background is taken from our April 2016
opinion in this matter. (McFadden v. City of Los Angeles (Apr.
28, 2016, B254992) [nonpub.opn.] (McFadden III).) Reference to
“this action” in excerpts from McFadden III continue to be
accurate because these appeals are from a judgment and order
entered in the same trial court case that resulted in our opinion
in McFadden III.
3
(BS095404), filed on March 4, 2005, McFadden filed a petition for
writ of mandate challenging the decision by the Board of Building
and Safety Commissioners of the City of Los Angeles (the Board)
that her property constituted a public nuisance and that no
additional time should be granted to her to abate the property.
The trial court denied the petition and the Court of Appeal
affirmed on the merits. (McFadden v. Board of Building and
Safety Commission (Mar. 13, 2009, B196818) [nonpub. opn.]
[(McFadden I)].)
[B. McFadden II]
“In the second case (BC345396), filed on January 4, 2006,
McFadden filed an action against the City, the Department, the
Board, and Ben Mathias for inverse condemnation, wrongful
eviction and deprivation of civil rights arising from the Board’s
public nuisance determination and the subsequent demolition of
her house. The trial court granted the defendants’ motion for
judgment on the pleadings and the Court of Appeal affirmed on
res judicata grounds. (McFadden v. City of Los Angeles (June 14,
2011, B222154) [nonpub. opn.] [(McFadden II)].)
[C. Abandoned Appeal]
“In the third case (BC468177), filed on August 23, 2011,
McFadden filed an action against the City, the Department, the
Board, Andrew Adelman, Ben Mathias, and Roxanne Wiles. As
set forth in the trial court’s order granting the defendants’ motion
for judgment on the pleadings in that case, McFadden alleged,
among [other] things, (1) that the defendants prevailed in the
first case (BS095404) ‘by lying to the court and concealing various
facts from’ McFadden, and (2) ‘that there was never a final
administrative adjudication with respect to’ her property. The
court granted the motion on res judicata grounds. McFadden
4
appealed from the judgment, but later abandoned her appeal.
The appellate court dismissed the appeal at McFadden’s request.
[D. McFadden III]
“In June 2013, the County filed a motion for judgment on
the pleadings in the present action, which McFadden opposed. In
July 2013, the City and its employees filed demurrers to the
complaint, which McFadden opposed.
“On September 5, 2013, the date of the hearing on the
motion for judgment on the pleadings and the demurrers, the
trial court issued a tentative ruling granting the motion with
leave to amend and sustaining the demurrers without leave to
amend. In its tentative ruling, the court concluded McFadden’s
action against the City and its employees was barred by res
judicata, explaining: ‘This is McFadden’s fourth case against the
City, the Department of Building and Safety, and the City
employees involved with the demolition decision on plaintiff’s
house. The appeal in case No. BS095404 was decided against
plaintiff in March 2009, and two more cases by McFadden
against the City (and its employees Adelman and Mathias for
being in privity with the City) have already been determined
against McFadden on res judicata. [Citation.] This case also has
to do with the decision by the City to demolish plaintiff’s house.
See Complaint, ¶¶ 18-24. It is barred by res judicata.’ The court
also concluded McFadden’s action against the County is barred
because McFadden failed to comply with the California Tort
Claims Act.
“The trial court did not issue a final ruling on the motion
for judgment on the pleadings and the demurrers because
McFadden had a bankruptcy case pending. The court continued
the matters pending resolution of the bankruptcy case.
5
“On September 27, 2013, the City and its employees filed a
motion for an order declaring McFadden a vexatious litigant
under Code of Civil Procedure section 391, subdivisions (b)(2)-(3),
[fn. omitted] for an order requiring McFadden to post a bond
under section 391.1, and for a prefiling order prohibiting
McFadden from filing new litigation in pro. per. without
obtaining leave of the presiding judge under section 391.7. The
bankruptcy court granted the City’s motion for relief from the
automatic stay to pursue the vexatious litigant motion. On
January 8, 2014, after several continuances of the hearing date
on the motion, McFadden filed an opposition to the motion. She
requested additional time to hire an attorney.
“On January 9, 2014, the trial court held a hearing on the
vexatious litigant motion. The court denied McFadden’s request
for a continuance to find an attorney, explaining the court
already had continued the matter so McFadden could hire an
attorney.[3]
On the merits, the court ruled: ‘The motion to deem
plaintiff McFadden a vexatious litigant is granted. The plaintiff

3 “The hearing on the vexatious litigant motion originally
was set for October 23, 2013. On October 18, 2013, the trial court
continued the hearing to November 1, 2013 due to pendency of
the bankruptcy proceedings. On November 1, 2013, the court
continued the hearing to December 12, 2013 because the
bankruptcy proceedings had not resolved. On December 12,
2013, McFadden sought a further continuance to hire an
attorney. The court set the hearing for January 9, 2014.
McFadden had ample time between September 27, 2013—the
date the City and its employees filed the motion—and January 9,
2014—the date the court heard the motion—to hire an attorney.
The trial court did not abuse its discretion in declining to grant a
further continuance. [Citation.]
6
meets the definition of a vexatious litigant because she
repeatedly has attempted to relitigate the same case against the
Defendant City of Los Angeles for condemning and demolishing
her house and has already lost in three prior cases and two prior
appeals, making this her fourth case. [¶] Plaintiff filed a
nonsubstantive opposition with this court after having been given
extra time to do so but has not given the court any arguments on
the merits. Plaintiff Mary McFadden is hereby prohibited as a
vexatious litigant from filing any new litigation in the courts in
this state in propria persona without first obtaining leave of the
presiding justice or presiding judge of the court where the
litigation is proposed to be filed. Disobedience of the court order
by a vexatious litigant may be punished as a contempt of court by
CCP 391.7. [¶] Further, as there is no reasonable probability the
plaintiff will prevail in the litigation, plaintiff is ordered to post a
bond in the amount of $5,000 in order to proceed with the action
under CCP 391.1 to 391.3. [¶] This case is automatically stayed
from the time the motion was filed until ten days after plaintiff
posts the required security under CCP 391.6. If the bond is not
posted, the action will be dismissed as to the Defendant City of
Los Angeles under CCP 391.4.’ The trial court ordered the City
to give notice of the ruling. The court did not issue an order
setting forth its ruling.
“On January 21, 2014, the City mailed McFadden notice of
the January 9, 2014 ruling. Three days later, on January 24,
2014, the trial court dismissed the action with an order stating:
‘The Court having after hearing found plaintiff Mary McFadden
to be a vexatious litigant by order of January 9, 2014 ordered her
to post security of $5,000 and the security not having been timely
posted plaintiff’s lawsuit is dismissed pursuant to [section 391.4].
7
[¶] Pursuant to Code of Civil Procedure section 391.7 plaintiff is
ordered not to file any new litigation in any court without first
obtaining leave of the presiding judge of the court where the
litigation is proposed to be filed. Disobedience of this order by a
vexatious litigant may be punished as a contempt of court.’ ”
(McFadden III, supra, B254992, at pp. 2-6.)
In McFadden III, we affirmed the trial court’s order
declaring McFadden a vexatious litigant, imposing a prefiling
order, and requiring her to post a $5,000 security bond for the
benefit of the City and its employees. (McFadden III, supra,
B254992, at pp. 6, 8.) Because the trial court did not set a
deadline within which McFadden was to post the security bond,
however, we reversed the trial court’s order dismissing the action
and directed the trial court to “fix the time within which
McFadden must post the bond in accordance with section 391.3,
subdivision (a).” (Id. at p. 9.) In our opinion, we stated: “On
remand, McFadden may not challenge the portions of the order
declaring her a vexatious litigant, imposing a prefiling order, or
requiring her to post a $5,000 security bond for the benefit of the
City and its employees, as we have affirmed those portions of the
order on the merits.” (Id. at pp. 8-9.)
E. These Appeals
On July 14, 2017, the trial court issued an order setting a
hearing on its own motion for an order striking McFadden’s
complaint under section 436 and for judgment on the pleadings
under section 438. Among other issues, the trial court noted that
the complaint “reflects claims barred by res judicata and being
subject to being stricken or dismissed or the subject of a
judgment on the pleadings . . . .” The trial court heard the matter
on September 19, 2017, and issued a written minute order
8
dismissing the action on the grounds stated in its July 14, 2017
order. The trial court’s September 19 order stated: “[T]here are
no facts which this Court can conceive of which would salvage or
potentially salvage the frivolous and too often resurrected claims
of this vexatious litigant.”
The trial court entered a judgment of dismissal on October
27, 2017. McFadden filed a notice of appeal on December 26,
2017 (B287190). Because she never requested leave of court to
file the notice of appeal, on December 29, 2017, we directed
McFadden to “show in writing ‘that the litigation has merit and
has not been taken for purposes of harassment or delay’ ” within
20 days.
On May 25, 2018, McFadden filed a second notice of appeal,
purporting to appeal from trial court orders dated January 17
and March 8, 2018 regarding an increased security bond and
attorney fees awarded by the trial court (B290332). Because
McFadden failed to request leave of court to file the notice of
appeal, on May 30, 2018, we directed McFadden to “show in
writing ‘that the litigation has merit and has not been taken for
purposes of harassment or delay’ ” within 20 days.
On May 29, 2018, McFadden filed a substitution of attorney
substituting Allen B. Felahy as counsel in B287190. No
substitution of counsel was filed in B290332. On June 21,
McFadden filed a statement in B290332 stating that she
intended to ask Felahy to handle both appeals. The same day, we
filed an order in B287190 that stated: “In light of retention of
counsel, the order to show cause issued on December 29, 2017 is
discharged.”
On January 3, 2019, we granted Felahy’s motion to
withdraw as counsel for McFadden. On January 15, we issued an
9
order to show cause why both matters should not be dismissed
under section 391.3, subdivision (b) upon the withdrawal of
McFadden’s counsel. On January 24, McFadden filed a request
for extension of time to respond to our order to show cause; we
granted McFadden’s request.
On February 8, 2019, McFadden filed a response to our
order to show cause. On February 14, the City filed a letter brief
responding to McFadden’s filing. We granted McFadden leave to
file a reply, which she filed on February 27. On February 28,
McFadden attempted to file a supplement to her reply brief. We
denied McFadden leave to file the supplemental reply.4
DISCUSSION
“If, after hearing evidence on” a motion brought against a
vexatious litigant under section 391.3 “the court determines that
the litigation has no merit and has been filed for the purposes of
harassment or delay, the court shall order the litigation
dismissed. This subdivision shall only apply to litigation filed in
a court of this state by a vexatious litigant subject to a prefiling
order pursuant to Section 391.7 who was represented by counsel
at the time the litigation was filed and who became in propria
persona after the withdrawal of his or her attorney.”5 (§ 391.3,
subd. (b).)

4 At oral argument, McFadden requested that we continue
the hearing on the order to show cause to give her time to retain
another attorney. We deny the request.
5 In 2011, the Supreme Court held that dismissal of a
vexatious litigant’s action after withdrawal of counsel that filed
the litigation could only result from the litigant’s failure to post
court-ordered security to continue prosecuting the litigation, but
that sections 391.1 et seq. did not otherwise vest the courts with
10
In response to our initial orders to show cause issued to
McFadden immediately after she filed the notices of appeal in
these matters, McFadden retained counsel. Based on that
retention of counsel we allowed McFadden to initiate these
matters. McFadden became in propria person upon her
attorney’s withdrawal.
In response to our second order to show cause regarding the
merit of McFadden’s appeals, issued after McFadden’s attorney
withdrew, McFadden contends that she is not a vexatious
litigant. In McFadden III, we affirmed the vexatious litigant
order she continues to challenge. (McFadden III, supra,
B254992, at p. 8.) We will not reconsider that challenge.
McFadden contends that the City was required to provide
her with a specific administrative proceeding before it condemned
and demolished her property and that it did not do so. McFadden
I discussed at length the administrative procedures the City
undertook and the administrative procedures McFadden

authority to dismiss litigation. (Shalant v. Girardi (2011) 51
Cal.4th 1164, 1176 (Shalant).) “As the appellate court below
remarked,” the Supreme Court said, “[w]e sympathize with the
plight of already overburdened trial courts that are forced to
contend with the abusive conduct of vexatious litigants. But in
their efforts to deal with the problem of vexatious litigants,
courts must observe the limits set by the applicable statutory
scheme. If those limits are too confining, then it is the function of
the Legislature, not the courts, to expand them.” (Ibid.)
Citing Shalant, the Legislature amended the vexatious
litigant statutory scheme in 2012 to include, among other
enabling and consistency provisions, section 391.3, subdivision
(b). (See Sen. Com. on Judiciary, Rep. on Assem. Bill No. 2274
(2011-2012 Reg. Sess.) as amended May 15, 2012, pp. 2-3.)
11
claimed—at the time—the City should have undertaken.
McFadden I was issued more than a decade ago. The time to
raise the issue McFadden now views as meritorious was then.
“ ‘If the matter was within the scope of the action, related to the
subject matter and relevant to the issues, so that it could have
been raised, the judgment is conclusive on it despite the fact that
it was not in fact expressly pleaded or otherwise urged . . . . The
reason for this is manifest. A party cannot by negligence or
design withhold issues and litigate them in consecutive actions.
Hence the rule is that the prior judgment is res judicata on
matters which were raised or could have been raised, on matters
litigated or litigable.’ ” (Tensor Group v. City of Glendale (1993)
14 Cal.App.4th 154, 160, original italics.) McFadden’s new
argument regarding the 2005 condemnation and demolition of
her property is not timely.
McFadden contends that she is the defendant in this action
and should consequently be relieved of the vexatious litigant
prefiling order. She cites no authority to support this contention,
and we are aware of none. McFadden filed the complaint that
initiated this case in the trial court. “[T]he party complaining is
known as the plaintiff, and the adverse party [is] the defendant.”
(§ 308.) This contention is also without merit.
Finally, McFadden contends that she has not filed these
appeals to harass the respondents. Whether that was her intent,
that has been the effect of McFadden’s almost decade-and-a-half
crusade in the courts against the City and related respondents.
The trial court ruled on the merits of McFadden’s claims, as did
this court. The trial court has repeatedly explained to McFadden
that her continued attempts to relitigate the issues related to the
condemnation and demolition of her property are meritless and
12
are barred by res judicata. We have also now repeatedly
explained that to McFadden. We find no proper purpose for
McFadden’s improper attempts to relitigate issues that either
were or should have been litigated more than a decade ago. We
find that the only possible purpose of these appeals is to harass
the respondents.
McFadden’s appeals have no merit and have been filed to
harass the respondents. We therefore dismiss them.

Outcome: The appeals are dismissed. Respondents are entitled to their costs on appeal.

Plaintiff's Experts:

Defendant's Experts:

Comments: