Razavi v. Evergreen School Dist. CA6

Filed 3/18/14 Razavi v. Evergreen School Dist. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MELINA RAZAVI, H038067
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 1-09-CV132622)

v.

EVERGREEN SCHOOL DISTRICT et al.,

Defendants and Respondents.

INTRODUCTION
Plaintiff Melina Razavi appeals a judgment of dismissal after the trial court
determined her to be a vexatious litigant under Code of Civil Procedure section 391,
subdivision (b)(1)1 and failed to post a bond to continue the litigation under sections
391.3 and 391.4. On appeal, Razavi argues that the trial court erred by (1) declaring her a
vexatious litigant, (2) determining that she did not have a reasonable probability of
prevailing on her claims and ordering her to post a bond, (3) dismissing her case after she
did not post a bond, and (4) denying her motion for leave to amend her complaint. We
will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Razavi was a substitute teacher for Evergreen School District (the School District).
She claimed that during the time she worked at the School District, she suffered from a
physical disability; “namely a speech disability consisting of loss of control over nerves
1
Further statutory references are to the Code of Civil Procedure.
and muscles in plaintiff’s mouth which is a permanent injury . . . .” Razavi claims that in
January 2007, while at work, Nancy Borelli, a School District employee, blew a whistle
in her ear and caused damage to the ear. Razavi alleges that Borelli blew the whistle
because of Razavi’s physical disabilities. Razavi went to Jeff Smith, the school’s
principal and a School District employee, who “refused to make any reasonable
accommodations for plaintiff’s disability,” “recommended that no accommodations be
made,” and recommended that Razavi be immediately terminated because of her
disability. Razavi alleged that the School District terminated her because she had a
physical disability and a mental condition.
Razavi has a lengthy litigation history in state and federal courts. Since June 23,
2004, she had filed a total of 16 lawsuits.2 In all 16 lawsuits, she acted in propria persona
at some stage of the litigation. Each of these cases resulted in dismissal of the case.

2
The following are Razavi’s 16 lawsuits:
(1) Razavi v. Holland et al. (U.S. District Court Cal. Northern Dist., San Jose
Division, 2004, No. 5:04-CV-02515); (2) Razavi v. Berryessa School District (Sup. Ct.
Santa Clara County, 2005, No. 1-05-CV-041263); (3) Razavi v. Razavi et al. (U.S.
District Court Cal. Northern Dist., San Jose Division, 2005, No. 5:05-CV-05-05298); (4)
Razavi v. Haefer et al. (U.S. District Court Cal. Northern Dist., San Jose Division, 2006,
No. 5:06-CV-06-00473); (5) Razavi v. Thai et al. (Sup. Ct. Santa Clara County, 2006,
No. 1-06-CV-067223); (6) Razavi v. London (Sup. Ct. Santa Clara County, 2008, No. 1-
08-CV-107033); (7) Razavi v. San Jose Unified School District et al. (Sup. Ct. Santa
Clara County, 2008, No. 1-08-CV-108224); (8) Razavi v. Barnes (Sup. Ct. Santa Clara
County, 2008, No. 1-08-CV-117197); (9) Razavi v. Siddiq et al. (Sup. Ct. Santa Clara
County, 2008, No. 1-08-CV-126275); (10) Razavi v. Nguyen et al. (U.S. District Court
Cal. Northern Dist., San Jose Division, 2008, No. 5:08-CV-08-05552); (11) Razavi v.
Nikkah et al. (Sup. Ct. Santa Clara County, 2008, No. 1-08-CV-130162); (12) Razavi
v. Smith et al. (Sup. Ct. Santa Clara County, 2009, No. 1-09-CV-147460); (13) Razavi v.
Cooke et al. (Sup. Ct. Santa Clara County, 2009, No. 1-09-CV-156151); (14) Razavi v.
Veprek et al. (Sup. Ct. Santa Clara County, 2010, No. 1-10-CV-171863); (15) Razavi v.
Smith et al. (Sup. Ct. Santa Clara County, 2010, No. 1-10-CV-171984); (16) Razavi v.
Cooke et al. (Sup. Ct. Santa Clara County, 2010, No. 1-10-CV-173837).

2
Three of those previous cases involved employment actions, where, as here, Razavi
alleged discrimination and wrongful termination against former employers.
In this case, Razavi filed a discrimination complaint with the Department of Fair
Employment and Housing (DFEH) on January 18, 2008. In the DFEH complaint, Razavi
claimed that she was “fired” due to her “physical disability.” She stated that after
learning of her speech disability, Borelli blew a whistle in her ear “to humiliate [her].”
She also stated that after she reported the incident to Smith, he retaliated by reporting
Razavi to the School District. The School District then terminated her. After she filed
her DFEH complaint, Razavi received a “right-to-sue” notice.
On January 16, 2009, Razavi filed the civil action, in propria persona. On
September 4, 2009, she filed an amended complaint alleging disability discrimination and
wrongful termination brought under California Fair Employment and Housing Act
(FEHA), Government Code section 12940, subdivision (a).
In July 2011, defendants filed a motion to designate Razavi a vexatious litigant
based on her litigation history, and they requested an order requiring Razavi to post a
security bond pursuant to section 391 et seq.
In August 2011, Razavi filed a motion for leave to amend her complaint to add
causes of action for battery and negligence, arguing that those claims were “based on the
same general set of facts as the previous pleadings.”
On August 25, 2011, the trial court heard both the vexatious litigant motion and
the motion for leave to amend the complaint. On August 30, 2011, the court denied
Razavi’s motion for leave to amend her complaint. The court found that Razavi did not
file a government claim that gave sufficient notice that she was alleging battery and
negligence causes of action against the School District and that she failed to substantially
comply with the requirements set forth in Government Code section 910 to file a valid
claim. In the same order, the court granted defendants’ motion, deeming Razavi a
vexatious litigant. The court found that the “proof is ample that plaintiff has

3
‘commenced, prosecuted or maintained’ litigations sufficient to qualify her as a vexatious
litigant.” Additionally, the court found that she did not have a reasonable probability of
prevailing against defendants and ordered Razavi to post a bond in the amount of $3,500
within 15 days of the court’s order. The notice of entry of the trial court’s order was
served on September 2, 2011.
On September 30, 2011, defendants filed a motion to dismiss on the ground that
Razavi failed to post the $3,500 bond (§ 391.4). On January 20, 2012, the trial court
dismissed Razavi’s case for her failure to post the bond. A notice of entry of the order
granting the motion to dismiss was served on January 26, 2011. Razavi subsequently
filed a timely notice of appeal on March 16, 2012.
DISCUSSION
A. Notice of Appeal
Although not raised in the parties’ briefs, we must address the deficiencies in the
notice of appeal. Razavi’s notice of appeal states she is appealing an “order after
judgment under Code of Civil Procedure section 904.1(a)(2).” Neither the order granting
defendants’ motion to dismiss or the order denying leave to amend and designating
Razavi a vexatious litigant is an order after judgment. However, she specifies that the
date of the judgment was January 20, 2012. The civil case information statement also
misidentifies the orders she wishes to appeal as an “order or judgment under Code Civ.
Proc., § 904.1(a)(3)-(13).” However, like the notice of appeal, the civil case information
statement mentions that the challenged judgment was entered on January 20, 2012. It
also states that the notice of entry was served on January 25, 2012. Additionally,
attached to the civil case information statement are: (1) the order granting motion to
dismiss filed on January 20, 2012, and (2) the order denying plaintiff’s motion for leave
to amend the first amended complaint and granting defendant’s motion to designate
plaintiff a vexatious litigant.

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 “The notice of appeal must be liberally construed. The notice is sufficient if it
identifies the particular judgment or order being appealed.” (Cal. Rules of Court, rule
8.100(a)(2); Luz v. Lopes (1960) 55 Cal.2d 54, 59 (Luz) [“notices of appeal are to be
liberally construed so as to protect the right of appeal if it is reasonably clear what
appellant was trying to appeal from, and where the respondent could not possibly have
been misled or prejudiced.”].) Despite the deficiencies of the notice of appeal, Razavi
specified that the date of the order was January 20, 2012. The record on appeal reflects
that the only document filed on January 20, 2012, was the order granting motion to
dismiss. We thus conclude that it was “reasonably clear” that she was trying to appeal
from the order of dismissal and the order denying leave to amend and designating Razavi
a vexatious litigant. (Luz, supra, at p. 59.)
B. Defendants’ Motion to Strike Plaintiff’s Opening Brief
Defendants move to strike the entirety of the opening brief or portions of the
opening brief because it fails “to cite to the appellate record within the 30-page legal
argument section of the brief,” in violation of California Rules of Court, rule
8.204(a)(1)(C). We agree that the opening brief is defective. Although the “Statement of
Facts” and “Procedural History” sections contain citations to the record, the “Argument”
section fails to include a single citation to the record.
An appellant must affirmatively show error. (Denham v. Superior Court (1970) 2
Cal.3d 557, 564.) In order to do so, the appellant must provide the court with an
adequate record that demonstrates what the trial court did and the alleged error. (Maria
P. v. Riles (1987) 43 Cal.3d 1281, 1295.) “We are not required to search the record to
ascertain whether it contains support for [plaintiff’s] contentions.” (Mansell v. Board of
Administration (1994) 30 Cal.App.4th 539, 545.) Where no record references are made
we may treat a point as waived and pass it without consideration. (Troensegaard v.
Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 229.)

5
 Additionally, Razavi provides only minimal citation to case authority to support
her arguments. On appeal, the appellant has the obligation to direct the court to authority
that supports the arguments in support of his or her position. If none is furnished, the
court may consider the argument waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Given Razavi’s insufficient citations to the record or authority, we are not
obligated to consider the merits of each of Razavi’s claims independently. (See State
Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th 1525, 1528-1529, fn. 1.)
However, in spite of the failures in the briefing, we will exercise our discretion to review
Razavi’s contentions on appeal. (Cal. Rules of Court, rule 8.204(e)(2)(C).)
C. Razavi’s Contentions on Appeal
On appeal, Razavi contends that the trial court erred in (1) designating her a
vexatious litigant, (2) ordering her to pay a bond to continue the litigation, (3) dismissing
the action for failure to pay the bond, and (4) denying her leave to amend the complaint.
1. Order Designating Razavi a Vexatious Litigant
Razavi argues that the court erred in designating her a vexatious litigant under
section 391, subdivision (b)(1). She asserts that except for three cases, she was not acting
in propria persona in her previous litigations. Rather, she claims she was represented by
an attorney. Razavi also contends that none of her prior lawsuits were determined
adversely to her. Lastly, she claims that declaring her a vexatious litigant would not
achieve the vexatious litigant statute’s policy goals.
“We review the trial court’s ruling that plaintiff is a vexatious litigant for
substantial evidence. [Citation.] Because the trial court is best situated to receive
evidence and hold hearings on the question of whether a litigant is vexatious, on appeal,
we are required to presume the order declaring a litigant vexatious is correct and to imply
findings necessary to support that designation. [Citation.] Of course, we can only imply
such findings where there is evidence to support them. Where there is insufficient

6
evidence to imply findings in support of the designation, reversal is required.” (Morton
v. Wagner (2007) 156 Cal.App.4th 963, 969.)
In support of their motion to designate Razavi a vexatious litigant, defendants
requested judicial notice of 33 exhibits demonstrating that in the seven years preceding
the filing of the vexatious litigant motion, Razavi filed 12 civil unlimited cases in Santa
Clara County Superior Court and four cases in the Northern District Court of California.3
The exhibits included the complaint, the civil docket, and the order of dismissal in each
of these cases. These documents showed that in 15 cases, Razavi filed the complaint in
propria persona, and in one case, the trial court’s order of dismissal stated that “Plaintiff
is in pro per.” The exhibits also showed that all 16 cases resulted in dismissal. Based on
Razavi’s litigation history, defendants requested that the trial court designate her a
vexatious litigant as defined under section 391, subdivision (b)(1).
In opposition, Razavi did not contest the evidence of the 16 lawsuits she had filed
in the preceding seven years. Nor did she submit evidence to dispute her litigation
history. Rather, Razavi provided her own declaration to support her assertion that she
was represented by counsel in the majority of her previous cases. She did not offer any
other evidence showing that she was actually represented by counsel.
The trial court granted defendants’ motion and declared Razavi a vexatious litigant
under section 391, subdivision (b)(1). In its order, the court noted that Razavi “does not
dispute that she has brought far more than the required five litigations in the past seven
years and that at least five have been determined adversely to her.” The court found that
“[t]he proof is ample that plaintiff has ‘commenced, prosecuted or maintained’ litigations
sufficient to qualify her as a vexatious litigant.”

3
Although the trial court did not expressly rule on the request for judicial notice, it
clearly did take notice of the documents demonstrating plaintiff’s 16 prior lawsuits.
Plaintiff did not contest the request for judicial notice at the trial court, nor does she
contest it on appeal.

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 Section 391, subdivision (b)(1), defines several categories of vexatious litigants,
including 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.” “Litigation” is broadly defined as “any civil action or proceeding,
commenced, maintained or pending in any state or federal court.” (Id., subd. (a).)
“The vexatious litigant statute is designed not only to protect opposing parties
harassed by meritless lawsuits, but also to conserve court time and resources and protect
the interests of other litigants who are waiting for their legal cases to be processed
through the courts.” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964,
1005.)
Here, substantial evidence supports that Razavi “commenced, maintained or
prosecuted” 16 previous lawsuits in propria persona in the seven years preceding the
filing of the vexatious litigant motion. (§ 391, subd. (b)(1).) Specifically, the exhibits
defendants submitted in support of their motion established that Razavi filed the
complaint in propria persona in 15 cases, and in one case, the trial court stated on record
that she was acting in propria persona. Razavi contends that she was “represented by
counsel in the majority of the cases she has brought.” However, other than her self-
serving declaration, she offered no evidence to support her claim or to contradict the
evidence offered by defendants. Accordingly, the record demonstrates that she had
commenced 15 cases in propria persona and had maintained one case in propria persona.
Although Razavi argues that she was represented by an attorney in the majority of
her previous litigations, it appears that she only contends that an attorney had represented
her at various points in each litigation. She does not claim that an attorney represented
her in the litigation from start to finish. The Legislature’s use of the disjunctive “or” in
section 391, subdivision (b)(1) plainly indicates its intent to deem as a “vexatious

8
litigant” any person who has commenced or prosecuted or maintained in propria persona
“at least five litigations other than in a small claims court that have been . . . finally
determined adversely to [that] person.” Razavi cites no authority to the contrary. We
thus construe section 391, subdivision (b)(1) to mean that any person who has
commenced or maintained in propria persona at least five such litigations meets the
vexatious litigant criteria set forth in section 391, subdivision (b)(1), even if that person
was represented by counsel at some point during the litigation.
Furthermore, all 16 previous cases were determined adversely to Razavi. The
record supports and Razavi admits that all 16 cases were dismissed. A dismissal of a
case is generally considered a final determination that is adverse to the litigant. (See
Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779 [determining that an
action that is dismissed by the plaintiff, with or without prejudice, is an action that was
finally determined adverse to the plaintiff].) Thus, substantial evidence supports that all
previous litigations were “finally determined adversely” to her. (§ 391, subd. (b)(1).)
Lastly, given Razavi’s lengthy litigation history, we conclude that designating
Razavi a vexatious litigant comports with the statute’s purpose of “conserv[ing] court
time and resources and protect[ing] the interests of other litigants who are waiting for
their legal cases to be processed through the courts.” (In re Marriage of Falcone & Fyke,
supra, 203 Cal.App.4th at p. 1005.) Accordingly, we conclude that substantial evidence
supports the trial court’s designation of Razavi as a vexatious litigant under section 391,
subdivision (b)(1).
2. Requirement to Pay Security Bond
Next, Razavi argues that the trial court erred in ordering her to pay a security bond
under section 391.3 because she had a reasonable probability of prevailing on her claim.
She contends that she is able to provide testimony and evidence that demonstrate she had
a reasonable probability of prevailing.

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 A trial court may order a vexatious litigant to post a bond as a condition of
prosecuting a pending lawsuit if it determines “there is no reasonable probability that the
plaintiff will prevail in the litigation against the moving defendant . . . .” (§ 391.3, subd.
(a).) We review a trial court’s determination on whether the vexatious litigant has a
reasonable chance of prevailing on a substantial evidence standard of review. (Moran v.
Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 784-786 (Moran).)
In their moving papers, defendants submitted evidence showing that Razavi had
no reasonable probability of prevailing on her disability discrimination claim4 because
Razavi was not disabled, and even if she were disabled, there was no evidence to show
that defendants knew of such disabilities. Defendants attached the declarations of Jeff
Smith, Nancy Borelli, and Will Ector (the director of human resources), which stated that
they did not know Razavi had a disability. Defendants also submitted a portion of
Razavi’s deposition transcript, in which she stated that a doctor has never declared her
permanently disabled. Additionally, defendants included copies of Razavi’s health
history and job application, in which she did not indicate she had a disability. The job
application specifically asked: “Are you able to perform all of the tasks of teaching with
or without an accommodation?” Razavi checked the answer, “Yes.”
Defendants also disputed Razavi’s retaliation claim. They presented evidence that
the reason she was not offered assignments as a substitute teacher was because of her
performance. They further claimed that because she was never guaranteed a certain
number of teaching assignments, the lack of assignments could not form the basis of a
retaliation claim. Defendants submitted portions of Razavi’s deposition transcript, in
which she recounted an incident where she left students out in the playground.

4
Razavi’s discrimination claim under Government Code section 12940,
subdivision (a) prohibits an employer from discharging a person from employment
because of a physical disability or a medical condition.

10
Defendants also submitted the declaration of Will Ector, who established that Razavi was
an “on-call substitute teacher”; she “has never entered into any type of contractual
relationship with Evergreen School District”; and she was “never guaranteed . . . a
minimum number of substitute teaching assignments.”
In response, Razavi submitted medical records that showed she suffered from and
was being treated for disabilities.
After reviewing the parties’ evidence, the trial court found that Razavi had no
reasonable probability in prevailing in her action.
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.’ ” (Moran, supra, 40
Cal.4th at p. 784.) In determining whether a plaintiff has no reasonable probability of
prevailing in a litigation against a moving defendant, the trial court may weigh evidence
presented on the motion. The court is not required to assume the truth of the plaintiff’s
alleged facts. (Id. at p. 782.) “If there is any substantial evidence to support the [trial]
court’s determination, it will be upheld.” (Golin v. Allenby (2010) 190 Cal.App.4th 616,
636.)
In this case, defendants’ evidence established that Razavi failed to notify her
employers about her disability. The evidence also showed that she was an on-call
substitute teacher and that she was not guaranteed a certain number of assignments. The
evidence thus refuted her discrimination and wrongful termination claims. Although
Razavi asserted that she had evidence that she informed her employers about her
disability, she did not submit this evidence with her opposition papers. The trial court
was also not required to accept the truth of these claims. (Moran, supra, 40 Cal.4th at p.
782.) Moreover, Razavi’s litigation history supports the trial court’s conclusion that there

11
was no reasonable probability that she would prevail in her lawsuit. Significantly, in
three of the previously filed cases, Razavi made similar discrimination and wrongful
termination claims against former employers. Those three cases, like all of her other
cases, were “finally determined adversely” to her (§ 391, subd. (b)(1)). Thus, there was
substantial evidence to support the trial court’s finding that Razavi had no reasonable
probability of prevailing in her claims against defendants. As such, the court properly
ordered Razavi to pay a $3,500 security bond.
3. Dismissal of the Action
Next, Razavi argues that the trial court’s order of dismissal for failure to pay the
bond should be reversed. She contends that it was “inequitable” to require her to pay the
bond and that the dismissal of the action “was not within the spirit and purpose of the
vexatious litigant statute.”
Under section 391.4, “[w]hen 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.”
In this instance, the trial court ordered Razavi to pay $3,500 within 15 days of the
order designating her a vexatious litigant. Razavi then failed to furnish the security bond.
Under section 391.4, the trial court was thus required to dismiss the case because she
failed to furnish the bond pursuant to the court’s order. We therefore conclude that the
trial court appropriately dismissed Razavi’s case. Furthermore, we find that the dismissal
of Razavi’s action comports with the spirit and purpose of the vexatious litigant statute.
Given Razavi’s litigation history, requiring her to post a bond in order to proceed in this
action and the subsequent dismissal for her failure to post the bond furthers the vexatious

12
litigant statute’s purpose of conserving the court’s time and resources. (See In re
Marriage of Falcone & Fyke, supra, 203 Cal.App.4th at p. 1005.)5
DISPOSITION
The motion to strike plaintiff’s opening brief is denied. The judgment is affirmed.
Defendants are awarded their costs on appeal.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

5
Because we determine that the trial court properly dismissed the action based on
Razavi’s failure to post a bond, we need not determine whether the court properly denied
the motion to amend the complaint.

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