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Brainard v. Willmon et al.-'-'--------'-'--"'----'-'-"'--'-"Case Number F064341

Date Description

Case Summary Docket Scheduled Ac ions Brief~Disposition Parties and Attorney~ rial Court

Docket (Register of Actions)

NoesNotice of appeal by Willi m J. Brainard (without

req for permission to file b vexatious litigant) fromOrder of dismissal, Ruling plaintiff a VexatiousLitigant, Requireing Plaint to post $20,000.security to proceed with cl im etc. (file folder tocsmgr for review)

02/27/2012 Received faxinformationalcopy of:

application for waiver of ourt fees by vexatiouslitigant William Brainard. ( a csmgr with notice ofappeal)

10/13/11 Ordet after hea ing re: default ofdefendants Bryan Willmo et al entered 10/11/11and default of Michael Ma omber entered 10/3/11are set aside becaust the iling of these defaultswas in violation of CCP 3 1.6 etc .. (see order fordetails) and 12/14/11 Pre Inig order-vexatiouslitigant for William J. Brain rd by Tuolumne co supct. to csmgr

02/28/2012 Letter sent to: letter to William Brainard re: Vexatious Lititgantmust file a request for per ission to file a notice ofappeal.

Page 1 of 1

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm ?dis - 5&doc id=2006360&... 2/2812012

02/27/2012 Receiveddocumententitled:

02/27/2012 Receiveddocumententitled:

DEAR COURT CLERK 2/28/2012

AFTER REVIEWING THE ACCOMPANYIN CASE LAW AND "ORDER

AFTER HEARING" FILED WITH THE COURT DO YOU IN REALITY BELIEVE

IN YOUR HEART OF HEARTS THAT A POST" QUEST FOR PERMISSION

TO FILE A NOTICE OF APPEAL" WHEN "APPE F064347" IS FILED WITH

THE COURT IN COMPLIANCE WITH THE

CALIFORNIA IS SOMETHING THAT WILL NO BE DEALT WITH TO THE

FULL EXTENT OF THE LAW AND TO THE ID HEST OF OFFICIALS AND

IDGHEST COURTS OF TIDS GREAT NATION T T SOMEDAY NO MATTER

HOW LONG IT TAKES THAT THE LAW 0 ALL LAWS SHALL NOT

PREVAIL? "DUE PROCESS". PLEASE DO YO JOB AND CORRECT THE

RECORD OR FILE AN ORDER TO SHOW CAUSE.

No. G034330. - HOLCOMB v. BANK NATIONAL ASSOCIATI N - CA Court of App.. Page 1 of 9

FORLEGAL . ROFESSIONALS

HOLCOMBv. BANKNATIONAL SSOCIATION

Scott P. HOLCOMB, Plaintiff and Appellant, v. .S. BANK NATIONALASSOCIATION et at, Defendants an Respondents.

No. G034330.

-- June 08,2005

Scott P. Holcomb, in pro. per., for Plaintiff and Appellant. vanjack, Shuck & Milstead,Gary Tokumori and Holly A. Hayes, Los Angeles, for De ndants and Respondents.

OPINION

Plaintiff Scott P. Holcomb challenges orders of the trial co declaring him to be avexatious litigant, requiring him to post a $10,000 bond, a d dismissing his complaintwhen he failed to post the bond. In a separate motion to ismiss, defendants U.S. BankNational Association, John Kearney, and Mary Stone cont nd Holcomb was required toobtain leave of the presiding justice and post security befo e filing this appeal.

We deny defendants' motion to dismiss because the trial c urt's order was not a pre filingorder under Code of Civil Procedure section 391.7 (all sta tory references are to this code,unless otherwise noted), and leave to file the appeal was ecessary. We also concludeHolcomb did not fit within any of the definitions of a vexa .ous litigant under section 391,and therefore reverse.

Factual and Procedural Background

Holcomb sued a bank and certain individual defendants 0 er damages allegedly sufferedwhen the bank placed a hold on a check Holcomb deposite into his account. Defendantsfiled a motion to have Holcomb declared a vexatious 1itig t, and to require him to postsecurity. The trial court granted the motion and required olcomb to post a $10,000 bondbefore resuming prosecution of his case.

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Holcomb appealed the order, which we dismissed because it was not separately appealable.After we issued the remittitur, the trial court set an order t show cause re dismissal (OSC),indicating that if the required bond were not posted within a specified time, the case wouldbe dismissed. Holcomb did not appear at the hearing on e OSC, and the court orderedthe action dismissed. Holcomb now appeals both orders.

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Standard of Review

"A court exercises its discretion in determining whether a person is a vexatious litigant.[Citation.] We uphold the court's ruling if it is supported by substantial evidence.[Citations.] On appeal, we presume the order declaring a itigant vexatious is correct andimply findings necessary to support the judgment." (Bra 0 v. Ismaj (2002) 99 Ca1.App.4th211, 219, 120 Ca1.Rptr.2d 879.) Questions of statutory i terpretation, however, we reviewde novo. (Ibid.)

Discussion

l. Holcomb Was Not Required to Obtain Permission fro the Presiding Justice or PostSecurity to File this Appeal

In their motion to dismiss, defendants contend we should ot hear Holcomb's appealbecause he failed to obtain leave from the presiding justic and did not post the bondrequired by the trial court's order. We disagree.

The vexatious litigant statutes, section 391 et seq., provid two remedies against vexatiouslitigants. The first is an order to furnish security, as desc 'bed in section 391.3.1 Thisremedy is obtained by bringing a motion under section 39 .1,2 which requires adetermination that the plaintiff is a vexatious litigant, and hat "there is not a reasonableprobability that he will prevail [on the merits]." If an or r to furnish security is issued,the action is automatically stayed from the time the motio was filed until 10 days after theplaintiff posts the required security. (§ 391.6.) J. If the see ity is not posted, the action"shall be dismissed as to the defendant for whose benefit i was ordered furnished." (§391.4.) 1

Another remedy is found in section 391.7, which authoriz s the court to "enter a pre filingorder which prohibits a vexatious litigant from filing any ew litigation in the courts of thisstate in propria persona without first obtaining leave of the presiding judge of the courtwhere the litigation is proposed to be filed." (§ 391.7, sub. (a).) 2 The presiding judgemay allow the filing of the new litigation "only if it appe that the litigation has merit andhas not been filed for the purposes of harassment or delay. The presiding judge maycondition the filing of the litigation upon the furnishing of ecurity for the benefit of thedefendants as provided in Section 391.3." (§ 391.7, subd. b).) The Judicial Councilmaintains a record of all vexatious litigants in the state an distributes a list to the clerks ofthe courts annually. (§ 39l.7, subd. (e).) ~ The remedy pr vided in section 391.7 is in

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addition to the other remedies provided by the vexatious li igant statutes. (§ 391.7, subd.(a).)

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Defendants construe the order issued in the present case as a prefiling order under section391.7, and cite McColm v. Westwood Park Assn. (1998) 6 Cal.App.4th 1211, 73Ca1.Rptr.2d 288, for the proposition that leave of the presi . g justice is required beforeHolcomb may pursue this appeal. McColm held that filin an appeal effectivelycommenced a "new litigation" under section 391.7, subdivision (a), and thus a plaintiffsubject to a pre filing order was required to obtain permissi n from the Court of Appeal'spresiding justice before commencing an appeal. (Id. at p . 1220-1221, 73 Ca1.Rptr.2d288.)

The problem for defendants, however, is the trial court's order in the present case was nota section 391. 7 prefiling order. By both its operation and express citation to sections391.1,391.3, and 391.6, the trial court's order simply requires the posting of security undersection 391.3. Indeed, the order does not cite section 391.7 and does not purport torestrict Holcomb's ability to file future lawsuits. Accord' gly, Holcomb was free to filethe present appeal without restriction.

2. The Evidence Does Not Support a Finding that Holcor b Was a Vexatious LitigantUnder Subdivision (b)(1) of Section 391

Section 391, subdivision (b), lists four alternative definitio s for a vexatious litigant) Inseeking an order requiring the posting of security under s ction 391.3, defendants relied onthree of these definitions. The trial court, however, did n t specify under whichsubdivision it made its ruling. Accordingly, we will impl findings under each, anddetermine whether substantial evidence support them.

Section 391, subdivision (b)(l), describes a vexatious litig t as one who: "In theimmediately preceding seven-year period has commenced, prosecuted, or maintained inpropria persona at least five litigations other than in a small claims court that have been (i)finally determined adversely to the person or (ii) unjustifia ly permitted to remain pendingat least two years without having been brought to trial or h aring." Respondents contendthe requirements of subdivision (b)( 1) are satisfied by the ollowing five lawsuits: (1)Holcomb v. City of Compton (Super.Ct.L.A.County, 2002 No.00C02972); (2) Holcombv. National Association of Securities Dealers (Super. Ct. Orange County, 2002, No.02CC04684 (NASD )); (3) Holcomb v. First Republic Gr up (U.S.Dist.Ct., C.D.CaI.,2001, No. SACVOI-597-AHS(ANx) (First Republic )); (4 Holcomb v. Joe MacPhersonFord, Inc. (Super. Ct. Orange County, 1998, No. 699078 MacPherson I)); (5) JoeMacPherson Ford, Inc. v. Holcomb (Mun. Ct., Orange Co ty, 1998, No. 297855(MacPherson II )).

The most apparent problem with this list of cases is Ma hers on II. This case arose outof MacPherson I, a lawsuit Holcomb filed against a car de lership concerning Holcomb'spurchase of an automobile. The defendant filed a cross-e mplaint against Holcomb in

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MacPherson I to recover money the defendant spent in pa~ing off the loan on Holcomb'strade-in vehicle. The defendant's cross-complaint was tn nsferred to the municipal courtand became MacPherson II. This municipal court case inv lved only the defendant's cross-complaint and did not constitute litigation "commenced, p osecuted, or maintained" byHolcomb.

Because defendants can cite only four cases falling within Itheparameters of section 391,subdivision (b)(1), Holcomb does not qualify as a vexatious litigant under that provision.

3. The Evidence Does Not Support a Finding that Holcomb Was a Vexatious LitigantUnder Subdivision (b)(2) of Section 391

Section 391, subdivision (b)(2), describes a vexatious litig t as one who: "After alitigation has been finally determined against the person, r peatedly relitigates or attemptsto relitigate, in propria persona, either (i) the validity of th determination against the samedefendant or defendants as to whom the litigation was fin y determined or (ii) the cause ofaction, claim, controversy, or any of the issues of fact or 1 , determined or concluded bythe final determination against the same defendant or defe dants as to whom the litigationwas finally determined." Contending Holcomb falls wi in this definition, defendants citecases where Holcomb filed motions for reconsideration an appealed adverse decisions.

To support a vexatious litigant finding, the plaintiffs atte pts at relitigation must be "[a]fter a litigation has been finally determined." (§ 391, sub . (b)(2).) Under the vexatiouslitigant statutes, " 'Litigation' means any civil action or pr ceeding." (§ 391, subd. (a).)Although the term "finally determined" is not defined in s ction 391, courts have defined itas the time a judgment becomes final for all purposes, i.e., "when all avenues for directreview have been exhausted." (Childs v. PaineWebber In orporated (1994) 29Ca1.App.4th 982, 993, 35 Ca1.Rptr.2d 93 (Childs ).) Wit this understanding, Holcomb'sfiling of motions for reconsideration and appeal before a j dgment is final for all purposeswould not support a vexatious litigant finding under sectio 391, subdivision (b)(2). Areview of the evidence cited by defendants, however, does provide at least one instance inwhich Holcomb attempted to relitigate a matter after it wa "finally determined."

Holcomb instituted an arbitration proceeding against the ational Association of SecuritiesDealers (NASD) and related parties. Although Holcomb was seeking to recoverapproximately $200,000 from the defendants, he succeede in obtaining an award of only$145 against one defendant, and had costs assessed agains him in the amount of$2,846.50.Dissatisfied with the outcome, Holcomb filed a motion un er section 10 of title 9 of theUnited States Code in federal district court to vacate the ju gment. (First Republic, supra,No. SACVOI-597-AHS(ANx).) On August 16,2001, th district court denied Holcomb'smotion. On September 19,2001, Holcomb filed a motio for reconsideration that thecourt also denied. In March 2002, Holcomb filed a comp aint in Orange County SuperiorCourt against the NASD, its agents, and the arbitrator in attempt to recover the damagesoriginally sought in the arbitration. (NASD, supra, No.02 C04684.) The case wasdismissed in September 2002.

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In reviewing the foregoing, we conclude the motion to acate was not an attempt torelitigate a litigation that was "finally determined." Und r federal law, an arbitrationaward is considered final unless either party timely moves to vacate or modify the awardunder section 10 of title 9 of the United States Code. (Cor y v. New York Stock Exchange(6th Cir.1982) 691 F.2d 1205, 1212.) To be timely, a m ion to vacate or modify must beserved within three months of the award. (9 D.S.C. § 12. Because the arbitration awardwas made on March 29,2001, and the motion to vacate w s served less than three monthslater, on June 22, 2001, the motion was timely. Accordi gly, the award was not "final"when the motion to vacate was decided.

No. G034330. - HOLCOMB v. BANK NATIONAL ASSOCIATI N - CA Court of App. Page 5 of 9

We next determine whether the motion for reconsiderat on of the district court's orderwas filed after the decision was "final." ~ Under rule 4(a) 1)(A) of the Federal Rules ofCivil Procedure (28 U.S.C.) a party has a right to file an a peal in a civil case within 30days of entry of the judgment or order being challenged. This time may be extended if amotion for reconsideration is filed within 10 days of the c allenged decision. (Id., rule 4(a)( 4)(A)(vi).) In the present case, Holcomb did not file is motion for reconsiderationuntil 35 days after the court denied his motion to vacate. Accordingly, absent specialcircumstances outlined in rule 4, the time for Holcomb to ppeal the district court's decisionhad passed by the time he filed his motion for reconsidera .on.

Accordingly, Holcomb's motion for reconsideration in t e district court represented a"relitigation" of a matter that had been "finally determine ." In addition, Holcombunmistakably attempted to "relitigate" a finally determine litigation when he filed theNASD case in superior court after the federal district co denied his motion to vacate thearbitration award. Thus, the record demonstrates two oc asions on which Holcombrelitigated a matter that had been finally determined. Th question now is whether thesetwo attempts at relitigation alone are sufficient to satisfy t e requirement a party"repeatedly" relitigates a matter that has been finally dete ined, Based on the recordbefore us, we conclude it does not.

"When interpreting statutes, we seek to ascertain the legi slative intent with a view toeffectuating the purpose of the statute, and construe the w rds of the statute in the contextof the statutory framework as a whole." (Korea Water R sources Corp. v. Lee (2004) 115Ca1.AppAth 389,401, 8 Cal.Rptr.3d 853.) "The vexatiou litigant statutes were enacted torequire a person found a vexatious litigant to put up securi for the reasonable expenses ofa defendant who becomes the target of one of these obsess ve and persistent litigants whoseconduct can cause serious financial results to the unfortun te object of his attack. Thepurpose of the statutory scheme is to deal with the proble created by the persistent andobsessive litigant who has constantly pending a number of groundless actions, often againstthe judges and other court officers who decide or were con emed in the decision of -previous actions adversely to him." (First Western Devel pment Corp. v. Superior Court(1989) 212 Cal.App.3d 860,867-868,261 Ca1.Rptr. 116.)

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This problem was illustrated in Stafford v. Russell (1962) 01 Cal.App.2d 719,20Ca1.Rptr. 112 (Stafford), a case decided shortly before the enactment of the vexatiouslitigant statutes. In Stafford, the court reaffumed a jud ent that had been affirmed in 10previous writs and appeals by the losing party and upheld order of contempt against himthat included jail time. In so doing, the court made two s ggestions: "(1) any legislativeor state bar committee or law revision commission study' the matter of 'vexatiouslitigation' and the unreasonable burdens placed upon the c urts might well study thelitigation involved here, and (2) the trial courts should be lert to an abuse of our judicialsystem and should take firm action by punishing for conte pt as was done in thiscase." (Id. at p. 722,20 Cal.Rptr. ll2.)

Despite Stafford's second recommendation, he Legislature opted not to punish vexatiouslitigants for past behavior, but to ameliorate future harm b requiring them, per section391.1, to post security for the benefit of their future "victi s." The Legislature alsocurtailed their ability to file new lawsuits by requiring the to obtain leave from thepresiding judge under section 391.7. While not sanctioni g past behavior, section 391does use a litigant's past as gauge in determining his or he future litigation activities. Forexample, subdivision (b)(1) allows a litigant to be declare vexatious in a case-withoutregard to the litigant's behavior in that case-simply becaus the litigant commenced,prosecuted or maintained five litigations during the prece ing seven years that were eitherdetermined adversely, or were unjustifiably permitted to r main pending for at least twoyears without being brought to trial.

Unlike section 391, subdivision (b)(l), which employs sp ific numerical benchmarks,such as "five cases," "seven years," and "two years," the egislature chose to employ theterm "repeatedly" in subdivision (b)(2). Given the speci city in subdivision (b)(l), wemay safely presume if the Legislature intended the term "r peatedly" to simply mean "morethan one time," the Legislature would have said so. Und rstanding the statutory schemeas seeking to prevent future harm based on a litigant's past behavior, we view theLegislature's use of the adverb "repeatedly," as referring t a past pattern or practice on thepart of the litigant that carries the risk of repetition in the c se at hand.

Of course, the risk of repetition is fairly easy to demonstra e in situations where thedefendant seeking security has been the target of previous elitigation attempts or the caseinvolves facts or circumstances similar to those in which e plaintiff sought to relitigate.Indeed, the court in Camerado Ins. Agency, Inc. v. Superi r Court (1993) 12 Ca1.AppAth838,842,16 Ca1.Rptr.2d 42 viewed subdivision (b)(2) of ction 391 as exclusivelyreferencing conduct that occurred in the "very proceeding' in which the defendant seekssecurity. We do not, however, share this view. Section 91 does not expressly requirethe defendant seeking security to be a past victim of the pl intiff's previous relitigationattempts, or that the case in which the vexatious litigant d ennination is sought relate tolitigation in which such attempts were made. In discussi g the purpose of subdivision (b)(2) shortly after section 391 was enacted, the court in Tali ferro v. Hoogs (1965) 237Cal.App.2d 73, 74, 46 Cal.Rptr. 643 observed: "The cons t suer. becomes a serious

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problem to others than the defendant he dogs. By cloggi g court calendars, he causes realdetriment to those who have legitimate controversies to be determined and to the taxpayerswho must provide the courts. Arguably, one who has re atedly relitigated groundlessclaims against one defendant could be required to give see ity before pressing to trial anapparently unfounded claim against a new victim."

Although section 391, subdivision (b)(2) does not require connection between theprevious relitigation attempts and the movant or action in hich security is sought, such aconnection would militate heavily in favor of requiring th plaintiff to provide security.The present case, however, shares no connection with the rbitration matter Holcombattempted to relitigate. Moreover, defendants have not d monstrated that Holcomb hasthreatened to relitigate the current case, or would likely d so ifhe does not prevail.

Accordingly, based on the record before us, we conclude olcomb's previous motion forreconsideration of the district court's order denying his m .on to vacate the arbitrationaward, and superior court action to collaterally attack the istrict court's rulings, do notconstitute evidence sufficient to sustain a finding Holcom "repeatedly" relitigated mattersas required in subdivision (b)(2) of section 391.

4. The Evidence Does Not Support a Finding Holcomb as a Vexatious Litigant UnderSubdivision (b)(3) of Section 391

Defendants also contend the evidence supports a findin under subdivision (b)(3) ofsection 391 (subdivision (b)(3)), which describes a vexati us litigant as one who: "In anylitigation while acting in propria persona, repeatedly files eritorious motions,pleadings, or other papers, conducts unnecessary discove ,or engages in other tactics thatare frivolous or solely intended to cause unnecessary dela " The evidence relied upon bydefendants falls short of the mark, however.

In support of their contention, defendants cite to the MacP erson I case, noting "the 15-page docket evidences ongoing discovery disputes, the re uest to appoint a discoveryreferee, that Holcomb filed a motion for reconsideration d an appeal from the judgmentand, ultimately, that the judgment was affirmed on appeal.' A close review of the docketsheet and other portions of the record discloses little supp rt for a finding under subdivision(b)(3). For example, the vast majority of entries in the 1 -page docket in MacPherson Iare due to motions brought by the defendant, not Holcom. Notably, defendant's requestto appoint a discovery referee, brought concurrently with t e initial discovery motions, failsto demonstrate Holcomb employed tactics that "are frivol us or solely intended to causeunnecessary delay." More important, the first round of discovery motions, and Holcomb'smotion for reconsideration of court imposed discovery san tions occurred during the timeHolcomb was represented by counsel, and therefore do no count for purposes ofsubdivision (b)(3).

It is difficult, if not impossible, to make a determinationresort to the docket sheet of a previous case. Even when

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der subdivision (b)(3) simply bye outcome of a particular

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Moreover, the docket in MacPherson I reflects that the de ndant brought a vexatiouslitigant motion late in the case, a motion the court apparen ly denied. That the court inMacPherson I was intimately familiar with the manner in hich Holcomb conducted thelitigation, and still denied the motion, provides the most r iable evidence in the docketsheet on this subject.

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motion can be successfully divined from the docket-a task that is not always easy-it is oftenimpossible to discern whether the particular motion was c mpletely meritless, or made foran Improper purpose.

In sum, we conclude the evidence presented is insufficien to sustain a finding Holcomb isa vexatious litigant.

Disposition

The orders declaring Holcomb to be a vexatious litigant d requiring the posting ofsecurity are reversed.

FOOTNOTES

Section 391.3 provides: "If, after hearing the eviden e upon the motion, the courtdetermines that the plaintiff is a vexatious litigant and that there is no reasonableprobability that the plaintiff will prevail in the litigation a ainst the moving defendant, thecourt shall order the plaintiff to furnish, for the benefit of e moving defendant, security insuch amount and within such time as the court shall fix."

Section 391.1 provides: "In any litigation pending' any court of this state, at anytime until final judgment is entered, a defendant may mov the court, upon notice andhearing, for an order requiring the plaintiff to furnish secu .ty. The motion must be basedupon the ground, and supported by a showing, that the pla tiff is a vexatious litigant andthat there is not a reasonable probability that he will preva I in the litigation against themoving defendant."

Section 391.6 provides: "When a motion pursuant t Section 391.1 is filed prior totrial the litigation is stayed, and the moving defendant nee not plead, until 10 days afterthe motion shall have been denied, or if granted, until 10 d ys after the required securityhas been furnished and the moving defendant given writte notice thereof. When amotion pursuant to Section 391.1 is made at any time ther after, the litigation shall bestayed for such period after the denial of the motion or the furnishing of the requiredsecurity as the court shall determine."

Section 391.4 provides: "When security that has bee ordered furnished is notfurnished as ordered, the litigation shall be dismissed as to the defendant for whose benefitit was ordered furnished."

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Section 391.7, subdivision (a), provides: "In additio to any other relief provided inthis title, the court may, on its own motion or the motion 0 any party, enter a prefilingorder which prohibits a vexatious litigant from filing any ew litigation in the courts of thisstate in propria persona without first obtaining leave of th presiding judge of the courtwhere the litigation is proposed to be filed. Disobedienc of the order by a vexatiouslitigant may be punished as a contempt of court."

~~. Section 391. 7, subdivision (e), provides: "The clerk ~f the court shall provide theJudicial Council a copy of any prefiling orders issued pursuant to subdivision (a). TheJudicial Council shall maintain a record of vexatious litig~~ts subject to those prefilingorders and shall annually disseminate a list of those persorl~ to the clerks of the courts ofthis state."

2. Section 391, subdivision (b), provides: "'Vexatious litigant' means a person whodoes any of the following: [~] (1) In the immediately prec ding seven-year period hascommenced, prosecuted, or maintained in propria persona at least five litigations other thanin a small claims court that have been (i) finally detennin adversely to the person or (ii)unjustifiably permitted to remain pending at least two yea s without having been brought totrial or hearing. [,-0 (2) After a litigation has been finally etermined against the person,repeatedly relitigates or attempts to relitigate, in propria p rsona, either (i) the validity ofthe determination against the same defendant or defendan as to whom the litigation wasfinally determined or (ii) the cause of action, claim, contr ersy, or any of the issues of factor law, determined or concluded by the final determinatio against the same defendant ordefendants as to whom the litigation was finally determin d. [~] (3) In any litigation whileacting in propria persona, repeatedly files unmeritorious otions, pleadings, or otherpapers, conducts unnecessary discovery, or engages in oth r tactics that are frivolous orsolely intended to cause unnecessary delay. [m (4) Has p eviously been declared to be avexatious litigant by any state or federal court of record in any action or proceeding basedupon the same or substantially similar facts, transaction, a occurrence."

1i. We recognize under the federal rules, "a judgment 0 order, once rendered, is final forpurposes of res judicata until reversed on appeal or modifi d or set aside in the court ofrendition," (Martin v. Martin (1970) 2 Ca1.3d 752, 761, 87 Cal.Rptr. 526,470 P.2d 662),and that California courts consider federal judgments to b final for res judicata purposes ifthey are final in the federal courts. (Calhoun v. Franchise Tax Board (1978) 20 Ca1.3d881, 887, 143 Cal.Rptr. 692, 574 P.2d 763.) Nonetheles, the California finality rule isapplied to federal judgments and orders for purposes ofse tion 391. (See Childs, supra, 29Ca1.App.4th at p. 994, 35 Ca1.Rptr.2d 93.)

ARONSON,J.

WE CONCUR: O'LEARY, Acting PJ., and IKOLA, 1.

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