Filed 8/1/23 Steshenko v. Foothill-De Anza Community College 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

GREGORY STESHENKO,

Plaintiff and Appellant,

v.

FOOTHILL-DE ANZA COMMUNITY 

COLLEGE DISTRICT et al.,

Defendants and Respondents.

 H048838

 (Santa Clara County

 Super. Ct. No. 19-CV-360490)

Gregory Steshenko appeals from the trial court’s order declaring him a vexatious 

litigant subject to a prefiling order and requiring his posting of security, which he did not 

pay. We reject Steshenko’s challenge to the trial court’s jurisdiction and find the record 

belies Steshenko’s claims of error as to both the vexatious litigant determination and the 

order for posting of security for the benefit of the moving defendants, Natividad Medical 

Center and Community Hospital of the Monterey Peninsula (Hospitals). As to the trial 

court’s order directing Steshenko to post security for the benefit of defendants who orally 

joined the motion without notice, Steshenko fails to establish that he was prejudiced 

except as to defendants Foothill-De Anza Community College District and its 

individually named employees. We will therefore modify the order to impose a security 

only for the benefit of the moving defendants, employees of the Hospitals sued in their 
2

individual capacities, Spectra Laboratories, and the Spectra employee sued in her 

individual capacity. As modified, we affirm. 

I. BACKGROUND1

This lawsuit is neither the first nor the last Steshenko has filed in connection with 

his 2016 enrollment in De Anza College’s medical laboratory technician program and its 

requirement of a clinical externship with a medical laboratory. The operative complaint 

sets forth the following causes of action: (1) age discrimination; (2) violation of 

constitutional equal protection guarantees; (3) violation of constitutional due process 

guarantees; (4) violation of the constitutional right to free public education; (5) tort of 

coercion to perform gratuitous service work; (6) failure to pay the minimum wage; 

(7) breach of contract; (8) intentional infliction of emotional distress; (9) negligence; 

(10) unfair business practices; and (11) illegal expenditure of taxpayer funds. 

In February 2020, defendants Community Hospital of the Monterey Peninsula and 

Natividad Medical Center filed a motion for a vexatious litigant prefiling order and 

requested that Steshenko be required to furnish security. They contended that Steshenko 

had “personally maintained at least eight litigations outside small claims court that [had] 

1 We grant respondents’ request for judicial notice of the registers of actions in 

Santa Clara County case numbers 17CV317602 and 21CV391490. (Evid. Code, §§ 452, 

subd. (d), 459; RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 

Cal.App.5th 413, 418, fn. 2.) Steshenko’s request for judicial notice of 25 separate items 

is granted as to items six through 25—court records from different cases and appeals in 

which Steshenko was a party—and denied as to the balance—e-mails for which there is 

not statutory provision for judicial notice. (Evid. Code, §§ 452, subd. (d), 459.) Our 

granting of judicial notice extends only to the existence of the documents and the results 

reached, but not to the truth of hearsay statements within the documents. (Lockley v. Law 

Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885

(Lockley).) We deny Steshenko’s request to augment the record with documents from 

separate trial court case number 17CV317602. California Rules of Court, rule 8.155(a) 

authorizes augmentation of the record with documents filed or lodged in the superior 

court for the case on appeal, not for a different case. 
3

been finally determined adversely against him in the immediately preceding seven-year 

period.”2

In February and March 2020, Steshenko filed three peremptory challenges to the

same trial judge pursuant to Code of Civil Procedure section 170.6.3 The trial court 

denied the first—prompting Steshenko to petition this court for a writ of mandate and 

request a stay of the trial court proceedings (H047895)—but granted the second challenge

in early March. The clerk of the superior court thereafter notified the parties of the 

reassignment of the case to a different trial judge. The case was again reassigned two 

months later to the current trial judge. 

Before the original trial judge’s recusal, however, a panel of this court issued a 

temporary stay to permit consideration of Steshenko’s petition. 

Despite the stay, Steshenko filed a first amended complaint, which added several 

new defendants.

Once the stay was vacated, the trial court struck all motions and other documents 

filed in the interim, including the first amended complaint and a putative joinder by 

defendants Foothill-De Anza Community College District, Patricia Buchner, Anita 

Muthyala-Kandula, and Lorrie Ranck (College defendants) in the Hospitals’ vexatious 

litigant motion. At the hearing on the motion, however, College defendants, Spectra 

Laboratories and two affiliated individuals (Spectra defendants), and National 

Accrediting Agency for Clinical Laboratory Sciences (NAACLS) made oral requests to 

join the motion. The court granted the vexatious litigant motion, issued a prefiling order, 

and “set[] security for each moving [or joining] defendant at $10,000, which means the 

2 The moving defendants also referenced a number of earlier lawsuits that had 

been adjudicated against Steshenko, including two cases in federal court in Texas and 

California, and two separate cases in Santa Cruz County Superior Court. 

3 Unspecified statutory references are to the Code of Civil Procedure. 
4

total amount of security is $120,000[,]” but noted NAACLS and one of the individual 

Spectra defendants, added in the now-stricken first amended complaint, were no longer 

parties. 

Steshenko timely appealed.4

II. DISCUSSION

A. Legal Standard

The vexatious litigant statutory scheme, codified at section 391 et seq., is 

“designed to curb misuse of the court system by those . . . litigants who, repeatedly 

litigating the same issues through groundless actions, waste the time and resources of the 

court system and other litigants.” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169

(Shalant).) A vexatious litigant is a person who “[i]n the immediately preceding sevenyear 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 . . . .” (§ 391, subd. (b)(1).) 

“Once a person has been declared a vexatious litigant, the court, on its own or a 

party’s motion, may ‘enter a prefiling order which prohibits [the person] from filing any 

new litigation in the courts of this state in propria persona without first obtaining leave of 

the presiding judge of the court where the litigation is proposed to be filed.’ ” (Shalant, 

supra, 51 Cal.4th at p. 1170; § 391.7.) 

Furthermore, “a defendant may move the court, upon notice and hearing, for an 

order requiring the plaintiff to furnish security . . . based upon the ground, and supported 

4 Generally, “an order requiring a plaintiff to furnish security as a vexatious 

litigant is not appealable. If plaintiff fails to furnish the security as ordered, the action 

will be dismissed and the appeal will lie from the judgment or order of dismissal.” 

(Childs v. PaineWebber Inc. (1994) 29 Cal.App.4th 982, 988, fn. 2.) Although Steshenko 

appealed without a judgment or order of dismissal, “in the interest of justice and to 

prevent unnecessary delay, a reviewing court may deem the order appealed from as 

incorporating a judgment of dismissal and treat the notice of appeal as applying to that 

dismissal.” (Id. at p. 988, fn. 2.) We elect to do so here. 
5

by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable 

probability that they will prevail in the litigation against the moving defendant.” 

(§ 391.1.) “[I]f, 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.” (§ 391.3, subd. (a).) The purpose for the security 

requirement is “to minimize the number of frivolous filings.” (Devereaux v. Latham & 

Watkins (1995) 32 Cal.App.4th 1571, 1582, disapproved on another ground by Moran v. 

Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 785, fn. 7.) A plaintiff’s 

failure to furnish that security is grounds for dismissal. (§ 391.4.)

“We review the trial court’s order declaring a party to be a vexatious litigant for

substantial evidence. [Citation.] We are required to presume the order declaring a

litigant vexatious is correct and imply findings necessary to support that designation. 

[Citation.] A reversal is required only where there is no substantial evidence to imply 

findings in support of the vexatious litigant designation.” (Goodrich v. Sierra Vista 

Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265-1266.) We also review for 

substantial evidence an order requiring a vexatious litigant to furnish security based on 

the court’s determination that the plaintiff does not have a reasonable chance of success 

in the action. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 636.) 

B. Vexatious Litigant Finding and Prefiling Order

Based on the declaration of Elizabeth R. Leitzinger, counsel for Hospitals, the trial 

court found that Steshenko had commenced or maintained at least five “litigations” that 

resulted in adverse final determinations.5 Three of the five are separate appeals stemming

5 Although Steshenko argues that the declaration is inadmissible hearsay, 

“[e]vidence received at a law and motion hearing must be by declaration or request for 
6

from the same lawsuit: Steshenko v. McKay, et al. (N.D. Cal. Nov. 23, 2009, Civ.

No. 09-CV-05543). The first of the three appeals was from the denial of a request for a 

preliminary injunction (No. 13-17095), which the United States Court of Appeals, Ninth 

Circuit affirmed in January 2014. The second was Steshenko’s April 2015 appeal from 

the judgment (No. 15-15625), and the third was his August 2015 appeal from an order 

awarding costs (No. 15-16611).

6 The Ninth Circuit affirmed the judgment and the costs 

order in a single opinion in May 2018.

7 Steshenko petitioned the United States Supreme 

Court for a writ of certiorari, which was denied in January 2019, and for rehearing on the 

petition, which was denied in March 2019. 

The fourth litigation is a different lawsuit, Steshenko v. Gayrard, et al. (N.D. Cal. 

Jul. 22, 2013, Civ. No. 13-CV-03400). The district court dismissed the case under Title 

28, United States Code, section 1915(e)(2)(A), for failing to disclose on his applications 

judicial notice . . . unless the court orders otherwise for good cause shown” (Cal. Rules of 

Ct., rule 3.1306(a)), and the record reflects no hearsay objection or request to take live 

testimony. (See Evid. Code, § 353, subd. (a); Duronslet v. Kamps (2012) 203 

Cal.App.4th 717, 725.) Moreover, the appellate opinions attached as exhibits “come 

within the exception to the hearsay rule for official records.” (Lockley, supra, 91 

Cal.App.4th at p. 885.) 

6

“ ‘A postjudgment order which awards or denies costs or attorney’s fees is 

separately appealable’ ” and generally requires the filing of a “separate, timely notice of 

appeal.” (Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 693-

694; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 

35, 46.) 

7 The Ninth Circuit denied Steshenko’s petition for rehearing and also issued an 

order to show cause why Steshenko should not be sanctioned for filing a frivolous appeal. 

The Ninth Circuit later concluded Steshenko had engaged in “deplorable behavior” 

warranting “double costs and damages to all defendants-appellees” (Fed. R. App. P. 38) 

but declined to sanction him due to doubts regarding the defendants’ ability to collect an 

award or inclination “to expend any additional energy engaged with this plaintiff.”
7

to proceed in forma pauperis that he owned a home.

8

 The Ninth Circuit affirmed the 

dismissal order (No. 15-16397), and the United States Supreme Court denied Steshenko’s 

petition for a writ of certiorari. 

The fifth litigation was Steshenko v. Albee, et al. (N.D. Cal. Oct. 24, 2014, Civ. 

No. 13-CV-04948). The district court dismissed this case in the same order dismissing 

the Gayrard lawsuit, and for the same reason: a substantial and material omission 

regarding his financial status that constituted a “fraud on the Court.” The Ninth Circuit 

affirmed in the same opinion as the Gayrard matter (No. 15-16379), and the United 

States Supreme Court denied the petition for a writ of certiorari. 

1. “Litigations”

Steshenko first argues that his appeals are not “litigations” separate from the 

underlying trial court actions, and that the Ninth Circuit’s “single final determination” of 

multiple appeals in Gayrard and Albee rendered those a single litigation. 

A “litigation” under section 391, subdivision (a) is “any civil action or 

proceeding” and “ ‘includes an appeal or a writ proceeding.’ ” (In re Natural Gas 

Antitrust Cases (2006) 137 Cal.App.4th 387, 395-396, italics omitted; see also Fink v. 

Shemtov (2010) 180 Cal.App.4th 1160, 1165, 1171, 1173-1174 [counting as separate 

litigations an appeal from a judgment following a bench trial and an appeal from a 

postjudgment attorney fees order in the same underlying case, and also treating as 

separate litigations an appeal from an order denying an “Application for Order for 

Service of Process by the Sheriff and/or Registered Process Server” and an appeal 

following judgment in the same case]; see also In re Whitaker (1992) 6 Cal.App.4th 54, 

56 [treating 16 appeals as separate litigations]; In re Marriage of Falcone & Fyke (2012) 

203 Cal.App.4th 964, 1005-1006 [making vexatious litigant ruling based on appeals from 

multiple orders within the same marital dissolution case].) Accordingly, each of 

8 Under federal law, “the court shall dismiss the case at any time if the court 

determines that . . . the allegation of poverty is untrue . . . .” (28 U.S.C. § 1915(e)(2)(A).) 
8

Steshenko’s separately “commenced” appeals constitutes a separate litigation, although 

three of the appeals all arise from the same underlying trial court case.

Because the trial court did not include the underlying trial court proceeding in its 

tally, Steshenko’s reliance on Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 794, 

which stated that “filing an appeal ‘is not a separate proceeding and has no independent 

existence,’ ” is inapt. Moreover, we observe that the Court made its statement in 

determining that a defendant’s appeal did not support a claim for malicious prosecution, 

because it merely sought “ ‘to repel’ plaintiff’s attack,” whereas Steshenko filed his 

appeals as the unsuccessful plaintiff not as a defendant. The law is clear that the 

vexatious litigant statute applies to “appeals and writ petitions filed in the Court of 

Appeal.” (McColm v. Westwood Park Ass’n (1998) 62 Cal.App.4th 1211, 1214

disapproved on another ground by John v. Superior Court (2016) 63 Cal.4th 91, 98.) 

Discounting the underlying lawsuits Steshenko filed, he commenced five separate 

appeals, enough by themselves to qualify under section 391.

Steshenko’s argument that multiple appeals that are heard or ruled on together 

count as only a single litigation also lacks support. Section 391 includes as qualifying

litigations those that have been “commenced, prosecuted, or maintained.” (§ 391, 

subds. (a), (b)(1).) Once “commenced,” a “litigation” will be counted if it is later “finally 

determined adversely to the person” who initiated it. This can be true notwithstanding its 

later treatment by the plaintiff or the court, because once an action is filed it “is 

nevertheless a burden on the target of the litigation and the judicial system.” (Tokerud v. 

Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779 [lawsuit counts as litigation 

even if plaintiff voluntarily dismisses the action, with or without prejudice]; cf. Garcia v. 

Lacey (2014) 231 Cal.App.4th 402, 412, fn. omitted [matters did not qualify as litigations 

within the meaning of section 391 where “no complaint was ever filed and, therefore, no 

action or proceeding was ever commenced”].) Although Albee and Gayrard were 

addressed in a joint opinion by the Ninth Circuit, perhaps for purposes of judicial 
9

efficiency, that does nothing to alter the fact that they were separately “commenced” by 

Steshenko in two district court cases that were filed on different dates in 2013 and 2014. 

2. “Finally Determined”

Steshenko argues further that an appeal from an interlocutory order is not finally 

determined until the eventual judgment disposing of the action becomes final. His 

position is unsupportable. 

Section 391 generally applies to litigations that have been “finally determined 

adversely to the person” (§ 391, subd. (b)(1)(i)) and courts have interpreted the finality 

requirement as meaning that “all avenues for direct review have been exhausted.” (First 

Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 864.) There 

were three appeals from the McKay case. All three were finally determined no later than 

March 18, 2019, when Steshenko’s request for rehearing on his petition for writ of 

certiorari as to the two later appeals was denied. The Albee and Gayrard appeals were 

finally determined as of June 4, 2018, when Steshenko’s petitions for writ of certiorari 

were denied. Each of these five appeals concluded adversely to Steshenko, with petitions 

for rehearing or writ of certiorari denied, and no avenue remained by which he could 

have obtained any type of direct review. 

Relying on Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1502

(Holcomb), Steshenko argues that the adverse disposition of interlocutory appeals, 

however final, cannot be considered “final determinations.” The Holcomb court noted in 

that case that the plaintiff’s “filing of motions for reconsideration and appeal before a 

judgment is final for all purposes would not support a vexatious litigant finding under 

section 391, subdivision (b)(2).” (Id. at p. 1502.) But subdivision (b)(2) of section 391, 

an independent and alternative basis for designation as a vexatious litigant, looks to the 

number of times a litigant seeks to relitigate a claim or issue after a prior adverse ruling 

on that claim or issue has been finally determined, whereas subdivision (b)(1)—operative 

here—looks only to whether each of the tallied litigations has been finally determined, 
10

whether or not that “litigation” was an interlocutory appeal or an appeal from a judgment. 

Holcomb’s treatment of a motion for reconsideration and an interlocutory appeal as not 

constituting “relitigations” of a finally determined issue under section 391, 

subdivision (b)(2) accordingly has no bearing on the outcome here, where it is clear that 

the appeals concluded, with no recourse left for Steshenko to continue contesting the 

underlying orders. 

C. Order to Furnish Security

Steshenko contends the trial court should not have ordered him to pay security 

because there was not substantial evidence to support the order. He further challenges

the amount of security imposed as arbitrary and lacking in evidentiary support.

9

 We 

address first his claims as to the Hospitals, as the moving parties, and then the propriety 

of requiring security for the benefit of the other joining defendants. 

1. No Reasonable Probability of Prevailing Against Hospitals

The required showing that a vexatious litigant has no reasonable probability of 

prevailing against a defendant moving for an order to post security “is ordinarily made by 

the weight of the evidence, but a lack of merit may also be shown by demonstrating that 

the plaintiff cannot prevail in the action as a matter of law.” (Golin v. Allenby, supra,

190 Cal.App.4th at p. 642.) 

The trial court here evaluated the case based on the arguments in the demurrers

previously filed by Hospitals and their employees, affiliated individual defendants Un Sil 

Lee, Linda Delcambre, Leonila Shapiro, and Margaret Humbracht (collectively, Hospital 

defendants).

10

 It concluded that Steshenko could not overcome the various statutes of 

9 At the hearing on the motion, Steshenko stated that he “would not be able to post 

anything” because he is indigent. 

10 Although the demurrers were stricken because they were filed during the stay, 

the Hospitals in their vexatious litigant motion raised the identical legal challenges to the 
11

limitations for his causes of action, and that the other substantive arguments in the 

demurrers persuasively demonstrated Steshenko could not prevail. 

On appeal, as in the trial court, Steshenko points out no defect in the merits of the 

Hospitals’ contention that he lacked a reasonable probability of prevailing on any 

particular cause of action. Other than deriding as “absurd” the trial court’s reliance on 

the Hospitals’ legal challenges (made first in their inoperative demurrer and renewed in 

their vexatious litigant motion) to the sufficiency of the complaint, Steshenko argues only 

that competing motions for summary judgment in his earlier-filed related lawsuit against 

only the College defendants “demonstrate the complexity of the argument and the amount 

of evidence available in connection to the events that gave rise to both cases.”

11

“[I]t is a fundamental principle of appellate procedure that a trial court judgment is 

ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the 

basis of the record presented to the appellate court, that the trial court committed an error 

that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608-

609.) “Stated another way, all presumptions are indulged to support the trial court order 

or judgment ‘on matters as to which the record is silent, and error must be affirmatively 

shown.’ ” (Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 473.) Because it is the 

appellant who bears the burden of affirmatively demonstrating error, a reviewing court 

does not typically rule on contentions “ ‘perfunctorily asserted without argument in 

support.’ ” (People v. Williams (1997) 16 Cal.4th 153, 215.) Steshenko makes no 

reasoned argument and cites no legal authority for the proposition that the trial court’s 

evaluation of the Hospital defendants’ identified challenges to the pleadings was 

complaint and included as exhibits to the motion their previously filed demurrer and 

supporting papers. 

11 We have since affirmed the judgment in favor of the College defendants in 

Steshenko v. Foothill-De Anza Community College Dist. (Jul. 26, 2023, H049871) 

[nonpub. opn.].
12

incorrect. Because we must presume the trial court’s order is correct, his omission 

“amounts to an abandonment of the issue.” (See People ex rel. 20th Century Ins. Co. v. 

Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284.) Steshenko 

accordingly has not met his burden on appeal of affirmatively demonstrating the trial 

court erred in determining that Steshenko had no reasonable probability of prevailing as 

to the Hospitals and that the Hospitals are entitled to security. 

2. Defendants Other than Hospitals

a. Joinder

It was only the Hospitals who initially moved for an order requiring Steshenko to 

post security against their litigation expenses.

12

 Steshenko contends that the trial court 

improperly permitted defendants to orally join the Hospitals’ motion “for the purpose of 

increasing security.”13 Because the inclusion of the joining defendants did not increase 

the per-defendant amount of security, only the total to be posted if Steshenko remained 

committed to pursuing this lawsuit as to all named defendants, we understand 

Steshenko’s argument to be that the trial court erred in ordering any amount of security 

for the benefit of any defendant other than the Hospitals.

Steshenko argues that a joinder is not a motion and does not present any evidence 

or argument, citing Village Nurseries, L.P. v. Greenbaum (2002) 101 Cal.App.4th 26 

(Village) (holding that trial court erred in granting summary judgment in favor of party 

who joined motion) and Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382 

(Decker) (extending Village to joinders in a special motion to strike under § 425.16). The 

trial court, however, relied on Barak v. The Quisenberry Law Firm (2006) 135 

12 The notice of motion identified only Hospitals as the moving defendants. 

13 The record belies Steshenko’s claim in his briefing and at oral argument that the 

trial court “compelled” these defendants to join; we have no basis to construe the trial 

court’s inquiry of the various attorneys for the many defendants as anything other than an 

effort to track who was seeking an order for security.
13

Cal.App.4th 654 (Barak), which disagreed with Decker in declining to extend Village to a 

special motion to strike. (Id. at pp. 660-661.) 

For our purposes, what matters is not the Decker/Barak debate but whether it was 

proper to allow oral day-of-hearing joinders to enlarge the scope of requested relief to 

encompass additional security for the benefit of entities other than the moving Hospitals. 

It was not: unlike the designation of Steshenko as a vexatious litigant and issuance of a 

prefiling order, an order for the posting of security is defendant-specific and may issue 

only on a defendant’s noticed motion. (Compare § 391.1, subd. (a); with § 391.7.) And 

the failure to post security, once ordered, results in a judgment of dismissal that is 

likewise specific to the moving defendant, as is a judgment entered on the grant of a 

defendant’s motion for summary judgment as in Village. We accordingly read Barak and 

Decker as having no application where, as here, a defendant joins a differently situated 

defendant’s motion for an order for security, without engaging with the merits of the 

different claims in which it is named and without prior notice to the plaintiff. 

b. Prejudice

On appeal, however, it does not suffice to argue that the trial court erred by 

permitting other defendants to join the Hospitals’ motion without statutory notice. 

Steshenko must also demonstrate that he was prejudiced by the error, “even if the trial 

court failed to follow a statutory mandate.” (Guardianship of C.E. (2019) 31 Cal.App.5th 

1038, 1054, fn. omitted; see generally Cal. Const., art. VI, § 13; Cassim v. Allstate Ins. 

Co. (2004) 33 Cal.4th 780, 801.) “Because of the need to consider the particulars of the 

given case, rather than the type of error, the appellant bears the duty of spelling out in his 

brief exactly how the error caused a miscarriage of justice. [Citations.]” (Paterno v. 

State of California (1999) 74 Cal.App.4th 68, 106.) Indeed, “our duty to examine the 

entire cause arises when and only when the appellant has fulfilled his duty to tender a 

proper prejudice argument.” (Ibid.) We assess “ ‘legal argument with citation of 

authorities on the points made.’ ” (People v. Stanley (1995) 10 Cal.4th 764, 793.)
14

On appeal, Steshenko makes no argument that any deficiency of notice prejudiced 

him; he argues instead that the perfunctory nature of the oral joinder put nothing before 

the court as to the merits of his causes of action against any of the joining defendants. By 

rearguing their stricken demurrer, the Hospitals disputed the merits of certain causes of 

action—the first, fifth, sixth, seventh, eighth, and tenth causes of action—in which all

Hospital defendants as well as Spectra Laboratories and its employee were likewise 

named. These joining defendants appear to be identically situated to the Hospitals with 

respect to the operative complaint, in which Steshenko grouped the Hospital defendants, 

Spectra, and Spectra’s individually named employee collectively as “Clinical Laboratory 

Defendants” all subject to the same causes of action. The trial court in its order 

specifically referred to the “various statutes of limitations for [Steshenko’s] claims” as 

well as generally referencing other “substantive legal arguments” from the demurrers.

Steshenko on appeal does not explain why the grounds for the Hospital

defendants’ demurrer—to the extent we have concluded these were properly before the 

court—do not support the trial court’s determination that he lacked a reasonable 

probability of prevailing as to any of the Clinical Laboratory defendants. He has 

therefore failed to tender a cognizable claim of prejudice as to these defendants. (See 

Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865 [“the appellant must present 

argument and authorities on each point to which error is asserted, or else the issue is 

waived”].)

The Hospitals did not, however, have occasion to dispute the merits of the second, 

third, fourth, and eleventh causes of action, in which only the College defendants were 

named.

14

 Thus, we see merit in Steshenko’s argument that the perfunctory nature of the 

oral joinder put nothing before the court as to the merits of his causes of action against 

14 The ninth cause of action named only “Entity X and Entity Y” and as such were 

not included in the trial court’s order.
15

the College defendants. The College defendants ventured no such showing and limited 

themselves to those arguments the Hospitals elected to raise in their motion as to causes 

of action and defenses from which the College defendants were excluded. 

Although the College defendants would eventually prevail on their motion for 

summary judgment in Steshenko’s earlier-filed related case—a judgment we have since 

affirmed (Steshenko v. Foothill-De Anza Community College Dist., supra, H049871, 

[nonpub. opn.])—none of the evidence or argument supporting that motion was yet 

before the trial court when it required Steshenko to post security as to each of the College 

defendants. The College defendants had initially filed a written notice of joinder in the 

Hospitals’ motion in June 2020. But not only was that notice stricken along with other 

pleadings filed during this court’s temporary stay, the one-page notice was also devoid of 

any comment, argument, or evidence as to Steshenko’s prospects for prevailing in any 

cause of action in which the College defendants were named. On the record before us, 

nothing before the trial court supported a determination that Steshenko lacked a 

reasonable probability of success on the merits as to any of the College defendants. 

Accordingly, the trial court’s error in allowing the College defendants to join in 

the motion was prejudicial, but its error in allowing all Clinical Laboratory defendants to 

join in the Hospitals’ motion was not.

3. Amount of Security

When the requirements for an order to furnish security are met as to a moving 

defendant, “the court shall order . . . security in such amount and within such time as the 

court shall fix.” (§ 391.3, subd. (a).) The purpose of the security is “to assure payment, 

to the party for whose benefit the undertaking is required to be furnished, of the party’s 

reasonable expenses, including attorney’s fees and not limited to taxable costs, incurred 

in or in connection with a litigation instituted, caused to be instituted, or maintained or 

caused to be maintained by a vexatious litigant.” (§ 391, subd. (c).) Steshenko’s sole 

contentions as to the amount of the security, other than the inclusion of the nonmoving 
16

defendants, is that the amount was “arbitrary” and “ ‘picked out of thin air.’ ” We 

disagree.

Leitzinger, the attorney for Hospital defendants, stated in her declaration that she 

anticipated her clients would “incur attorney fees and costs in defending this action 

through a motion for summary judgment hearing (and potential appeals) in the amount of 

at least $50,000.00.” She therefore requested that Steshenko be “required to post a 

security in the amount of $50,000.00.” As to the Clinical Laboratory defendants, 

similarly situated as they are, the trial court was entitled to rely on the evidence in the 

Leitzinger declaration, coupled with the court’s own experience and expertise to 

determine that $10,000 for each moving defendant was an appropriate sum.

15

 (See 

Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1251 [trial court 

relied on “own experience and expertise in handling complex civil cases” to evaluate the 

attorney hours claimed]; see also Reynolds v. Ford Motor Company (2020) 47 

Cal.App.5th 1105, 1113 [trial court set reasonable hourly rates based on its own 

experience].) 

D. Jurisdiction

Steshenko’s final argument is that the trial judge lacked jurisdiction to rule on the

Hospitals’ motion, on the basis that the case had been reassigned to him during the 

temporary stay. His argument fails to account for the “inherent difference between a 

judge and a court.” (See In re Alberto (2002) 102 Cal.App.4th 421, 427.) A “superior 

court is a court of general jurisdiction” and one who sits as a judge of the superior court 

“exercises a part of the general jurisdiction conferred by the law . . . .” (Singer v. Bogen

(1957) 147 Cal.App.2d 515, 524.) Irrespective of what authority the court had to issue 

orders in this proceeding for the duration of the stay, there is no question that it had 

15 Neither hospital has appealed the trial court’s decision to set security at $10,000 

per moving defendant.
17

authority to rule on the Hospitals’ vexatious litigant motion once the stay was vacated. 

Which judge of the court would hear the motion was a matter within the discretion of the 

court’s presiding judge under California Rules of Court, rule 10.603(b)(1)(A) and (B),

subject only to section 170 et seq. Irrespective of when the current trial judge was 

initially assigned, there can be no dispute that the case continued to be assigned to him at 

the time of the hearing on the Hospitals’ motion. 

Moreover, Steshenko expressly disavowed his current argument in the trial court 

at the hearing on the vexatious litigant motion, telling the trial court: “the stay only 

related to proceedings before the [challenged] judge, because the judge was challenged. 

Nothing else was included in [the] stay, especially discovery was not stayed.” Reminded 

by the trial court that he had “said that all actions were null and void,” Steshenko said, 

“No, it was just initially my initial – initial state of mind. . . . And I was corrected on 

that.” He therefore waived any objection to the authority of this trial judge ruling on the 

vexatious litigant motion. (Cf. In re Richard S. (1991) 54 Cal.3d 857, 866, fn. omitted

[parties’ consent to trial by referee constitutionally empowered to act as judge pro tem 

“waive[s] any claim of error on the basis of failure to strictly comply” with state rule of 

court requiring timely filing of appointment order].)

Independent of his waiver, we note as well that although this case was stayed 

during the pendency of Steshenko’s petition for writ of mandate regarding his first 

peremptory challenge, he nonetheless chose to file two additional challenges while the 

stay was in effect, the second of which was granted and resulted in the reassignment of 

the case to a different judge. “Under the doctrine of invited error, when a party by its 

own conduct induces the commission of error, it may not claim on appeal that the 

judgment should be reversed because of that error.” (Mary M. v. City of Los Angeles

(1991) 54 Cal.3d 202, 212.) Accordingly, because it was Steshenko’s own invitation that 

resulted in the reassignment, he may not now challenge it as void. 
18

Even if we were to overlook Steshenko’s waiver and his invitation of the putative 

error, he cites no authority for his position on the merits—that our temporary stay of a 

nonappealable order divested both the original trial judge of authority to meet his

overarching ethical obligation to recuse when disqualified and the presiding judge of 

authority to reassign a now-unassigned case to a different judge.16 In contrast to an 

automatic stay pending an appeal as of right, our temporary stay was expressly for the 

purpose of our consideration of the issue presented by Steshenko’s petition. Once the 

object of his petition—the removal of a disqualified judge—was met by the judge’s own 

recusal, no further consideration was required. And had the parties timely informed us of 

the reassignment, we would have vacated the stay far earlier. 

III. DISPOSITION

The trial court’s January 29, 2021 order is modified to strike the requirement of

$10,000 in security as to defendant Foothill-De Anza Community College District and 

individual defendants Patricia Buchner, Anita Muthyala-Kandula, and Lorrie Ranck. As 

modified, the order is affirmed. In the interests of justice, each party is to bear its own 

costs on appeal. 

16 Even when a judge is disqualified, the court does not lose jurisdiction and even 

a disqualified judge maintains certain powers, such as “[taking] any action or issu[ing] 

any order necessary to maintain the jurisdiction of the court pending the assignment of a 

judge not disqualified.” (§ 170.4, subd. (a).) 
____________________________

LIE, J.

WE CONCUR:

____________________________

GREENWOOD, P.J.

_____________________________

GROVER, J.

Steshenko v. Foothill-DeAnza Community College

H048838