Filed 6/7/23 Wilkins v. Smith CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

KEENAN WILKINS,

Plaintiff and Appellant,

v.

K. SMITH, et al.,

Defendants and Respondents.

F082992

(Super. Ct. No. BCV-20-100136)

ORDER MODIFYING OPINION 

AND DENYING REHEARING 

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on May 25, 2023, be modified in the 

following particulars:

1. On page 6, the first full sentence which reads “Wilkins has essentially 

forfeited ...” is deleted and the following sentences are inserted in its place: 

“[A] petition for writ of mandate is the exclusive method of obtaining review of a 

denial of a judicial disqualification motion.” (People v. Mayfield (1997) 14 Cal.4th 668, 

811, emphasis added.) We have no occasion to review this claim on appeal.”

2. On the bottom of page 6, insert the following language as a second paragraph 

to footnote 10:
2.

In a petition for rehearing filed on June 5, 2023, 

Wilkins correctly pointed out he previously sought review via 

a writ of mandate. This court denied the writ on June 10, 

2021 (F082596), and the Supreme Court denied review on 

August 26, 2021 (S269451). Nonetheless, the claim is not 

appealable. (§ 170.3, subd. (d).)

There is no change in the judgment. Appellant’s petition for rehearing is denied.

SNAUFFER, J.

WE CONCUR:

LEVY, Acting P. J.

DE SANTOS, J.
Filed 5/25/23 Wilkins v. Smith CA5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

KEENAN WILKINS,

Plaintiff and Appellant,

v.

K. SMITH, et al.,

Defendants and Respondents.

F082992

(Super. Ct. No. BCV-20-100136)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. David R. 

Lampe, Judge.

Keenan Wilkins, in pro. per., for Plaintiff and Appellant.

Rob Bonta, Attorney General, Monica N. Anderson, Assistant Attorney General, 

Alicia A. Bower, David C. Goodwin, Misha D. Igra, and George R. Morris, Deputy 

Attorneys General, for Defendant and Respondent.

-ooOooKeenan Wilkins, a California state prisoner, sued several prison officials after he 

claimed they subjected him to a “degrading/humiliating/unreasonable”1search. 

1 Wilkins’s filings are handwritten. We take slight liberty to correct capitalization 

and punctuation while quoting his writing throughout this opinion.
2.

Ultimately, the defendants, represented by the Attorney General, moved to declare 

Wilkins a vexatious litigant and to require him to furnish security to proceed with the 

lawsuit. (Code Civ. Proc.,2 §§ 391.1 & 391.3.)

The trial court granted the defendants’ motion in its entirety and, after Wilkins 

failed to post security, dismissed the case. (See § 391.4 [dismissal remedy].) Wilkins 

appeals, raising a variety of issues detailed below. We affirm the judgment.

BACKGROUND

While in prison, Wilkins was searched by prison officials. He described the 

search as a “degrading/humiliating/unreasonable act in the ‘nude’ in front of so many 

people --- including ‘women’.”3 He added that he was “coerced” and “threaten[ed]” into 

compliance, otherwise “he would not get” to his “destination” at “California Health Care 

Facility.” 

Amended Complaint4

Wilkins filed an amended complaint on August 19, 2020.5 He alleged several 

causes of action including First, Fourth, and Eighth Amendment violations, privacy 

invasion (Civ. Code, § 43), interference with constitutional rights (Civ. Code, § 52.1), 

intentionally inflicting emotional distress, and mental anguish. The complaint sought 

injunctive relief and unspecified “compensatory” and “punitive” damages. 

2 Undesignated statutory references are to the Code of Civil Procedure.

3 This description is contained within the amended complaint. 

4 The Attorney General demurred to Wilkins’s original complaint and the 

demurrer was sustained with leave to amend. 

5 Unless otherwise stated, all references to dates are to dates in 2020.
3.

Attempted Default Filing

On September 30, Wilkins filled out a “request for entry of default” form.6 The 

request was filed on October 5, but returned on October 9 because it listed the incorrect 

date for the amended complaint and the “Statement of Damages [was] missing.” 

Vexatious Litigant Motion

The Attorney General moved to declare Wilkins a vexatious litigant on 

October 14. The court ultimately judicially noticed 16 recent cases involving Wilkins, 

found all 16 were “finally and adversely determined against him,” and declared Wilkins a 

vexatious litigant. The court also ordered Wilkins to “furnish security in the amount of 

$15,000 within 20 days of entry of [the] order ....” 

Dismissal

Wilkins failed to post the security as ordered. The court subsequently dismissed 

the case upon the Attorney General’s motion. 

DISCUSSION

We address Wilkins’s claims in the following order. First, was Wilkins entitled to 

a default judgment? Second, did the trial judge err by not disqualifying himself from the 

case? Third, did the court err in finding Wilkins was a vexatious litigant? Fourth, did the 

court err in concluding Wilkins lacked a reasonable probability to succeed, effectively 

dismissing the case?

Because we find no merit in any contention, Wilkins is not entitled to relief. We 

will affirm the judgment.

6 CIV-100 is the official request for default form approved for mandatory use by 

the Judicial Council of California. (Cal. Rules of Court, rule 3.1800(a).)
4.

I. No Default Judgment

Wilkins contends “defendants defaulted by failing to timely answer.” The 

Attorney General claims Wilkins “was not entitled to default.” The Attorney General is 

correct.

“When a complaint alleges damages for personal injury, the plaintiff must serve 

on the defendant a statement setting forth the nature and amount of damages being sought 

before a default may be taken.” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 

860.) The statement “ ‘ “ ‘give[s] defendants “one last clear chance” to respond to 

allegations of complaints by providing them with “actual” notice of their exact potential 

liability.’ ” ’ ” (Ibid.; Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1520-1521; see 

§§ 425.11 & 425.115.)

Here, Wilkins’s request for default was rejected because there was no damages 

statement. The record does not contain any evidence he filed and served a damages 

statement.7 (See § 425.11, subd. (d) [requiring service].) Accordingly, he was not 

entitled to a default judgment.8

II. Judicial Disqualification Motion Not Appealable

Wilkins claims the “presiding judge lacked power to act.” He “asserts that the 

clear unambiguous record demonstrates that he served/filed a challenge for cause against 

Presiding Judge Lampe on 1/31/21.” The Attorney General argues Wilkins’s challenge 

7 After the Attorney General moved to declare Wilkins a vexatious litigant, 

Wilkins did file a damages statement and again requested default. But the Attorney 

General’s filing stayed the litigation. (§ 391.6.)

8 The Attorney General further points out it was not served with the amended 

complaint until September 18. The record is not clear enough to decipher proof of 

service. We note Wilkins later, while litigating the default issue in the trial court, 

indicated he utilized section 415.30 to serve the complaint by mail. But the 

accompanying “acknowledgement of receipt” form is incomplete. (§ 415.30, subds. (c), 

(d), & (e); see Judicial Council of California form POS-015 [mandatory “notice and 

acknowledgment of receipt” form.) 
5.

was “untimely,” did not comply with service, and the issue is not reviewable on appeal. 

We agree the claim is not reviewable on direct appeal.

A. Additional Background

After the court found Wilkins was a vexatious litigant, Wilkins filed a “statement 

for disqualification of judge CCP 170.1(6)(iii) [sic].” In the statement, Wilkins alleged it 

was “impossible to have fair proceedings before this judge, who is clearly aligned with 

the Defense against Plaintiff.” The statement concludes by reiterating it “presents [a] 

challenge for cause under Penal Code 170.1(a)(6(A) [sic] ....” 

The court originally denied the “Peremptory Challenge [as] untimely per CCP 

170.6 ....”9 Several weeks later, the court “re-reviewed the matter” and, after “re-reading 

the document,” understood it to present “a challenge for cause.” The court then 

“refuse[d] to consider” the matter because it was improperly served. (See § 170.3, subd. 

(c)(1) [“Copies of the statement shall be served on each party or his or her attorney who 

has appeared and shall be personally served on the judge alleged to be disqualified, or on 

his or her clerk, provided that the judge is present in the courthouse or in chambers.”].) 

B. Analysis

“The determination of the question of the disqualification of a judge is not an 

appealable order and may be reviewed only by a writ of mandate from the appropriate 

court of appeal sought only by the parties to the proceeding.” (§ 170.3, subd. (d); 

People v. Nieves (2021) 11 Cal.5th 404, 498, fn. 13 [“statutory right to impartiality is 

raised through a motion to disqualify an assertedly biased judge ..., the resolution of 

9 See section 170.6, subdivision (a)(2), describing timeliness for so-called 

peremptory challenges.
6.

which is reviewable only be writ of mandate”].) Wilkins has essentially forfeited this 

claim by first raising it on direct appeal.10

III. No Error In Vexatious Finding

As noted, the Attorney General proffered 16 then-recent cases adversely 

determined against Wilkins to allege Wilkins was a vexatious litigant. (§ 391, subd. (b).) 

As he did then and now, Wilkins asserted only one case qualified for vexatious litigant 

status. (Ibid.) The trial court, of course, found all 16 cases qualified and deemed Wilkins 

a vexatious litigant. We find no reversible error.

“ ‘ “The vexatious litigant statutes were enacted to require a person found a 

vexatious litigant to put up security for the reasonable expenses of a defendant who 

becomes the target of one of these obsessive and persistent litigants whose conduct can 

cause serious financial results to the unfortunate object of his attack. The purpose of the 

statutory scheme is to deal with the problem created by the persistent and obsessive 

litigant who has constantly pending a number of groundless actions, often against the 

judges and other court officers who decide or were concerned in the decision of previous 

actions adversely to him.” ’ ” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 634

(Golin).) “ ‘Their abuse of the system not only wastes court time and resources but also 

prejudices other parties waiting their turn before the courts.’ ” (Id. at p. 635.)

Relevant here, a vexatious litigant is a person 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 ... finally determined 

adversely to the person ....” (§ 391, subd. (b)(1).) Litigation “means any civil action or 

proceeding, commenced, maintained or pending in any state or federal court.” (§ 391, 

subd. (a).)

10 Our conclusion applies notwithstanding the fact the court never ruled on the 

motion—it instead “refuse[d] to consider” the motion. This difference is immaterial 

relative to section 170.3.
7.

“ ‘A court exercises its discretion in determining whether a person is 

a vexatious litigant. [Citation.] ... On appeal, we presume the order declaring a litigant 

vexatious is correct and imply findings necessary to support the judgment.’ ” (In re 

Marriage of Deal (2020) 45 Cal.App.5th 613, 621.)

Having reviewed the record, we are satisfied the trial court correctly found at least 

five litigations within seven years were finally determined adverse to Wilkins. Contrary 

to Wilkins’s argument, a final adverse determination includes denial of a writ of certiorari 

in the United States Supreme Court. (Cf. Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 

1172-1173 (Fink) [“summary denial of a writ petition that merely sought relief from 

pretrial rulings and did not constitute the exclusive means of obtaining appellate review 

would not qualify as a litigation finally determined adversely[.]”].)11

Wilkins correctly notes, on the other hand, an attempted filing in federal court 

which is rejected does not constitute a litigation. (Garcia v. Lacey (2014) 

11 Strictly speaking, the appellate record does not contain the 16 cases at issue. 

But those cases are described within various filings in the record. Pursuant to Evidence 

Code section 452, subdivision (d), we judicially notice the following cases: 1) Wilkins v. 

USDC-SAC (9th Cir. Jun. 25, 2020, No. 20-71369); 2) Wilkins v. County of Alameda

(9th Cir. Mar. 17, 2014, No. 13-17060); 3) Wilkins v. Gonzalez (E.D. Cal. May 4, 2018, 

No. 2:16-cv-347-KJM-KJN); 4) Wilkins v. Gonzalez (9th Cir. Aug. 31, 2018, No. 18-

15643); 5) Wilkins v. Gonzalez (2019) 139 S.Ct. 1272 (Mem.); 6) Brown v. Galvin

(E.D. Cal. Feb. 7, 2019, No. 2:16-cv-02629); 7) Brown v. Galvin (9th Cir. Jul. 31, 2019, 

No. 19-15468);8) Brown v. Galvin (2020) 140 S.Ct. 2759 (Mem.); 9) Wilkins v. 

Baughman (E.D. Cal. Feb. 6, 2019, No. 2:17-cv-1368); 10) Wilkins v. Baughman

(9th Cir., Sept. 18, 2019, No. 19-15344); 11) Wilkins v. USDC-CASF (9th Cir. Sept. 19, 

2018, No. 18-71956); 12) Wilkins v. County of Stanislaus (9th Cir. Apr. 24, 2019, 

No. 18-16232; 13) Wilkins v. County of Stanislaus (2019) 140 S.Ct. 670 (Mem.); 

14) Wilkins v. USDC-CASF (9th Cir. Apr. 14, 2014, No. 13-73523; 15) Wilkins v. 

Alameda County (N.D. Cal. Mar. 11, 2015, No. 5:14-cv-2516); and 16) Wilkins v. 

McGuire (S.D. Cal. Oct. 10, 2017, No. 3:17-cv-1385).

Even if we discount successive appeals within the same case, there remain more 

than five distinct finally determined adverse actions. (But see Fink, supra, 

180 Cal.App.4th at p. 1173 [two appeals from same case count as two litigations].) 
8.

231 Cal.App.4th 402, 412.) But none of Wilkins’s federal cases were rejected—meaning 

his federal filings were successfully initiated, but later dismissed or denied. In sum, the 

trial court did not err in finding Wilkins was a vexatious litigant.

IV. No Error In Requiring Security

Wilkins argues the “security order was error” and “the court asserted without 

reasoning/explanation that [he] did not have a reasonable probability of prevailing ....” 

The Attorney General contends otherwise, and we agree. 

“Section 391.1 permits a defendant to move for an order requiring a plaintiff to 

post security. Under section 391.3, if the court determines that the plaintiff is a vexatious 

litigant and has no reasonable probability of prevailing, it shall require the plaintiff to 

post security.”12 (Singh v. Lipworth (2005) 132 Cal.App.4th 40, 44, fns. omitted.) The 

motion “shall be based upon the ground, and supported 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, subd. (a).)

In ruling on a motion to furnish security, the court does not simply “assume the 

truth of [the] plaintiff’s alleged facts ....” (Moran v. Murtaugh Miller Meyer & Nelson, 

LLP (2007) 40 Cal.4th 780, 782.) Rather, “a court’s decision that a vexatious litigant 

does not have a reasonable chance of success in the action is based on an evaluative 

judgment in which the court weighs the evidence. If there is any substantial evidence to 

support the court’s determination, it will be upheld.” (Golin, supra, 190 Cal.App.4th at 

p. 636; Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1148 [“[w]e presume that the 

12 Security “means an undertaking 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).)
9.

court’s order is supported by the record” if there exists substantial evidence supporting 

it].)

The record here supports the trial court’s order. Most importantly, the Attorney 

General disputed the allegations and the trial court had the opportunity to personally 

observe Wilkins. While it is true the appellate record does not contain a reasoned 

decision on the probability-of-success issue, no such decision is required. (See Golin, 

supra, 190 Cal.App.4th at p. 636 [appellate court “impl[ies] findings necessary to support 

the judgment”].) We hold the trial court was within its right to find Wilkins did not have 

a reasonable chance to succeed on his lawsuit.

In so holding, we acknowledge prisoners “retain some Fourth Amendment 

rights ....” (Bell v. Wolfish (1979) 441 U.S. 520, 558; People v. Robinson (2010) 

47 Cal.4th 1104, 1120 [“ ‘convicted criminals do not enjoy the same expectation of 

privacy that nonconvicts’ have”].) We hold the trial court here did not abuse its 

discretion in finding Wilkins was unlikely to succeed on his claims prison officials 

violated his rights while conducting a search.

DISPOSITION

The judgment is affirmed. Each party to bear its costs.

SNAUFFER, J.

WE CONCUR:

LEVY, Acting P. J.

DE SANTOS, J.