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March 4, 2026 Get Citation Alerts Download PDF Add Note

Stewart v. USAA General Indemnity Co. CA4/1

California Court of Appeal

• Citations: None known
• Docket Number: D084464

• Precedential Status: Non-Precedential

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (6.1K)

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Combined Opinion

Filed 3/4/26 Stewart v. USAA General Indemnity Co. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOSEPH D. STEWART, D084464

Plaintiff and Appellant,

v. (Super. Ct. No.
37-2023-00040806-CU-BT-CTL)
USAA GENERAL INDEMNITY
COMPANY et al.,

Defendants and Respondents.

APPEAL from orders of the Superior Court of San Diego County,
Blaine K. Bowman, Judge. Affirmed.

Joseph D. Stewart, in pro per, for Plaintiff and Appellant.

DKM Law Group, Joshua Nathan Kastan and Jessica J. Ross for
Defendant and Respondent.

Joseph D. Stewart, appearing in propria persona, sued USAA General
Indemnity Company (USAA GIC) and USAA Federal Savings Bank (USAA
FSB, together USAA) alleging that information shared by these entities
breached his constitutional right to privacy, intruded into his private affairs,
and breached the implied covenant of good faith and fair dealing. He appeals
from orders: (1) refusing to make a substantive ruling on his ex parte
applications for nunc pro tunc relief; (2) granting USAA’s anti-SLAPP motion

(strategic lawsuit against public participation, Code Civ. Proc.,1 § 425.16);
and (3) declaring him a vexatious litigant. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, Stewart purchased a renter’s insurance policy from USAA
GIC. In 2019, he sued USAA GIC for breach of contract, breach of the
implied covenant of good faith and fair dealing, and negligence. (Stewart v.
USAA GIC (Super. Ct. San Diego County, 2021, No. 37-2019-00011137,
Stewart I.) That action remained pending when, in 2021, Stewart sent a
settlement offer to USAA GIC’s counsel. After receiving no response, he
contacted USAA GIC directly to request coverage. USAA GIC’s counsel
responded with a letter asserting that Stewart had misrepresented the
existence of any duty to defend, explaining that no action was pending
against him, and identifying additional deficiencies. Stewart now claims that
alleged misrepresentations in this letter were based on statements he made
during telephone calls with USAA FSB.

On August 31, 2023,2 Stewart attempted to electronically file the
complaint in this action but the court rejected the filing. Stewart ultimately
filed this action on September 19 alleging that USAA GIC’s counsel made
misrepresentations in the 2021 letter and that USAA GIC improperly shared
his information with USAA FSB. Stewart served USAA on October 27.

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

2 All undesignated date references are to 2023.
2
USAA filed a demurrer, a vexatious litigant motion, and an anti-
SLAPP motion. After hearing argument, the trial court declared Stewart a
vexatious litigant and prohibited him from filing any new litigation in
California without first obtaining leave of the presiding judge. The court also
granted USAA’s unopposed anti-SLAPP motion, concluding that Stewart’s
claims arose from protected activity and he failed to demonstrate a
probability of prevailing.
DISCUSSION
I. NUNC PRO TUNC APPLICATIONS
A. Additional Background
On August 31, Stewart attempted to electronically file the complaint
initiating this action but the trial court rejected the submission because it did
not comply with the court’s e-filing requirements. On September 7, he
attempted to file the complaint again, and the court again rejected the filing
because the document was not text-searchable. Stewart ultimately succeeded
in filing this action on September 19. The court issued the summons on
September 29.
On October 2, Stewart filed an ex parte application (first application)
seeking a nunc pro tunc order that would deem the complaint filed as of
August 31, asserting that absent such relief his claims would be time-barred.
The trial court denied the application because the defendant had not yet been
served. Stewart served USAA with the summons and complaint on October
27. At a hearing, Stewart again sought nunc pro tunc relief (second
application), but the court declined to hear the request on an ex parte basis
because doing so would have eliminated USAA’s statute of limitations
defense. The court instead required Stewart to file a noticed motion. No
noticed motion seeking nunc pro tunc relief appears in the record.

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B. Analysis
Stewart argues the trial court was obligated to rule on the merits of his
applications for a nunc pro tunc order before addressing any other matter in
the case. He relies on the San Diego Superior Court’s electronic filing
requirements for civil actions, which state in part:
“Documents that are determined to be unacceptable for e-
filing by the court due to e-filing system restrictions or for
failure to comply with these requirements will be rejected,
subject to being allowed to be filed nunc pro tunc to the
original submitted date, upon ex parte application and
upon good cause shown.” (SDSC CIV-409, Rev. 1/25.)

He asserts this provision compelled the court to hear and decide his ex parte
requests for nunc pro tunc relief before considering any subsequent issue.
USAA responds that Stewart failed to demonstrate reversible error,
abandoned his request, and in any event the issue became moot once the
litigation proceeded and was resolved on independent grounds. USAA’s
position is well-taken.
California law imposes mandatory procedural prerequisites for any ex
parte application. An applicant must submit a declaration showing
compliance with the notice requirements of rule 3.1204. (Cal. Rules of Court,

rule 3.1204(b).)3 In addition, ex parte papers must be served on the opposing
party at the earliest reasonable opportunity, and “absent exceptional
circumstances, no hearing may be conducted unless such service has been
made.” (Rule 3.1206.) Stewart did not provide notice to USAA before filing
his first application on October 2. The trial court’s denial of that application
was therefore proper and required under the Rules of Court.

3 Undesignated rule references are to the California Rules of Court.
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The court also acted within its discretion in declining to hear Stewart’s
second application on an ex parte basis and directing him to proceed by
noticed motion. A nunc pro tunc order that would backdate the filing of the
complaint and thereby eliminate USAA’s statute of limitations defense is
precisely the type of relief for which formal notice is required. As the
Supreme Court has long held, “notice of motion must be given whenever the
order sought may affect the rights of an adverse party.” (McDonald v. Severy
(1936) 6 Cal.2d 629, 631.) Stewart acknowledged the court’s directive to file a
noticed motion but never filed one, thereby abandoning the request for nunc
pro tunc relief.
Moreover, the question of nunc pro tunc relief became moot. The
litigation continued as though timely filed, and the case was resolved on
separate, dispositive grounds when the court granted USAA’s anti-SLAPP
motion. (See Post, pt. II.) Under these circumstances, even a properly
noticed nunc pro tunc motion would have afforded Stewart no effective relief.
(Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503.)
For these reasons, the trial court committed no error in declining to
reach the merits of Stewart’s ex parte applications. The court adhered to
mandatory procedural rules, properly required formal notice before
considering relief that would materially affect USAA’s rights, and ultimately
adjudicated the case on independent grounds that rendered the nunc pro tunc
issue moot. Accordingly, Stewart has not demonstrated reversible error.
II. ANTI-SLAPP MOTION
A. Additional Background
USAA filed an anti-SLAPP motion which Stewart did not oppose. After
issuing a tentative ruling granting the motion, the trial court conducted a
hearing. When the matter was called, the trial judge cleared both the

5
courtroom and Microsoft Teams and held a confidential hearing regarding
Stewart’s request for a disability accommodation (accommodation request).
The court denied the accommodation request. Once proceedings resumed in
open court, Stewart requested a continuance based on the grounds stated in
his accommodation request; the court denied that request as well.
The court then heard oral argument and confirmed its tentative ruling.
It found Stewart’s claims were based on protected settlement-related
communications or statements made in connection with an issue under
consideration in Stewart I. Noting the motion was unopposed, the court
further found that Stewart failed to carry his burden of establishing a
probability of prevailing on the merits.
B. Analysis
1. No Error Shown in Denying the Accommodation Request
Although his argument is not entirely clear, Stewart appears to
contend the trial court’s denial of his accommodation request deprived him of
the right to be heard on USAA’s anti-SLAPP motion.
This contention fails at the threshold. On appeal, error is never
presumed; rather, we presume the trial court’s ruling is correct. (Denham v.
Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564 (Denham).) It
is the appellant’s burden to affirmatively demonstrate error with an adequate
record. Failure to do so requires the issue to be resolved against the
appellant. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th
181, 187.) The appellate record must include all materials necessary for
review, including transcripts of oral proceedings and relevant documents filed
in the trial court. (Rules 8.120, 8.122(a)(3), 8.224.) Where, as here, no
reporter’s transcript exists for a challenged hearing, meaningful appellate
review is often impossible. (Jameson v. Desta (2018) 5 Cal.5th 594, 608.)

6
California courts are committed to ensuring equal and full access to the
judicial system for persons with disabilities. (Rule 1.100(b).) To that end,
rule 1.100 authorizes requests for accommodations—defined as actions that
ensure court services, programs, or activities are accessible to persons with
disabilities. (Rule 1.100(a)(1), (3).) Such requests may be made in writing, on
an approved Judicial Council form, or orally. (Rule 1.100(c)(1).) A trial
court’s ruling on an accommodation request is reviewed for abuse of
discretion. (Gropen v. Superior Court (2023) 89 Cal.App.5th 1068, 1082.)
Here, Stewart failed to designate critical portions of the record,
including his accommodation request and a reporter’s transcript of the closed
hearing at which the request was considered and denied. In the absence of
these materials, we cannot assess whether the trial court properly exercised
its discretion or correctly applied the governing legal standards. Because
Stewart failed to provide an adequate record, he has forfeited his claim that
the denial of his accommodation request deprived him of the right to be heard
on USAA’s anti-SLAPP motion. That claim must therefore be resolved
against him.
2. No Error Shown in Granting the Anti-SLAPP Motion
A. General Legal Principles
The anti-SLAPP statute authorizes a special motion to strike meritless
claims early in the litigation if the claims “aris[e] from any act of that person
in furtherance of the person’s right of petition or free speech under the
United States Constitution or the California Constitution in connection with
a public issue.” (§ 425.16, subd. (b)(1).) Courts evaluate such motions using a
two-step framework. (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1061 (Park).)

7
At step one, the moving defendant must make a prima facie showing
that the challenged claims arise from protected activity as defined in section
425.16, subdivision (e). (Flatley v. Mauro (2006) 39 Cal.4th 299, 314
(Flatley).) Protected activity includes statements or writings made before or
in connection with judicial proceedings, as well as other conduct in
furtherance of petition or free speech rights on matters of public interest.
(§ 425.16, subd. (e)(1)–(4).) If the defendant satisfies this initial burden, the
analysis proceeds to step two, where the burden shifts to the plaintiff to
demonstrate a probability of prevailing on the merits. (§ 425.16, subd. (b)(1);
Baral v. Schnitt (2016) 1 Cal.5th 376.) To meet this burden, the plaintiff
must show the claim has at least minimal merit. (Navellier v. Sletten (2002)
29 Cal.4th 82, 94.) We review an order granting an anti-SLAPP motion de
novo. (Park, supra, 2 Cal.5th at p. 1067.)
B. Analysis
Stewart does not dispute the trial court’s determination that his claims
arise from activity undertaken by USAA in furtherance of protected speech or
petition rights. Instead, he argues the court failed to consider whether the
“true allegations” of his complaint—namely, the allegedly unlawful sharing of
confidential communications between USAA GIC and USAA FSB—
constituted illegal conduct that falls outside the protection of the anti-SLAPP
statute. Relying on Novartis Vaccines and Diagnostics, Inc. v. Stop
Huntington Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1294–
1295 (Novartis), Stewart contends USAA’s purported illegality precludes
application of section 425.16.
Stewart correctly notes that the anti-SLAPP statute does not protect
conduct that is illegal as a matter of law. (Flatley, supra, 39 Cal.4th at p.
317; Novartis, supra, 143 Cal.App.4th at p. 1296 [harassment, infliction of

8
emotional distress and trespass illegal as a matter of law and not protected
activity].) Where the defendant concedes illegality or the evidence
conclusively establishes it, the statute does not apply. (Flatley, at p. 320.)
This exception, however, has no application here. USAA has not
conceded any illegal conduct. Accordingly, the burden rested squarely on
Stewart to conclusively establish that the assertedly protected activity was
illegal as a matter of law. (Kashian v. Harriman (2002) 98 Cal.App.4th 892,
910–911 [conduct does not lose anti-SLAPP protection merely because it is
alleged to be unlawful or unethical].) Stewart failed to meet that burden. He
cited no authority demonstrating that USAA GIC, USAA FSB, or counsel
acted unlawfully by sharing confidential communications.
To the contrary, the record reflects that Stewart received notice of
information sharing between USAA FSB and USAA GIC, was afforded the
opportunity to opt out, and failed to do so. On this record, there is no basis to
conclude that USAA’s conduct was illegal as a matter of law. USAA therefore
satisfied its burden under step one of the anti-SLAPP analysis. Once that
showing was made, the burden shifted to Stewart to demonstrate a
probability of prevailing on his claims. He failed to do so, as he submitted no
evidence whatsoever in opposition to the motion.
In sum, Stewart has failed to demonstrate any reversible error. His
challenge to the denial of his accommodation request is forfeited by his
failure to provide an adequate record, and his attack on the anti-SLAPP
ruling rests on unsupported allegations of illegality that fall well short of the
stringent standard required to defeat statutory protection. Because USAA
established that Stewart’s claims arise from protected activity, and Stewart
failed to carry his burden of demonstrating a probability of prevailing, the
trial court’s order is affirmed.

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III. VEXATIOUS LITIGANT MOTION
A. Additional Background
In declaring Stewart a vexatious litigant, the trial court relied
extensively on Stewart’s conduct in Stewart I. The court issued a detailed
written order summarizing the procedural history and Stewart’s litigation
conduct in that matter, portions of which are set forth below.
Stewart initiated Stewart I in February 2019, at which time the matter
was assigned to Judge Katherine Bacal. Stewart exercised a peremptory
challenge under section 170.6, and the case was reassigned to Judge Kenneth
J. Medel on March 19, 2019. After Judge Medel sustained USAA GIC’s
demurrer without leave to amend, Stewart appealed. We reversed the ruling.
At an April 1, 2022, case management conference, the minutes reflect that
Stewart made an oral challenge under “section 170” presumably referring to
section 170.6. Judge Medel denied the challenge as untimely. Stewart then
filed a petition for writ of mandate, which was summarily denied.
On April 28, Stewart filed a statement of disqualification for cause
under section 170.3 (first objection). Judge Medel struck the objection on
multiple grounds, including improper service, untimeliness, and the failure to
state a legal basis for disqualification on its face. Days later, Stewart filed a
second objection citing sections 170.3 and 170.4, subdivision (c)(3). Judge
Medel struck the second objection as an improper repetitive challenge and for
failure to state a legal basis for disqualification. Stewart again sought writ
relief, which was summarily denied.
Undeterred, Stewart filed a third objection on May 26, again invoking
sections 170.3 and 170.4, subdivision (c)(3). Judge Medel struck the third
objection, citing its repetitive nature and lack of a legal basis. On June 6,
Stewart filed a fourth objection under the same statutes. The court struck

10
this objection the following day due to improper service, repetition, and the
absence of a legally sufficient basis for disqualification.
On June 9, Stewart filed a fifth objection under the same statutes.
Judge Medel struck the fifth objection as an improper repetitive challenge
lacking any legal basis. Stewart once again petitioned for writ relief, which
was summarily denied. Stewart then filed a sixth objection on July 7. Judge
Medel struck this objection for improper service, repetition, and failure to
state a legal basis. Stewart’s petition for writ relief was summarily denied
and the California Supreme Court later denied review.
Following these events, Judge Medel granted USAA GIC’s unopposed
motion for summary adjudication on the causes of action for breach of the
covenant of good faith and fair dealing and negligence, and dismissed the
remaining claims with prejudice, citing Stewart’s “ ‘failure to participate in
the Trial Readiness Conference and the Advanced Trial Review procedures.’ ”
On September 15—prior to the hearing on Stewart’s motion for new trial—he
filed a seventh objection. On July 15, Judge Medel struck the seventh
statement of disqualification on the same grounds as the prior objections.
B. Analysis
The Legislature enacted the vexatious litigant statutes (§§ 391–391.7)
to reduce abuse of the judicial process by litigants appearing in propria
persona who repeatedly relitigate issues, file meritless papers, and impose
unnecessary burdens on courts and opposing parties. (Shalant v. Girardi
(2011) 51 Cal.4th 1164, 1169.) In ruling on a vexatious litigant motion, the
trial court must evaluate the evidence to determine whether the litigant
satisfies one of the statutory definitions and whether there is a reasonable
probability the litigant will prevail. (Golin v. Allenby (2010) 190 Cal.App.4th
616, 635 (Golin).) To be declared a vexatious litigant, the plaintiff must come

11
within one of the definitions in section 391, subdivision (b). (Morton v.
Wagner (2007) 156 Cal.App.4th 963, 969 (Morton).) The court must further
conclude that the litigant’s conduct unreasonably impacts both the opposing
party and the courts in the manner contemplated by the statute. (Id. at p.
971.)
An order declaring a litigant vexatious is reviewed for substantial
evidence. (Morton, supra, 156 Cal.App.4th at p. 969.) On appeal, the order is
presumed correct, and all findings necessary to support it are implied. (Ibid.)
Reversal is warranted only where no substantial evidence supports the
implied findings underlying the vexatious litigant designation. (Ibid.)
Here, the trial court found Stewart to be a vexatious litigant under
section 391, subdivision (b)(3), which applies where a litigant, while acting in
propria persona, “repeatedly files unmeritorious motions, pleadings, or other
papers” or engages in frivolous tactics or conduct intended solely to cause
delay. Section 391, subdivision (b)(3) imposes no numerical threshold or rigid
temporal requirement; rather, a pattern of frivolous or abusive litigation
conduct is sufficient. (Golin, supra, 190 Cal.App.4th at p. 640.) What
constitutes “repeatedly” and “unmeritorious” is committed to the sound
discretion of the trial court. (Morton, supra, 156 Cal.App.4th at p. 971.)
Stewart argues that substantial evidence does not support the
vexatious litigant finding because his multiple attempts to disqualify Judge
Medel were neither repetitive nor unmeritorious. Although Stewart concedes
that each section 170.3 challenge incorporated the allegations of its
predecessor, he contends each filing added new allegations and therefore
constituted a distinct and meritorious challenge. He further asserts that the
challenges were brought in good faith and had a reasonable probability of
success had they been reviewed by an independent jurist.

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Challenges for cause under section 170.3 are fundamentally different
from peremptory challenges. They are not automatic and must be supported
by a good faith factual showing. (Magana v. Superior Court (2018) 22
Cal.App.5th 840, 865, fn. 8.) Such challenges are not routine motions; rather,
they constitute a direct attack on the impartiality of the judicial officer
presiding over the case. (Id. at p. 865.) Where a statement of disqualification
discloses no legal basis on its face, the judge may properly strike it. (§ 170.4,
subd. (b).) Successive statements of disqualification—particularly those that
are repetitive—are an express statutory ground for striking the filing.
(§ 170.4, subd. (c)(3).)
In support of his contentions, Stewart refers to the declarations he filed
with each of the section 170.3 challenges. Stewart, however, failed to
designate these critical declarations for inclusion in the clerk’s transcript. As
the appellant, Stewart bore the affirmative burden of providing a record
sufficient to demonstrate error. (Maria P. v. Riles (1987) 43 Cal.3d 1281,
1295–1296.) We cannot presume the court erred in striking the declarations.
(Denham, supra, 2 Cal.3d at p. 564.) In sum, we are compelled to follow the
presumption of correctness and affirm the vexatious litigant order,
notwithstanding Stewart’s assertions regarding the merits of filings that are
not before this court.

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DISPOSITION
The orders are affirmed. Respondents are entitled to their costs on
appeal.

O’ROURKE, J.

WE CONCUR:

MCCONNELL, P. J.

DO, J.

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