Judge: Cherol J. Nellon, Case: 23STCV10602, Date: 2023-10-11 Tentative Ruling

Case Number: 23STCV10602    Hearing Date: January 17, 2024    Dept: 14

Nesbit v. Panda Express

Case Background

Plaintiff alleges that Defendant mistreated him at its restaurant based on his race.

On May 5, 2023, Plaintiff filed his First Amended Complaint (“FAC”) for (1)-(2) Negligence Per Se against Defendant Panda Express, Inc. (“Panda”).

On July 6, 2023, Defendant Panda filed its Answer.

Jury Trial is currently set for September 23, 2024.

Instant Motion

Defendant Panda now moves this court for orders (1) designating Plaintiff Andre Nesbit as a Vexatious Litigant, (2) adding Plaintiff’s name to the Vexatious Litigant list, and (3) requiring Plaintiff to post a bond.

Decision

Defendant Panda’s Request for Judicial Notice (“RJN”) is GRANTED.

The “Reply” filed by Plaintiff on January 9, 2024, is STRICKEN and will not be considered, as it is a sur-reply unauthorized by the Rules of Court or any order of this court.

The motion is DENIED.

Governing Standards

Code of Civil Procedure § 391 states, in relevant part, as follows:

            “As used in this title, the following terms have the following meanings:

(a) ‘Litigation’ means any civil action or proceeding, commenced, maintained or pending in any state or federal court.

(b) ‘Vexatious litigant’ means a person who does any of the

following:
(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.”

Section 391.1 states as follows:

“In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security 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 he or she will prevail in the litigation against the moving defendant.

Section 391.2 states as follows:

“At the hearing upon the motion the court shall consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion. Except for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3, no determination made by the court in determining or ruling upon the motion shall be or be deemed to be a determination of any issue in the litigation or of the merits thereof.”

Section 391.3 states, in relevant part, as follows:

“(a) …if, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix.”

Section 391.4 provides:

“When security that has been ordered furnished is not furnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished.”

Section 391.6 states as follows:

“Except as provided in subdivision (b) of Section 391.3, when a motion pursuant to Section 391.1 is filed prior to trial the litigation is stayed, and the moving defendant need not plead, until 10 days after the motion shall have been denied, or if granted, until 10 days after the required security has been furnished and the moving defendant given written notice thereof. When a motion pursuant to Section 391.1 is made at any time thereafter, the litigation shall be stayed for such period after the denial of the motion or the furnishing of the required security as the court shall determine.”

Section 391.7 states in relevant part:

“(a) In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court.”

“Vexatious litigant statutes were created ‘to curb misuse of the court system by those acting in propria person a who repeatedly relitigate the same issues.’ (In re Bittaker (1997) 55 C.A.4^th 1004, 1008). These ‘persistent and obsessive’ litigants would often file groundless actions against judges and other court officers who made adverse decisions against them. (First Western Development Corp. v. Superior Court (1989) 212 C.A.3d 860, 867-868). ‘Their abuse of the system not only wastes court time and resources, but also prejudices other parties waiting their turn before the courts.’ (In re Bittaker, supra, 55 C.A.4^th at p. 1008).”  Bravo v. Ismaj (2002) 99 Cal.App.4^th 211, 220-221.

            Even where litigation has been voluntarily dismissed, it is presumed “finally determined adversely” to the plaintiff. Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4^th 775, 779. A plaintiff may rebut this presumption by presenting evidence that, under the circumstances, the dismissal resulted from a victory or a negotiated compromise – examples include a dismissal after settlement, or a dismissal after the defendant voluntarily surrenders the relief sought. Id. at 779 & fn.3.

Discussion

Defendant Panda identifies nine cases filed by Plaintiff during the last 7 years and finally resolved against him:

(1) Nesbit v. Sunrise Restaurants (C.D. Cal. Case No. 23-cv-02822-SVW) (Filed April 10, 2023, dismissed for failure to state a claim on October 24, 2023);
(2) Nesbit v. City of Indianapolis (S.D. Ind. Case No. 23-cv-00702-JRS) (Filed April 24, 2023, dismissed for failure to state a claim on October 19, 2023);
(3) Nesbit v. Prude (N.D. Ill. Case No. 23-cv-2476) (Filed April 18, 2023, dismissed for lack of jurisdiction on May 8, 2023).

(4) Nesbit v. Speedway LLC (C.D. Cal. Case No. 23-cv-00912-DMG) (filed February 7, 2023, dismissed for failure to state a claim on March 23, 2023);
(5) Nesbit v. Dominos Pizzas LLC (C.D. Cal. Case No. 23-cv-01280-ODW) (filed February 21, 2023, dismissed for failure to state a claim on March 10, 2023);
(6) Nesbit v. Cook County (CD Cal. Case No. 21-cv-05320-MCS) (Filed June 30, 2021, dismissed as frivolous on July 6, 2021);

(7) Nesbit v. Dominos LASC Case No. 23 STCV 06006 (Filed March 20, 2023, dismissed after settlement on June 13, 2023);

(8) Nesbit v. Planet Fitness LASC Case No. 23 STCV 10566 (Filed May 11, 2023, voluntarily dismissed September 26, 2023);
(9): Nesbit v. Wetzel’s Pretzels LASC Case No. 21 STCV 08059 (Filed April 12, 2023, dismissed after settlement on April 26, 2023).

The first problem with this list is that several of the federal cases were dismissed as part of the fee waiver screening process. In federal court, parties who apply for a fee waiver must undergo a screening process in which the assigned judicial officer not only determines whether they are financially eligible for a waiver, but if their case is either (1) frivolous, (2) fails to state a cognizable claim, or (3) is directed against an immune defendant. See 28 U.S.C. 1915(a)(1) & (e)(2)(B). If the reviewing court finds that any one of those criteria applies, the case is immediately dismissed. Cases dismissed pursuant to this review process do not count as “litigations” for purposes of Code of Civil Procedure § 391. Garcia v. Lacey (2014) 231 Cal.App.4^th 402, 411-412.

            The second, third, fifth, and sixth cases were dismissed pursuant to this review process. (Defense RJN Exhibits 4-9, 13-18). Therefore, they cannot be counted toward Plaintiff’s total. This leaves exactly five cases – two federal and three in this court.

            The second problem is that the court’s own records in the seventh and ninth cases reflect that they were dismissed pursuant to a settlement. (Defense RJN Exhibits 21 and 27). Such a dismissal does not constitute a litigation “finally determined adversely” to the Plaintiff. Tokerud supra, 38 Cal.App.4^th at 779 & fn.3.

Defendant Panda argues that a dismissal is still adverse if the settlement is a “token amount.” However, the case to which they cite, Luckett v. Panos (2008) 161 Cal.App.4^th 77, is not on point. In that case, the plaintiff had filed a motion to be removed from the list on the basis that he had prevailed or settled on most of the suits he had been allowed to file during his 16 years on the list. Id. at 90-91. The Court of Appeal did not find the plaintiff’s ability to file and settle or dismiss 20 lawsuits in 16 years a persuasive reason he should be taken off the vexatious litigant list. Id. at 92.

This is a motion by defendant to put plaintiff on the vexatious litigant list, not a motion by plaintiff to be taken off the list. Nor is this court presented with the kind of history that existed in Luckett. The court cannot, under these facts and on this evidence, find that the seventh and ninth cases on the list were “finally determined adversely” to Plaintiff.

That leaves only three cases (the first, third, and eighth) as qualifying litigations finally determined adversely to Plaintiff. He does not fall within the definition of a vexatious litigant supplied in Code of Civil Procedure § 391(b)(1). The court cannot grant the motion.

Conclusion