Judge: Daniel M. Crowley, Case: 22SMCV01180, Date: 2023-04-07 Tentative Ruling
Case Number: 22SMCV01180 Hearing Date: April 7, 2023 Dept: 207
Background
Plaintiff Kavi Virk (“Plaintiff”) brings this action against
Defendants Radical Studios, Inc., Matthew Berger, and Jesse Burger
(collectively “Defendants”) alleging fraud by Defendants in connection with two
contracts between the parties. The parties have a long history which is too
long to fully recount here, but has involved several different lawsuits between
the parties, some of which are still pending in other departments of the Los
Angeles Superior Court. Defendant Radical Studios, Inc., is a film studio which
appears to have contracted with Plaintiff to act as a consultant in connection
with certain films. Plaintiff’s Complaint in this matter, filed July 22, 2022,
asserts one cause of action for fraud against all Defendants, alleging
Defendants fraudulently induced him to enter into contracts, including one for
a film called “Aladdin.”
On October 11, 2022, the Court sustained Defendants’
demurrer to Plaintiff’s Complaint without leave to amend pursuant to Code Civ.
Proc. § 430.10(c) as there was another action pending between the same parties
on the same cause of action.
Defendants now move to have Plaintiff deemed a vexatious
litigant under Code Civ. Proc. § 391. Plaintiff opposes their motion.
Request for Judicial Notice
Defendants and Plaintiff each ask the Court to take judicial
notice of Court records in this and other litigation in the state of
California. The Court GRANTS these requests.
Objections to Evidence
Defendants’ objection to paragraph 2 of the Declaration of
Kavi Virk is SUSTAINED as unsupported legal conclusion. Defendants’ remaining
objections to the Declaration of Kavi Virk are OVERRULED.
Legal Standard
The vexatious litigant statutes codified at Code Civ. Proc. §§
391-391.8 “were enacted in 1963 to curb misuse of the court system by those acting
in propria persona who repeatedly relitigate the same issues. 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¿(1997) 55 Cal.App.4th
1004, 1008.)
Code Civ. Proc. § 391(b) defines a “Vexatious litigant” as
a person who does any of the following:
(2) After a litigation has been finally determined
against the person, repeatedly relitigates or attempts to relitigate, in
propria persona, either (i) the validity of the determination against the same
defendant or defendants as to whom the litigation was finally determined or (ii)
the cause of action, claim, controversy, or any of the issues of fact or law,
determined or concluded by the final determination against the same defendant
or defendants as to whom the litigation was finally determined.
(3) In any litigation while acting in propria
persona, repeatedly files unmeritorious motions, pleadings, or other papers,
conducts unnecessary discovery, or engages in other tactics that are frivolous
or solely intended to cause unnecessary delay.
(4) Has previously been declared to be a vexatious
litigant by any state or federal court of record in any action or proceeding
based upon the same or substantially similar facts, transaction, or occurrence.
(5) After being restrained pursuant to a restraining
order issued after a hearing pursuant to Chapter 1 (commencing with Section
6300) of Part 4 of Division 10 of the Family Code, and while the restraining
order is still in place, they commenced, prosecuted, or maintained one or more
litigations against a person protected by the restraining order in this or any
other court or jurisdiction that are determined to be meritless and caused the
person protected by the order to be harassed or intimidated.
(C.C.P. § 391(b).)
The vexatious litigant statutes provide “two distinct and complementary
sets of remedies,” one applicable in “pending litigation” and the other applicable
to “new litigation.” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1171.) The
first remedy “is an order to furnish security” based on a finding that “the plaintiff
is a vexatious litigant” and “there is not a reasonable probability that [the litigant]
will prevail.” (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494,
1499; CCP §§ 391.1-391.4, 391.6.)¿ A defendant must move for an order to furnish
security. If a plaintiff is ordered to furnish security and fails, the action “shall
be dismissed as to the defendant for whose benefit it was ordered furnished.” (C.C.P.
§ 391.4.) “‘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.” (C.C.P. § 391(c).)
The second remedy “authorizes the court to ‘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
judge of the court where the litigation is proposed to be filed.’” (Holcomb,
supra, 129 Cal.App.4th at 1499-1500; C.C.P. § 391.7.) These remedies may be
used in tandem. (Id. [prefiling order “is in addition to the other remedies
provided…”].) A defendant may move the Court for such relief “at any time until
final judgment is entered.” (C.C.P. § 391.1(a).)
A court may retain jurisdiction even after an action has been
dismissed for purposes of a motion to declare a pro per plaintiff a vexatious litigant.
(Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1024.)
Analysis
Defendants correctly argue Plaintiff’s opposition was
untimely filed on March 28. Pursuant to Code Civ. Proc. § 1005(b), Plaintiff’s
deadline to file an opposition was March 24. Nonetheless,
the Court in its discretion will consider Plaintiff’s opposition. (CRC, rule
3.1300(d).)
Defendants argue Plaintiff is a
vexatious litigant under the first three categories set forth in Code Civ.
Proc. § 391(b). In attempting to show Plaintiff has commenced, prosecuted, or
maintained more than five litigations in the last seven years as a pro per
litigant under section 391(b)(1), Defendants point to several other court
actions which Plaintiff was a party to, including Los Angeles Superior Court
cases 20SMCV00596, SC129304, and SS027259, as well as the instant
action, 22SMCV01180. The Court finds these four actions do not satisfy the
requirements of section 391(b)(1), which requires such actions be “finally
determined adversely” to Plaintiff. The 20SMCV00596
action has not been finally determined adversely to Plaintiff, it remains
pending and is set for trial in December of this year. There is currently still
an appeal pending in the SC129304 action, which
means that action has not been finally determined. In the SS027259, Plaintiff was a defendant and thus did not
commence, prosecute, or maintain that action. In the instant 22SMCV01180 action, while the Court has sustained
Defendants’ demurrer without leave to amend, there has been no judgment entered
against Plaintiff.
The Court thus will not consider the 20SMCV00596, SC129304,
SS027259, and 22SMCV01180 actions in determining whether Plaintiff meets the
definition of vexatious litigant under section 391(b)(1). Plaintiff argues he
does not meet the requirements of section 391(b)(1) because “In the last nearly
50 (fifty) years – not just 7 (seven) years” he has “only filed this 1 (one)
civil unlimited “verified” complaint (22SMCV01180) as an in pro-per plaintiff.”
(Virk Decl. at ¶6.) Plaintiff reads section 391(b)(1) too narrowly. The
question is not whether Plaintiff has filed five verified complaints in
unlimited civil actions, it is whether he has commenced, prosecuted, or
maintained five “litigations” which were not brought in small claims court.
“Litigation,” for purposes of determining vexatious litigant
status, means “any civil action or proceeding, commenced, maintained or pending
in any state or federal court.” (C.C.P. § 391(a).) The term includes appeals and
writ petitions. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211.)
Any actions the pro per plaintiff has filed and dismissed counts for the purpose
of the vexatious litigant statute, even if the dismissal is voluntary and without
prejudice, as they still burden the judicial system and the target of the litigation.
(Tokerud v. Capitol Bank Sacramento (1995) 38 Cal.App.4th 775, 779.) It
also does not matter if Plaintiff was represented by an attorney either at the
inception of the case or during a period of the case. If Plaintiff prosecuted
or maintained any part of the litigation within the preceding seven years, that
action counts for purposes of section 391(b)(1). (Stolz v. Bank of America
(1993) 15 Cal.App.4th 217, 225.)
Based on its review of the materials submitted by
Defendants, the Court has identified eight litigations which were commenced,
prosecuted, or maintained by Plaintiff in pro per within the preceding seven
years, as follows:
1.
Appeal B315261 was
commenced by Plaintiff in pro per and has been finally adjudicated adversely to
him (remittitur issued June 8, 2022);
2.
LASC Case No. 19STCV32170
was initially commenced by Plaintiff’s counsel but was subsequently maintained
and prosecuted by Plaintiff in pro per. (Exs. 28-29 to Defendants’ RJN.) It was
subsequently dismissed upon the Court’s granting of terminating sanctions
against Plaintiff and his appeal of this action has been dismissed;
3.
Appeal B323739 was
commenced by Plaintiff in pro per and has been finally adjudicated adversely to
him (remittitur issued February 7, 2023);
4.
LASC Case No. 21STRO00861
was commenced by Plaintiff in pro per and was subsequently dismissed on April
8, 2021. (Ex. 22 to Defendants’ RJN.);
5.
Appeal B317175 was
commenced by Plaintiff in pro per and has been finally adjudicated adversely to
him (remittitur issued January 31, 2023);
6.
Appeal B315157 was
commenced by Plaintiff in pro per and has been finally adjudicated adversely to
him (petition summarily denied by order on September 23, 2021);
7.
LASC Case No. BC721693
was commenced and maintained by Plaintiff even though he briefly substituted
counsel in for the one-day trial in this action. This action was finally adjudicated,
and judgment was entered against Virk on August 12, 2021;
8.
Appeal BV033680 was
commenced by Plaintiff in pro per and has been finally adjudicated adversely to
him (remittitur issued August 9, 2022).
On such facts, the Court finds
Plaintiff satisfies the definition of vexatious litigant as set forth in Code
Civ. Pro. § 391(b)(1). This finding is further bolstered by the evidence
submitted by Defendants concerning Plaintiff’s conduct in the SC129304
action. A full recounting of that conduct is exhaustively detailed in
Defendants’ Request for Judicial Notice and includes numerous motions for
reconsideration and attempts to attack the same finding that Plaintiff was in
default in that action for failing to timely file an Answer. In a June 18,
2021, order entered in that action, the Court found Plaintiff’s repeated
pleadings and refusal to file a proper motion was a “deliberate and tactical”
attempt to delay and defer the entry of judgment in that case. Indeed, in its
October 11, 2022, order denying Plaintiff’s motion to consolidate filed in this
action, this Court noted Plaintiff’s motion was actually an improper collateral
attack on the entry of default against him in the SC129304 action:
Plaintiff’s motion
is instead focused solely on what Plaintiff argues was the improper entry of
default against him in the SC129304 action and the Court’s denial of his motion
for reconsideration in that action. Indeed, Plaintiff appears to seek
consolidation solely because he believes that if the actions are consolidated
the Court “must … set a trial date to adjudicate this dispute on the merits
instead of the default judgment secured by the Plaintiffs.” (Motion at 2.) A
motion to consolidate is not the proper method by which to attack the entry of
default in another action.
(Order at 9.) Such facts indicate
Plaintiff also meets the criteria for a vexatious litigant under Code Civ.
Proc. § 391(b)(3).
In his opposition, Plaintiff
argues he has previously prevailed in other litigation and appeals. (Virk Decl.
at ¶3.) But this fact is irrelevant to a determination of his status as a
vexatious litigant under Code Civ. Proc. §§ 391(b)(1) and 391(b)(3). Plaintiff
also the instant action is a reclassification of small claims action
21IWSC00334 as per a January 28, 2022, order entered in the SC129304 action.
Plaintiff made the same claim in opposing Defendants’ demurrer. As the Court
pointed out in its order sustaining that demurrer, Plaintiff’s argument is
based on an erroneous interpretation of the order in the SC129304 action.
Plaintiff also contends he did not receive proper service by mail or email of
Defendants’ instant motion. Defendants argue they properly served Plaintiff by
email. If an opposing party opposes the motion on its merits, any defects
in service are waived. (Carlton v. Quint (2000) 77 Cal.App.4th 690,
697-698.) Plaintiff filed a written opposition opposing Defendants’ motion on
its merits and thus has waived any alleged defects in service.
Plaintiff also claims Defendant Matthew Berger committed
perjury by stating in a September 12, 2022, declaration that Defendant Jesse
Berger had not been served with process in this action and subsequently
checking a box in a December 2022 Case Management Conference Statement
indicating all parties had been served, have appeared, or have been dismissed.
Plaintiff claims “the court must make a ruling regarding” this allegedly
perjurious declaration. (Virk Decl. at ¶8.) This matter is not properly before
the Court at this time, and it is not clear what ruling Plaintiff is requesting
from the Court. The Court notes there does not appear to be any inconsistency between
these two representations. Defendant Jesse Berger appeared in this action by
filing a demurrer to Plaintiff’s Complaint in September 2022. Thus, it is
perfectly consistent for Defendant Matthew Berger to claim Jesse Berger was
never served with process and also represent in December 2022 that Jesse Berger
had made an appearance in this action.
Defendants’ motion to have Plaintiff declared a vexatious
litigant is GRANTED.
Defendants further request the Court enter a prefiling order
against Defendant pursuant to Code Civ. Proc. § 391.7. Section 391.7 provides: “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 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.” The
Court also finds the entry of a prefiling order to be appropriate here and
GRANTS Defendants’ request for such an order.
Defendants also request the Court issue an order requiring
Plaintiff to furnish security or face dismissal of this action. (C.C.P. § 391.4.)
The Court finds such an order has been mooted by the Court’s sustaining of
Defendants’ demurrer without leave to amend. Plaintiff has no claims pending
against Defendants. Under section 391.4, a plaintiff who fails to furnish
security as required will have their claims dismissed. An order requiring
Plaintiff to furnish security or face dismissal serves little purpose where
Plaintiff’s claims have already been eliminated by demurrer. Further,
Defendants have not put forth any evidence as to the amount of the security
which should be ordered by the Court. A security under section 391.4 is
determined by the reasonable costs and expenses which the defendant expects to
incur in defending the vexatious litigant’s action. In the absence of evidence
of those reasonable costs and expenses from Defendants, the Court has no way to
calculate the security to be furnished by Plaintiff. Defendants’ request for an
order requiring Plaintiff to furnish security is DENIED.
Defendants also ask the Court to award them their attorney’s
fees incurred in bringing this motion. Defendants do not provide any authority
suggesting they can recover those fees and their request is DENIED.
Conclusion
The Court GRANTS Defendants’ motion in part and DENIES it in
part. The Court finds Plaintiff Kavi Virk to be a vexatious litigant within the
meaning of Code Civ. Proc. § 391, and prohibits Plaintiff 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. In all other respects, Defendants’ motion
is denied.