Judge: Deborah C. Servino, Case: 30-2017-00935903, Date: 2022-09-30 Tentative Ruling
Defendants Ernest K. Jacquet, Kari Kohen-Leasure, E. Alexandre Jacquet, Freedom Capital Partners, LLC and Atomic Creamery, LLC, Mentor Capital Partners, LLC and G. Stephen LeGraw’s motion for an order deeming Plaintiff Darrell Hallett a vexatious litigant, for a prefiling order, and requiring Plaintiff to furnish security in this action is granted in part and denied in part. Defendants’ motion is granted as to finding Plaintiff to be a vexatious litigant and issuing a pre-filing order. As for Defendants’ motion for the court to require Plaintiff to file security, the motion is granted as to Defendants E. Alexander Jacquet and Kari Kohen-Leasure only, but is denied as to the remaining Defendants.
The court considered Plaintiff’s late-filed opposition and Defendants’ reply. The court did not consider Plaintiff’s “Response in Support of Opposition” filed on 9/26/22 (ROA 820), as Plaintiff failed to seek leave of court prior to filing the response.
Defendants’ request for judicial notice (”RJN”) is granted. Plaintiff’s request for judicial notice is denied as irrelevant. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194 [noting that the court may take judicial notice of a recorded deed, but declining to do so where deed was not relevant].)
Merits
The vexatious litigant law (Code Civ. Proc., §§ 391-391.8) was enacted to curb misuse of the court system by self-represented litigants who repeatedly file baseless lawsuits or attempt to relitigate issues that were previously determined against them, and who thereby waste the time and resources of the court system and other litigants. (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169; Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1345.)
Pursuant to Code of Civil Procedure section 391, subdivision (b), there are three discrete ways in which a self-represented individual may be declared vexatious:
(1) Commencing and/or maintaining at least five prior in propria persona suits in the immediately preceding seven-year period 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. (Code Civ. Proc., § 391, subd. (b)(1).) “Finally determined” means that all avenues for direct review (appeal) have been exhausted or the time for appeal has expired. (Childs v. PaineWebber Inc. (1994) 29 Cal.App.4th 982, 994.) Voluntarily dismissing the action counts as an adverse determination, Tokerud v. Capitol Bank Sacramento (1995) 38 Cal.App.4th 775, 779, but interlocutory decisions do not. (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1173; Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406 fn. 4 [action is counted as being within seven-year period, as long as it was filed or maintained during that period, which is measured as of the time the motion is filed].)
(2) Relitigating as an in pro per on more than two occasions either (i) the validity of an earlier final determination against the same defendant or (ii) any of the claims or issues reasonably subsumed within the earlier actions. (Code Civ. Proc., § 391, subd. (b)(2); Holcomb v. United States Bank Nat. Assn. (2005) 129 Cal App.4th 1494, 1504.) There is a split of authority whether the relitigation must be in the same proceeding. (Compare Camerado Ins. Agency, Inc. v. Superior Court (1993) 12 Cal.App.4th 838 [same action], with Holcomb v. United States Bank Nat. Assn., supra, 129 Cal.App.4th at p. 1504 [not necessarily same action].)
(3) Repeatedly filing unmeritorious motions and papers, or otherwise engaging in tactics that are frivolous or solely intended to cause unnecessary delay. It falls within the trial court’s discretion to determine what qualifies as “repeated” and “unmeritorious” motions/tactics. (Code Civ. Proc., § 391, subd. (b)(3); see Morton v. Wagner (2007) 156 Cal.App.4th 963, 971-972 [dozens of motions in a single action].) Even if each filing viewed in isolation might be reasonable, multiple requests for the same relief or for reconsideration of prior rulings might qualify. (See Golin v. Allenby (2010) 190 Cal.App.4th 616, 632.) What constitutes “repeatedly” under section 391, subdivision (b)(2), is not entirely clear. But in Holcomb v. U.S. Bank Nat. Assn., supra, 129 Cal.App.4th at page 1505, the court found that “repeatedly” refers to a past pattern or practice on the part of the litigant that carries the risk of repetition in the case at hand.
The vexatious litigant law provides two sets of remedies. First, in pending litigation, the defendant may move for an order requiring the plaintiff to furnish security on the ground that the plaintiff is a vexatious litigant and has no reasonable probability of prevailing against the moving defendant. (Code Civ. Proc., § 391.1.) If the court finds in the defendant's favor, the judge may order the plaintiff to furnish security in an amount the judge determines. (Code Civ. Proc., § 391.3, subd. (a).) A failure to provide the security is grounds for dismissal. (Code Civ. Proc., § 391.4; Luckett v. Keylee (2007) 147 Cal.App.4th 919, 924.) Second, a court may enter a prefiling order that prohibits a self-represented party who has previously been declared a vexatious litigant from filing any new litigation in a California court without first obtaining permission from the presiding justice or presiding judge of the court where the litigation is proposed to be filed. (Code Civ. Proc., § 391.7, subd. (a).) Permission to file may be granted only when it appears that the new litigation has merit and has not been filed for the purpose of harassment or delay. (Code Civ. Proc., § 391.7, subd. (b).)
Here, Defendants contend that Plaintiff is a vexatious litigant under all three grounds – filing and losing more than five in pro per actions in the last 7 years, repeatedly relitigating the same claims, and engaging in frivolous tactics in attempts to coerce a settlement in this action. (Code Civ. Proc., § 391, subds. (b)(1)-(3).) Because as discussed below Defendants make the requisite showing under subdivision (b)(1), the other grounds need not be addressed here.
Defendants presented evidence that Plaintiff has unsuccessfully commenced, prosecuted, or maintained up to eight lawsuits in the past seven years. Three of the six actions that Plaintiff has commenced against Defendants have been dismissed. Plaintiff’s claims against Irvine Market Place were dismissed when Plaintiff failed to appear for trial. (RJN, Exh. D.) Plaintiff’s first Florida action against Jacquet was voluntarily dismissed by Plaintiff. (RJN, Exh. F.) Plaintiff’s Rhode Island action against the Defendants was dismissed by the court. (RJN, Exh. I.)
Plaintiff unsuccessfully accused his ex-wife’s dissolution attorney of misconduct before of the California Supreme Court. (RJN, Exh. N.) After being unsuccessful in reporting Plaintiff’s ex-wife’s attorney, Plaintiff filed suit against the attorney. There, the attorney moved for and obtained summary judgment. (RJN, Exh. M.)
Plaintiff abandoned an untimely appeal related to his marriage dissolution. (RJN, Exh. L.) The vexatious litigant statute includes appeals dismissed as untimely. (See Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1173-1174 [including two in pro per appeals dismissed for untimeliness in computation of unsuccessful actions under Code Civ. Proc., § 391, subd. (b)(1)]; In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 1005-1006 [declaring appellant vexatious litigant based on appeals of numerous orders in a marital dissolution].)
In Hallett v. Arctic Cat, Inc., the court dismissed the action with prejudice when Plaintiff failed to appear to two hearings on an Order to Show Cause re: Sanctions/Dismissal. (RJN, Exh. K.) Plaintiff declares, however, that he accepted an out of court settlement, so the case was dismissed. (Hallett Decl., at ¶ 14.)
Finally, in a federal action, Hallett v. St. Liberty, LLC, Plaintiff sued a lending institution after the defendants repossessed his boat. The court dismissed without prejudice four of Plaintiff’s five causes of action and granted Plaintiff the opportunity to amend his complaint. Plaintiff did not file an amended complaint and the court dismissed the action on December 10, 2018. (RJN, Exh. O.)
Even discounting Hallett v. Arctic Cat, Inc. based on Plaintiff’s claim of a settlement, Defendants have shown that Plaintiff brought at least five in pro per actions within the last seven years that Plaintiff lost or had dismissed. Defendants have thus shown Plaintiff to be a vexatious litigation under Code of Civil Procedure section 391, subdivision (b)(1). This is sufficient for the court to deem Plaintiff a vexatious litigant. The motion to deem Plaintiff a vexatious litigant is granted.
The Court grants Defendants’ motion to enter a prefiling order, which prohibits Plaintiff from filing any new litigation in the courts of this state in pro per 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. (Code Civ. Proc., § 391.7, subd. (a).) Defendant shall prepare and submit for the Court’s signature the mandatory Judicial Council Form VL-100. The Clerk shall provide the Judicial Council a copy of the signed VL-100 form. (Code Civ. Proc., § 391.7, subd. (f).)
To determine whether Plaintiff should furnish security, Defendants must show that Plaintiff has no reasonable probability of prevailing against them.
As to Ernest Jacquet and Freedom Capital Partners
Defendants contend that Plaintiff has no reasonable probability of prevailing on his fraud, misrepresentation, defamation, and intentional infliction of emotional distress (“IIED”) claims against Ernest K. Jacquet and Freedom Capital Partners because they prevailed against him in their Florida action on their own fraud, defamation, and IIED claims against him. (RJN, Exhs. P, Q, R.) Defendants contend that because their claims raised many of the same issues as Plaintiff’s, those findings will apply here to prevent Plaintiff from proving the elements of his causes of action. In other words, Plaintiff will be barred by collateral estoppel from attacking the findings of fact in the Florida action. (Mot., at pp. 10-11.)
The California Supreme Court explained that the term “res judicata” is imprecise, as it has been used “as an umbrella term encompassing both claim preclusion and issue preclusion” and as a synonym for claim preclusion. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823-824.) This inconsistency has “caused some confusion.” (Id. at p. 823.) To avoid future confusion between the two types of preclusion, which have different requirements, the California Supreme Court endorsed the use of the terms “claim preclusion” and “issue preclusion.” (Id. at p. 824.)
Claim preclusion “bar[s] relitigation of [a] claim altogether” where a second suit involves; “(1) the same cause of action (2) between the same parties [or those in privity with them] (3) after a final judgment on the merits in the first suit.” (Id. at p. 824.) Issue preclusion bars “a party to the first lawsuit, or one in privity with a party” to the first lawsuit, from relitigating issues that were “actually litigated” and “conclusively resolve[d]” in the first lawsuit. (Ibid.) Unlike claim preclusion, issue preclusion does not bar entire causes of action, but prevents relitigation of previously decided issues and can be raised by one who was not a party or privy in the first suit. (Ibid.)
The first issue with Defendant’s argument is that there is no showing that the judgment in the Florida action is final. Under California law, a judgment is not final for purposes of res judicata during the pendency of and until the resolution of the appeal. (The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 780.) The second issue is that while the complaints in the Florida action and this action overlap, they are not the same. Defendants Ernest Jacquet and Freedom Capital Partners’ success in their Florida action against Plaintiff does not necessarily preclude him from establishing his claims for fraud, defamation, and intentional infliction of emotional distress against them. For these reasons, Defendants have not shown that Plaintiff has no reasonable probability of prevailing on his claims against Ernest Jacquet and Freedom Capital Partners.
As to E. Alexandre Jacquet
The basis of Plaintiff’s defamation and IIED claim against E. Alexandre Jacquet is his allegation that in October 2017, E. Alexandre Jacquet “filed patently false information in [his] declarations with the California Superior Court to obtain retaliatory restraining orders against Plaintiff.” (Fourth Amended Complaint [“4AC”], at ¶ 179; see 4AC, at ¶ 196.)
Pursuant to Civil Code section 47, subdivision (b), the litigation privilege “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” [¶] The litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the intent to harm. Although originally applied only to defamation actions, the privilege has been extended to any communication, not just a publication, having ‘some relation’ to a judicial proceeding, and to all torts other than malicious prosecution.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 912-913 [internal citations omitted].) E. Alexander Jacquet’s declarations filed with the court are privileged statements under Civil Code section 47(b), and cannot be a basis for a defamation or IIED cause of action. Accordingly, Defendants have shown Plaintiff has no reasonable probability of prevailing against E. Alexandre Jacquet.
As to Kari Kohen-Leasure
As with E. Alexander Jacquet, Plaintiff sues Kohen-Leasure for defamation and IIED. He again relies on her declarations filed in the restraining order proceeding. But he also alleges she “badmouth[e]d him on Yelp” by replying to reviews stating that the previous owner mismanaged Frozen7. (4AC, at ¶¶ 180, 192.)
At his deposition, Plaintiff could not recall the friends who told him about Kohen-Leasure’s posts, but he testified he had seen them and had print outs of them. (Kim Decl., Exh. A at p. 141 [ROA 762].)
Those posts are not presented here, and Plaintiff does not substantively respond in his opposition to Defendants’ contention that he cannot prove his claims against Kohen-Leasure. (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc./Obayashi Corp. (2003) 111 Cal.App.4th 1328, 1346; Huntington Beach Police Officers' Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 504.) Defendants have shown Plaintiff has no reasonable probability of prevailing against Kohen-Leasure.
As to Stephen LeGraw and Mentor Capital Partners, LLC
Plaintiff asserts a single cause of action for misrepresentation against Defendants Stephen LeGraw and Mentor Capital Partners, LLC. Plaintiff alleges that they misrepresented that they intended to raise outside capital, stating they were “confident they could get other investors onboard.” (4AC, at ¶ 124.)
Defendants contend the alleged statement of confidence was a nonactionable opinion. (Mot., at pp. 14-15.) But the statement that they intended to raise outside capital, which is also alleged, is not an opinion. Plaintiff further alleges that these Defendants in fact did not try to raise outside capital. (4AC, at ¶ 126.) Accordingly, Defendants have not shown that Plaintiff has no reasonable probability of prevailing on his claims against Defendants LeGraw and Mentor.
No later than November 10, 2022, Plaintiff is ordered to furnish security in the amount of $172,142.86. (Code Civ. Proc., § 391.3.) If Plaintiff fails to furnish the security as ordered, Plaintiff’s 4AC shall be dismissed. (Code Civ. Proc., § 391.4.)
The Court hereby vacates the November 4, 2022 hearing on the motion to dismiss, the November 7, 2022 jury trial, the February 3, 2023 hearing on the motion to quash subpoena, and the February 17, 2023 motion to appear pro hac vice. The litigation is stayed until 10 days after the required security has been furnished and the Defendants have been given written notice of it. Once the stay is lifted, the parties may schedule hearings on the previously scheduled motions and the jury trial will be rescheduled.
The Court schedules a status conference regarding furnishing security and/or dismissal for December 16, 2022 at 9 am in Department C21.
Defendants shall give notice of the ruling, the Order, and the December 16, 2022 status conference.