Judge: Elaine W. Mandel, Case: 21SMCV00040, Date: 2023-11-01 Tentative Ruling

Case Number: 21SMCV00040    Hearing Date: November 30, 2023    Dept: P

Tentative Ruling

Cono v. Premtaj, Case No. 21SMCV00040

Hearing Date November 30, 2023

Plaintiff Leo Cono’s Motions for Order Appointing Referee, Motion for Attorney’s Fees, and Motion for Service by Publication

Plaintiff Cono filed motions for an order appointing a referee, for attorney fees and for service by publication in this dismissed case.

After a hearing on February 28, 2022 this court dismissed the complaint for failure to serve. At the hearing, Cono became belligerent and was escorted out of the courtroom by a Sheriff’s Deputy. See 2/28/2022 minute order, pg. 1. Cono appealed the order of dismissal on March 2, 2022, and on May 24, 2022 the Second District Court of Appeal dismissed the appeal. The Court’s dismissal order was based on its conclusion that Cono, as a declared vexatious litigant, was required under Cal. Code of Civ. Proc. §391.7 to obtain leave of the administrative presiding justice before appealing and failed to do so. See 5/24/2022 Dismissal Order (filed with the Superior Court on Augst 1, 2022), pg. 1.

On December 7, 2022 the Court of Appeal dismissed the appeal of this court’s January 26, 2022 order denying his motions for entry of default, for leave to intervene and to continue trial. The dismissal was based on failure to comply with the §391.7 requirements for vexatious litigants.

The court dismissed this case without prejudice on February 28, 2022. Cono appealed the dismissal, and his appeal was rejected. The case is no longer pending. Per the Court of Appeal’s two dismissal orders, Cono is a declared vexatious litigant. Under Cal. Code of Civ. Proc. §391.7, “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 propia persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed[.]”

Once a plaintiff is declared a vexatious litigant, the status follows the litigant to future lawsuits for purposes of requiring prefiling orders. The litigant is not entitled to a new hearing regarding their vexatious status. Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 224. Additionally, a prefiling order may be issued in any lawsuit that is “maintained or pending.”  Prefiling orders are not restricted to newly filed claims. Forrest v. Dep’t. of Corps. (2007) 150 Cal.App.4th 183, 197.

Since Cono is a declared vexatious litigant, the court enters a prefiling order under Cal. Code of Civ. Proc. §391.7(a). No new hearing is required, per Bravo v. Ismaj. Cono must secure counsel or obtain permission from the presiding judge before filing any new litigation. The relief he seeks herein is not available, as the case has been DISMISSED.