Judge Gail Killefer, Case Number: 22STCV06704, Date: 2023-08-14 Tentative Ruling

PROCEEDING: Request for Order Staying Litigation or, in the alternative, Order to Furnish Security for Vexatious Litigant

sets an OSC re: Status of Appeal for January 31, 2024, at 8:30 a.m. City Defendants are ordered to give notice.

On February 23, 2022, Plaintiff Arthur Lopez filed a Complaint against the California Department of Motor Vehicles and Steven Gordon. On March 28, 2023, the court granted Plaintiff leave to file a Second Amended Complaint (“SAC”).

The SAC added new Defendants including the City of Newport Beach. The SAC alleges eight causes of action:

On July 27, 2023, the Defendants City of Newport Beach, City of Newport Beach Police Department, William Hume, John Lewis, and Kevin Monsoor (collectively “City Defendants”) filed this Motion seeking an Order Staying Litigation Against City Defendants, or in the alternative, For an Order to Furnish Security for Vexatious Litigant.

On September 8, 2023, Defendant Southside Towing filed a Joiner to City Defendants’ Motion. On August 1, 2023, Defendant City of Tustin also filed a Joiner. Plaintiff filed two opposing papers on October 25, 2023. City Defendants filed a reply on October 26, 2023. The matter is now before the court.

Request to Stay action or order to furnish security for vexatious litigant

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.

“[I]f, 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.” (CCP § 391.3(a).) “‘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.” (CCP § 391(c).)

“The vexatious litigant statutes (§§ 391–391.7) are designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants.” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169.)

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452(c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

1) Attached as EXHIBIT A hereto, is a true and correct copy of State of California Vexatious Litigant List as of July 2023.

2) Attached as EXHIBIT B hereto, is a true and correct copy of the Register of Actions in the matter of Arthur Lopez v. California Department of Motor Vehicles et al., filed in Orange County Superior Court on April 28, 2023, as Case No. 30-2023-01322426.

3) Attached as EXHIBIT C hereto is a true and correct copy of the Orange County Superior Court (“OCSC”) Minute Order for OCSC Case No. 30-2023-01322426 (ROA No. 2) in the matter of Arthur Lopez v. California Department of Motor Vehicles et al.

1) The court of appeal docket in Lopez v. Our Lady Queen of Angels Catholic Church, Court of Appeal Case Number G062468. A copy of the court of appeal docket is attached as Exhibit 1.

City Defendants provide evidence that in November 2022, the Orange County Superior Court added Plaintiff to the State of California Vexatious Litigant List. (City Defendants’ RJN Ex. A.) City Defendants assert that in April 2023, Plaintiff tried to file a Complaint against the California Department of Motor Vehicles and City Defendants in Orange County Superior Court but the lawsuit was rejected due to Plaintiff’s vexatious litigant status and the fact that Plaintiff’s proposed pleading failed to meet the requirements of CCP § 391.7(b). (City Defendants’ RJN Ex. B, C.) City Defendants contend that since his lawsuit was rejected by the Orange County Superior Court and, given that Plaintiff needed Court permission to file a new lawsuit, Plaintiff instead added City Defendants to this action in violation of CCP §§ 391 to 391.8.

Consequently, City Defendants ask that this action be dismissed, or alternatively, that the Court order Plaintiff to furnish security.

The court accepts that Plaintiff is a vexatious litigant within the meaning of CCP § 391(a)(4), which provides:

Vexatious litigant” means a person who does any of the following: . . . 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.

“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.” (CCP § 391.1; see also Singh v. Lipworth (2005) 132 Cal.App.4th 40, 44 [“Under section 391.3, if the court determines that the plaintiff is a vexatious litigant and has no reasonable probability of prevailing, it shall require the plaintiff to post security”].)

Since this action was filed before the Orange County Superior Court found Plaintiff to be a vexatious litigant, Plaintiff was not yet subject to any prefiling requirements. (CCP § 391.7[1]) Consequently, City Defendant requests an immediate stay of this action or, in the alternative, an Order requiring Plaintiff to furnish security. The proposed amount for security is not stated by City Defendants.

In opposition, Plaintiff contends that “he is so indigent and has no employment income” due to his disabilities and that he cannot provide any form of security. (Opp. at pp. 5:27-6:1.) City Defendants are correct in pointing out that if Plaintiff is unable to furnish a security, the litigation must be dismissed as to the defendant for whose benefit the security was ordered furnished. (CCP § 391.4.) Plaintiff cites no legal authority that excuses Plaintiff from furnishing a security due to his alleged indignant status. (See McColm v. Westwood Park Ass'n (1998) 62 Cal.App.4th 1211, 1219 [$1,000 amount was not an undue burden for indigent plaintiff] disproved on other grounds by John v. Superior Court (2016) 63 Cal.4th 91; Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 786 [rejecting argument that an order to furnish security unconstitutionally discriminates against vexatious litigants of “modest means” where plaintiff was employed as a paralegal].) The fact that Plaintiff may be unable to furnish a security does not dispense with the requirement to furnish a security.

Second, City Defendants show that Plaintiff has no reasonable probability of prevailing in the litigation. The court notes that the demurrer of the California Department of Motor Vehicles and Steven Gordon to the SAC was sustained without leave to amend. The court found Plaintiff failed to state a claim against the Defendants and the SAC was uncertain, despite Plaintiff having been given the opportunity to amend and correct the pleadings. (See 9/15/2023 Ruling.) The court summarized the main allegations in the SAC as follows:

The SAC asserts in general that Defendants “utilized their local and headquarter offices and badges to violate Plaintiff’s Civil Rights, size his property, automobile by colluding with various police departments under color of law.” (SAC at 2.) “[T]hese Defendants have colluded with numerous police/law enforcement agencies to unconstitutional/unlawfully/fraudulently have sized Plaintiff's property/automobile repeatedly and impose bogus citations and fee/fines.” (SAC at 8.) Defendants funneled money to these various agencies from money paid by Plaintiff for specific registration fees” and fraudulently imposed over charges for annual registration renewal at various local (DMV)-California Department of Motor Vehicle Offices through rogue employees. (SAC at 8.) “Once the overcharges were collected from Plaintiff in cash the fund were applied to his record-registration fees” but were instead redirected “to a hidden DMV fund so as to allow late charges/penalties to continue compounding as if no monies were ever paid further fueling” the demand for payment of overcharges/fines. (SAC at 8.) Defendants “refuse to issue receipts when payments are made even if paid in cash, all which is a violation of state and federal laws[.]” (SAC at 9.) Defendant DMV also did not update their record to reflect payment and new expiration date of “9/8/2020” and so caused Plaintiff to be given a citation by the New Port Beach Department on 01/11/2020 and 01/14/2020 (SAC at 11.)

Plaintiff failed to explain what mandatory statutory obligation Defendants violated in charging Plaintiff overcharge fees/fines related to his vehicle registration. (See Inland Empire Health Plan v. Superior Court (2003) 108 Cal.App.4th 588, 593 [An entity is not immune from liability “when it is under a statutory obligation to grant or withhold a permit or approval or when the decision is a nondiscretionary, ministerial act.”.].) Plaintiff has failed to state a basis for liability against the public entities. Here, the City Defendants point out the first cause of action for Deprivation of Civil Rights,42 U.S.C. §§ 1983 & 1985, fails because Plaintiff failed to identify discriminatory conduct to sustain the claims. As to the second cause of action for Violation of the Americans with Disability Act (“ADA”), Plaintiff fails to allege how Defendants violated the ADA when they stopped Plaintiff after observing he was driving with expired registration tags and impounded his vehicle upon discovering he was driving with a suspended license and with no registration. The third cause of action, titled California Tort Claims Act, is not a recognized cause of action. The fourth cause of action for Violation of the Unruh Act applies to private business establishments, not public entities like City Defendants. (Civ. Code § 51(b).) Plaintiff also fails to allege he had a protected disability under the ADA and the Unruh Act and failed to state facts that show discrimination. Lastly, the court notes that fifth through eighth causes of action fail against the public entity Defendants because Plaintiff fails to state a statutory basis for liability.

The court finds that the proper remedy to protect Defendants from Plaintiff’s frivolous claims would be to dismiss the action.

California courts have inherent power to ‘... control [their] proceedings. [Citation.] From their creation by article VI, section 1 of the California Constitution, California courts received broad inherent power not confined by or dependent on statute. [Citations.] This inherent power includes ‘fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation. [Citations.] [B]ecause courts should hear only actual disputes, and should prevent harassment of defendants, California courts possess the inherent authority to dismiss cases that are fraudulent or ‘vexatious. [Citations.] This inherent power of a trial court is to be exercised to achieve justice and prevent misuse of [its] proces[s]....’ [Citations.]

The court finds that Plaintiff added the City Defendants to this action to circumvent the Orange County Superior Court’s denial of his prefiling request. (City Defendants’ RJN Ex. C.) The court also finds that Plaintiff’s SAC is frivolous as to all other named Defendants because the SAC fails to state a cause of action against each Defendant, the SAC is uncertain, and Plaintiff failed to show the possibility of successfully amending the complaint despite previously being given the opportunity to do so.

[W] e conclude that the trial court here ‘retain[ed] flexibility to exercise historic inherent authority ... [to] fashion[ ] [a] remed[y] as necessary to protect [defendants’] rights’ [citation] to be free from the monetary expense and other costs of responding to appellant's frivolous claims that cannot avoid being categorized as ‘fantastic,’ ‘delusional,’ or ‘fanciful.’

(Huang, supra, 23 Cal.App.5th at p. 182.) Plaintiff’s 51-page opposition fails to present any evidence or legal authority to show that Plaintiff’s action has merit and is not frivolous.

Although the court is inclined to dismiss the action due to frivolousness, since an appeal has been filed and is pending, the court instead grants the City Defendants’ Motion to Stay the Action.

City Defendants’ Motion to Stay the Action is granted. The court sets an OSC re: Status of Appeal for January 31, 2024, at 8:30 a.m. City Defendants are ordered to give notice.

[1] CCP § 391.7 states, in relevant part, “[i]n 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.