Judge: Gary Y. Tanaka, Case: 19STCV25818, Date: 2022-08-25 Tentative Ruling
Case Number: 19STCV25818 Hearing Date: August 25, 2022 Dept: B
LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Thursday, August 25, 2022
Department B Calendar No. 6
PROCEEDINGS
David Alomatsi v. Laibco, LLC, et al.
19STCV25818
Daniel Marciano, M.D.’s Motion for Orders to Furnish Security and to Stay Proceedings Pursuant to CCP § 391
TENTATIVE RULING
Daniel Marciano, M.D.’s Motion for Orders to Furnish Security and to Stay Proceedings Pursuant to CCP § 391 is granted.
Background
Plaintiff filed his Complaint on July 24, 2019. Plaintiff’s operative First Amended Complaint was filed on August 17, 2020. Plaintiff alleges the following facts. Plaintiff alleges that he suffered numerous physical and emotional injuries related to his care and treatment at Las Flores Convalescent Hospital from August 2017 through March 2019. Plaintiff alleges the following causes of action: 1. Assault; 2. Negligence; 3. Negligent Misrepresentation; 4. Fraud; 5. Negligent Hiring, Training, and Supervision; 6. NIED; 7. IIED.
Request for Judicial Notice
Defendant’s request for judicial notice is granted pursuant to Evidence Code § 452(d).
Motion for Order to Furnish Security and Stay
Code Civ. Proc., § 391 states, in relevant part:
“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.
(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.
(c) “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.”
Code Civ. Proc., § 391.1 states:
“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.”
Code Civ. Proc., § 391.3 states:
“(a) Except as provided in subdivision (b), 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.
(b) If, after hearing evidence on the motion, the court determines that the litigation has no merit and has been filed for the purposes of harassment or delay, the court shall order the litigation dismissed. This subdivision shall only apply to litigation filed in a court of this state by a vexatious litigant subject to a prefiling order pursuant to Section 391.7 who was represented by counsel at the time the litigation was filed and who became in propria persona after the withdrawal of his or her attorney.
(c) A defendant may make a motion for relief in the alternative under either subdivision (a) or (b) and shall combine all grounds for relief in one motion.”
Code Civ. Proc., § 391.6 states:
“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.”
Defendant moves for an order to require Plaintiff to furnish security for expenses and costs of this litigation and dismissal of this lawsuit if security is not provided and to stay the proceedings. Defendant has established that on February 9, 2022, Plaintiff was declared a vexatious litigant because he filed ten lawsuits in the prior seven years in propria persona, all of which were finally resolved against him. (RJN, Exs. A, B.) A prefiling order was filed and signed by a judicial officer on February 10, 2022. (Id.) Therefore, Plaintiff is a vexatious litigant as defined under CCP § 391(b)(4). Thus, an order to furnish security by Plaintiff may be appropriate under CCP § 391.1.
The evidence submitted by Defendant establishes that there is no reasonable probability that Plaintiff will prevail in this action. On November 2, 2021, Defendant Dr. Marciano’s demurrer to the second cause of action of the First Amended Complaint was sustained with 20 days leave to amend. Plaintiff has failed to file a Second Amended Complaint. In addition, while the demurrer to the seventh cause of action was overruled, Plaintiff filed no written opposition to the instant motion and presented no evidence to show that he has a reasonable probability of succeeding on the merits of any of his causes of action under any theories.
The Court determines that the amount of security proposed by Defendant in the sum of $60,000 is reasonable considering potential fees and costs that have and will be incurred in defending against Plaintiff’s claims.
The action is stayed pursuant to CCP § 391.6. Plaintiff is ordered to furnish a security in the sum of $60,000.00 within 20 days of this date.
Defendant is ordered to give notice of this ruling.