Judge James C. Chalfant, Case 19VECP00553 2023-01-12 Tentative Ruling

Respondent County of Los Angeles (“County”) moves for Petitioner Robert Garber (“Garber”) to be declared a vexatious litigant and to require him to furnish a $70,000 security for expenses and costs.

The court has read and considered the moving papers, first and second opposition, and reply and amended reply,[1] and renders the following tentative decision.

Petitioner Garber filed this proceeding in pro per on December 12, 2019 against Respondents County and Department of Social Services (“DSS”). The operative pleading is the First Amended Petition (“FAP”), filed on November 3, 2022 and alleging claims for (1) fraud and (2) reinstatement of CalFresh benefits. Because the FAP appears to be only the amended pages, the Petition remains operative. The Petition and FAP shall be referred to collectively as the “FAP”, and it alleges in pertinent part as follows.

On November 14, 2017, Garber first applied to the CalFresh Program. DSS granted the application conditional on him providing proof of satisfactory immigration status, which he did not have on hand. In the months that followed, DSS and Garber exchanged communications on Garber’s failure to identify the precise amount of an increase in income: $180 or $200.

On July 19, 2018, in retaliation, the County welfare agency in San Fernando Valley stopped Garber’s CalFresh benefits, effective July 13, 2018. It then rescinded the discontinuation on July 27, 2018 to “as otherwise eligible.” When it did so, the agency authorized monthly payments of $192 for August and September 2018.

Multiple rounds of termination and appeal followed until a hearing was scheduled for November 13, 2018. At the hearing, Garber explained that the key issue was Form MC13 titled “Statement of Citizenship, Alienage and Immigration Status” (“MC13 Form”). The County representative at the hearing did not have the form, so Garber produced it. He asserted that the County and the San Fernando welfare agency had acted in bad faith.

Administrative Law Judge (“ALJ”) Shin held that the County action to discontinue CalFresh aid pending, effective September 30, 2018, could not be sustained because Garber had filed a timely request for hearing. The County was ordered to issue aid pending of $192 effective October 1, 2018. The hearing was continued to December 13, 2018.

At the hearing on December 13, 2018, the County again failed to produce any documents from Garber’s file. In his December 21, 2018 proposed decision, ALJ Shin repeatedly stated that Garber never submitted the necessary documents for his claim. ALJ Shin also said that no finding had been made as to immigration status and that none was necessary.

On January 4, 2019, the County/DSS mailed Garber notice of over-issuance of CalFresh benefits for the period of October to December 2018. Garber submitted a Motion for Reconsideration and several letters to ALJ Shin.

On February 20, 2019, the County/DSS mailed notice that its records showed over 135 days of inactivity on Garber’s CalFresh account. The County would deactivate the account on April 5, 2019 if he did not use his CalFresh card by then. The County demanded that Garber repay $960 for benefits overissued.

On March 12, 2019, Garber received the County’s Statement of Position form for a hearing that never occurred, alleging that on January 4, 2019 the County had notified Garber that it overpaid him $576 in CalFresh payments. In late April 2019, Garber received another County Statement of Position for a hearing that never took place. The County continued to state that Garber failed to provide documents that verify his citizenship or immigration status. Garber kept pressing for a rehearing.

On June 26, 2019, the County Treasury sent Garber a demand for $1,536, or $960 more than the $576 the County last alleged it had overpaid.

On August 12, 2019, the Chief Administrative Law Judge (“Chief ALJ”) informed Garber via letter that the County stated that there had been no lapse in CalFresh coverage. The County changed Garber’s eligibility code in April 2019 from full-scope MediCal to restricted MediCal because the County did not receive a completed MC13 Form.

On September 9, 2019, the County reverted to its original claim of $576 as to allegations of overpayment of CalFresh benefits.

On October 22, 2019, Garber attended an appeal hearing regarding DSS’ termination of Garber’s IHSS benefits for failure to provide his current residence address. The County used this hearing to allege an over-issuance of CalFresh payments which did not occur. At the hearing, the County specialist finally provided the MC13 Form.

On November 8, 2019, the County alleged that it had overissued CalFresh benefits to Garber for the period between May and September 2019.

Garber seeks (1) compensatory damages of $150,000, (2) enhanced and punitive damages, (3) CalFresh monthly payments from January 2020 to October 2022, and (4) attorney’s fees.

On December 13, 2019, Garber served the County with the Petition and Summons by hand-delivery. On January 3, 2020, Garber served DSS with the Petition and Summons.

On March 3 and 10, 2020, Garber requested entry of default against DSS. Department T (Hon. Shelby Watkins) denied the request both times as incomplete and without a signature. Garber requested default against DSS again on March 13, 2020. The court granted the request.

On July 28, 2020, Department T overruled the County’s demurrer to the Petition.

The County moved to be recharacterized as a Real Party-in-Interest in this action. Department T denied the motion on November 3, 2020.

On October 29, 2020, Department T referred the case to Department 1 to determine if the case should be transferred to a department in Stanley Mosk Courthouse. Department 1 reassigned the case for all purposes to Department 85.

On December 28, 2020, Garber requested a court ruling that DSS had been in default since February 2020. On January 11, 2021, DSS requested that the court vacate entry of default.

On April 13, 2021, the court scheduled an Order to Show Cause (“OSC”) hearing re: dismissal for failure to appear on that day and failure to prosecute.

On September 23, 2021, Garber filed a request for a Trial Setting Conference (“TSC”) in writing. On September 24, 2021, the court made accommodations by promising to provide a Communication Access Realtime Translation Reporter at the next TSC.

On January 6, 2022, Garber requested a court order to compel the County to produce the transcripts of administrative hearings from November and December 2018 as relevant and material evidence. On January 10, 2022, the court informed Garber that he had the responsibility to obtain those transcripts from DSS.

At the April 21, 2022 OSC hearing, the court ordered the case stayed for six months to allow Garber to appear in person when he is released from jail. The court lifted the stay on November 3, 2022, upon learning that Garber is no longer incarcerated.

Garber served the County and DSS with a request to disclose the transcripts of the hearings on December 13, 2018.

On November 21, 2022, the court declined to relate Garber v. Rex Danyluk et al., 22STCV29054 as that new case is an action for damages.

On December 13, 2022, the court denied Garber’s motion to augment the record with a transcript of a hearing that purportedly occurred on December 13, 2018.

(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. CCP[2] §391(b).

For purposes of this statute, “litigation” means any civil action or proceeding, commenced, maintained or pending in any state or federal court. §391(a).

In any litigation in any court of this state, and at any time until final judgment is entered, a defendant may move the court for an order that the plaintiff is a vexatious litigant who should be required to furnish security. §391.1. The motion must be supported by a showing that the plaintiff is a vexatious litigant and there is no reasonable probability that he will prevail in the litigation against the moving defendant. Id. Security is defined as “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.” §391(c).

The vexatious litigant statutes are intended “to require a person found to be a vexatious litigant to put up security for the reasonable expenses of a defendant who becomes the target of one of these obsessive and persistent litigants whose conduct can cause serious financial results to the unfortunate object of his attack.” First Western Development Corp. v. Superior Court, (1989) 212 Cal.App.3d 860, 867. “The constant suer becomes a serious problem to others than the defendant he dogs. By clogging court calendars, he causes real detriment to those who have legitimate controversies to be determined, and to the taxpayers who must provide the courts.” Taliaferro v. Hoogs, (1965) 237 Cal.App.2d 73, 74.

The Ninth Circuit docket for Garber v. County 2017 lists 14 federal actions initiated or maintained by Garber between 2007 and 2013. Brenner RJN Decl., ¶8A, Ex. 10. Of these, four cases were “Affirmed – Memorandum,” seven cases were dismissed for jurisdictional defects, and three cases were dismissed or denied. Ex. 10.

On August 5, 2014, the City of Los Angeles (“City”) filed a petition to issue a three-year

Workplace Violence Restraining Order against Garber City v. Garber 2015. Brenner RJN Decl., ¶12, Ex. 16. The court granted the restraining order on August 26, 2014. Ex. 16. Garber appealed in propia persona. Brenner RJN Decl., ¶12, Ex. 16. The appellate court affirmed the superior court’s decision on July 22, 2015. Ex. 16. Garber sought review before the California Supreme Court. Brenner RJN Decl., ¶14, Ex. 18. The court denied review on October 14, 2015. Brenner RJN Decl., ¶14, Ex. 18.

On November 7, 2015, Garber filed a petition of writ of certiorari and seeking leave to act in propia persona to the United States Supreme Court in Garber v. City, Case No.: 15-7934. Brenner RJN Decl., ¶11, Ex. 15. On March 21, 2016, the petition was denied. Ex. 15.

On March 7, 2017, Garber appealed a federal court decision to the Ninth Circuit in propia persona in Garber v. U.S. Brenner RJN Decl., ¶10, Ex. 14. The Ninth Circuit entered judgment on January 1, 2018. Ex. 14. Garber filed a petition for rehearing en banc, which the court denied on May 22, 2018. Ex. 14.

On June 9, 2017, Garber filed an action in federal district court in Garber v. County and sought leave to proceed in propia persona. Brenner RJN Decl., ¶9A, Ex. 12. On June 19, 2017, the federal court denied Garber’s request to appear in propia persona because the complaint was frivolous, unintelligible, and without any viable civil rights claim. Brenner RJN Decl., ¶9B, Ex. 13. Garber filed an appeal. Brenner RJN Decl., ¶8A, Ex. 10. On April 16, 2018, the appellate court agreed that the case was frivolous and dismissed it, effective May 8, 2018. Brenner RJN Decl., ¶8A, B, Exs. 10, 11.

On May 21, 2018, Garber filed a petition of writ of certiorari in propia persona to the California Supreme Court against an attorney in Accusation of Garber. Brenner RJN Decl., ¶¶ 7A, 7C, Exs. 7, 9. On July 11, 2018, the petition was denied. Brenner RJN Decl., ¶7B, Ex. 8.

On September 28, 2018, Garber filed a federal action in propia persona in Garber v. U.S. 2018. Brenner RJN Decl., ¶6A, Ex. 4. On December 10, 2018, the court granted a motion to dismiss the complaint. Brenner RJN Decl., ¶6B, Ex. 5. The case was stayed between December 28, 2018 and July 1, 2019. Brenner RJN Decl., ¶6C, Ex. 6. On September 23, 2019, the court dismissed the action. Brenner RJN Decl., ¶6C, Ex. 6.

On October 31, 2019, Garber filed a complaint against the Los Angeles Department of Transportation in Garber v. LADOT. Brenner RJN Decl., ¶5A, Ex. 1. Because Garber did not appear for a case management conference, Department W set an order to show cause for failure to prosecute on November 5, 2020. Brenner RJN Decl., ¶5B, Ex. 2. When Garber failed to appear, Department W dismissed the case. Brenner RJN Decl., ¶5C, Ex. 3.

Garber’s address for several of these cases is 7449 Reseda Boulevard, Apartment 246, Reseda CA 91335. Brewer RJN Decl., ¶¶ 6A, 9A, 10, 12, Exs. 4, 12, 14, 17.

Respondents’ counsel charges $250 per hour and estimates that its attorney’s fees will be $25,000. Brewer Decl., ¶5. Counsel also estimates at least $5,000 in attorney time and court reporter/videographer expenses for Garber’s deposition. Brewer Decl., ¶5. If the case proceeds to trial, the recoverable fees and costs will total $75,000. Brewer Decl., ¶6. The estimated cost of experts alone will be $40,000. Brewer Decl., ¶6.

The County has treated the same cases as individual cases to bolster its motion. Garber First Opp. Decl., ¶4. Respondents are the vexatious litigants for failure to provide transcripts of the December 13, 2018 hearing. Garber First Opp. Decl., ¶5.

Garber could not pursue the claim in Garber v. LADOT because he was incarcerated on March 28, 2020. Garber First Opp. Decl., ¶7.

Garber v. U.S. (2018) was a small claims case against a dental doctor for malpractice. Garber First Opp. Decl., ¶7. After the community medical center where the dentist worked requested that the Department of Health (“DOH”) represent him, it removed the action from small claims court to federal court. Garber First Opp. Decl., ¶7. Although Garber pleaded “by the book” summary judgment, the court instead deferred to the defendant’s motion for summary judgment. Garber First Opp. Decl., ¶7. Garber v. U.S. (2017) is a derivative of Garber v. U.S. (2018), Garber First Opp. Decl., ¶7.

Accusation of Garber was a claim against an attorney for making Garber’s identifiers public without his consent. Garber First Opp. Decl., ¶7. The U.S. Attorney’s Office and the State Bar would not act when Garber complained to them. Garber First Opp. Decl., ¶7. Garber then filed the application with the California Supreme Court, which denied it. Garber First Opp. Decl., ¶7.

The Garber v. County 2017 stems from a deputy city attorney charging Garber with criminal threats based on Garber’s statements in criminal court. Garber First Opp. Decl., ¶7. The superior court did not punish Garber. Garber First Opp. Decl., ¶7. Garber v. City stems from these cases. Garber First Opp. Decl., ¶7. City v. Garber 2015 stems from Garber v. City. Garber First Opp. Decl., ¶7.

The description Garber gave for Garber v. U.S. (2018) actually is for Garber v. United States of America (“Garber v. U.S. (2014)”) Central District Case No. 2:14-cv-04547. Garber First Reply Decl., ¶3, Ex. 19. Garber filed the case on June 12, 2014, and the court granted a motion to dismiss on September 23, 2014. Garber First Reply Decl., ¶3, Ex. 19.

A search for Garber in the federal court docket yielded 197 results. Garber First Reply Decl., ¶4, Ex. 20. This includes Garber v. Attorney General of the State of California (“Garber v. Attorney General”) (2004), Central District Case No. 2:2004-cv-08478. Brewer Second Reply Decl., ¶4, Ex. 21.

Garber’s address for this case is 7449 Reseda Boulevard, Apartment 246, Reseda CA 91335. Brewer Second Reply Decl., ¶4, Ex. 21.

Respondent County moves for Petitioner Garber to be declared a vexatious litigant and require him to furnish a $70,000 security for expenses and costs.

Section 391(b) provides three ways a litigant may be defined as vexatious. First, a vexatious litigant is one who 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. §391(b)(1). Second, the litigant acting in propria persona repeatedly relitigates the same claims, controversies, issues of fact or law after the litigation has been finally determined against the person. §391(b)(2). Third, the litigant, 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. §391(b)(3).

For purposes of this statute, “litigation” means any civil action or proceeding, commenced, maintained, or pending in any state or federal court. §391(a).

The court need only consider the first basis for vexatious litigant status. County provides evidence that Garber has filed seven actions in propria persona where there was a final ruling against him: City v. Garber 2015, Garber v. City, Garber v. U.S. 2017, Garber v. County 2017, Accusation of Garber, Garber v. U.S. 2018, and Garber v. LADOT. For purposes of the vexatious litigant statute, the plaintiff need only have filed and dismissed litigation for it to be considered as finally determined adversely, even if it was voluntarily dismissed. Tokerud v. Capitol Bank Sacramento, (1995) 388 Cal.App.4^th 775, 779-80.

Garber asserts that some of these actions are derivative of others. Garber First Opp. Decl., ¶2. This is true for cases in which there is an appeal from a trial court decision or review sought from an appellate decision. For example, in Garber v. County there was a district court and Ninth Circuit decision. Brenner RJN Decl., ¶¶ 8A-9B, Exs. 10-13. Similarly, in City v. Garber there was an appellate decision from which Garber sought California Supreme Court review. Brenner RJN Decl., ¶¶ 12-14, Exs. 16-18.

Under section 391(b)(1), a case must have been finally determined adversely to the person. In California state courts, a case is not final until a direct appeal or petition for review has been considered. Out of an abundance of caution, the court will deem the same to be true for federal cases. Therefore, state and federal appeals from trial courts and petitions for review from appellate courts do not count separately from the trial court case.

Garber asserts that many of the cases are follow-ons, and one case was a small claims case removed to federal court. First Opp. at 3-5. The definition of “litigation” for purposes of a vexatious litigant is any action or proceeding “in any state or federal court.” §391(a). An action or proceeding based on the same or similar facts but filed as a different case is a different instance of litigation. Section 391 does not provide for an exception to the definition of vexatious litigant that is based on the reasons why the litigant’s case was dismissed; it is sufficient that the pro per litigant has lost five cases in the last seven years. A small claims case removed to federal court and then dismissed fits this definition.

Garber has filed seven cases within the last seven years that have been decided adversely to him and he is a vexatious litigant under section 391(b). Based on this finding, the court sua sponte issues a prefiling order which precludes Garber 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.[5]

County alleges three reasons why Garber does not have a probability of success on his FAP for mandamus concerning the denial of his welfare benefits. First, he cannot sue a public entity for a common law tort. All government liability is by statute. Mot. at 9; Susman v. City of Los Angeles, (“Susman”) (1969) 269 Cal.App.2d 803, 808. The FAP seeks compensatory damages, punitive damages, CalFresh monthly payments from January 2020 to October 2022, and attorney’s fees. Whatever Garber’s right to collect damages, the recovery of CalFresh monthly payments is an issue of administrative mandamus, not common law damages.

Second, County asserts that Garber has not alleged compliance with the Claims Act. Mot. at 10. Before a suit for money or damages may be brought against a public entity, the plaintiff must timely present a written claim to the public entity. Government (“Govt.”) Code §945.4. Garber need not make a government claim to recover lost CalFresh benefits. A claim for the public agency to disburse funds wrongly detained is not an action for money or damages and not subject to claim filing requirements. County of Sacramento v. Lackner, (1979) 97 Cal.App.3d 576, 587-88.

Third, County asserts that Garber cannot claim non-economic damages in a welfare benefits case. Mot. at 10; Cummings v. Premier Rehab Keller, P.L.L.C., (2022) 596 U.S. __. Garber cannot obtain compensatory non-economic and punitive damages in this mandamus case but he can recover CalFresh monthly payments from January 2020 to October 2022.

County fails to show that there is not a reasonable probability that Garber will prevail in this litigation.

The portion of County’s motion to compel Garber to post a $70,000 bond is denied. However, the court sua sponte issues a prefiling order which precludes Garber 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.

[1] The court did not authorize two oppositions and replies. Nonetheless, they have been considered.

[2] All further statutory references are to the CCP unless otherwise stated.

[3] The County requests judicial notice of (1) the minute order filed on August 6, 2020 in Robert Garber v. Los Angeles Department of Transportation (“Garber v. LADOT”), LASC Case No. 19VECV01557, (Brenner RJN Decl., ¶5A, Ex. 1); (2) the minute order filed on October 8, 2020, in Garber v. LADOT, (Brenner RJN Decl., ¶5B, Ex. 2); (3) the minute order filed on November 5, 2020 in Garber v. LADOT, (Brenner RJN Decl., ¶5C, Ex. 3); (4) the docket for Robert Garber v. United States of America, et al. (“Garber v. U.S. 2018”) (2018), USDC Case No. 2:18-cv-08398-CAS-JPR (Brenner RJN Decl., ¶6A, Ex. 4); (5) the court’s minutes re: defendants’ motion to dismiss the second amended complaint in Garber v. U.S. 2018, (Brenner RJN Decl., ¶6B, Ex. 5); (6) the court’s minutes re: Defendant’s Response to Order to Show Cause, filed on July 31, 2019, in Garber v. U.S. 2018, (Brenner RJN Decl., ¶6C, Ex. 6); (7) case information for the California Supreme Court Case Accusation of Garber, Case No. S248808 (Brenner RJN Decl., ¶7A, Ex. 7); (8) case information concerning the disposition of Accusation of Garber, (Brenner RJN Decl., ¶7B, Ex. 8); (9) case information for the parties and attorneys in Accusation of Garber, (Brenner RJN Decl., ¶7C, Ex. 9); (10) the Ninth Circuit docket for Robert Garber v. County, et al. (“Garber v. County 2017”), Case No. 17-56207 (Brenner RJN Decl., ¶8A, Ex. 10); (11) a mandate issued by the Ninth Circuit in Garber v. County 2017, (Brenner RJN Decl., ¶8B, Ex. 11); (12) the district court docket for Garber v. County 2017, USDC Case No. 2:17-cv-04306-SVW-JEM (Brenner RJN Decl., ¶9A, Ex. 12); (13) an order re request to proceed in forma pauperis in Garber v. County 2017, (Brenner RJN Decl., ¶9B, Ex. 13); (14) the Ninth Circuit docket for Garber v. U.S., (“Garber v. U.S. 2017”), Case No 17-55296 (Brenner RJN Decl., ¶10, Ex. 14); (15) the United States Supreme Court docket for Garber v. City of Los Angeles (“City v. Garber 2015”), Case No.: 15-7934 (Brenner RJN Decl., ¶11, Ex. 15); (16) the unpublished appellate opinion in City v. Garber 2015, 2nd Dist. Case No. B258980 (Brenner RJN Decl., ¶12, Ex. 16); (17) case information for California Supreme Court parties and attorneys in Los Angeles, City of v. Garber (“City v. Garber 2015, Supreme Court Case No. S228962 Brenner RJN Decl., ¶; and (18) the case summary for the California Supreme Court in City v. Garber 2015, (Brenner RJN Decl., ¶14, Ex. 18). All requests are granted. Evid. Code §452(d).

The County’s amended reply to the second opposition requests judicial notice of the docket in Garber v. Attorney General of the State of California (“Garber v. Attorney General”) (2004), Central District Case No. 2:2004-cv-08478 (Brewer Second Reply Decl., ¶4, Ex. 21). The request is granted. Evid. Code §452(d).

[4] Garber’s second opposition does not provide significant evidence except for a copy of a declaration attached to the County’s first reply.

[5] On January 6, 2023, Dept. 32 issued a similar order in Garber v. Danyluk, LASC Case No.22STCV29054.