Judge: James C. Chalfant, Case: 24STCP02193, Date: 2025-01-30 Tentative Ruling

Case Number: 24STCP02193    Hearing Date: January 30, 2025    Dept: 85

Respondent County of Los Angeles Department of Public Social Services (“DPSS”) moves for a declaration that each of Petitioners Irwin Jacobowitz (“Irwin”), Pearl H. Jacobowitz (“Pearl”), and Dakota Zeigerman-Jacobowitz (“Dakota”) are a vexatious litigant.

The court has read and considered the moving papers (no opposition was filed) and renders the following tentative decision.

A. Statement of the Case

1. The Petition

On July 10, 2024, Petitioners Irwin, Pearl, and Dakota filed the Petition for Writ of Administrative Mandamus against Respondents DPSS and California Department of Social Services (“DSS”).  The operative pleading is the First Amended Petition (“FAP”), filed on July 30, 2024.  The FAP alleges in pertinent part as follows.

On June 2, 2022, Irwin applied for in-home Supportive Services (“IHSS”) through the State of California.  FAP, ¶6.

On August 11, 2022, a social worker with DPSS forwarded a Notice of Denial for Irwin’s IHSS application.  FAP, ¶7.  The letter stated that Irwin’s application was denied because (1) the IHSS program was informed that Irwin did not provide Medi-Cal with the required information to complete a Medi-Cal eligibility determination, which is a requirement for IHSS eligibility, and (2) Irwin did not provide the County with a health care certification as is required to authorize services. FAP, ¶8.  The letter also stated “You have only 90 days to ask for a hearing. The 90 days started the day after the county gave or mailed you this notice.”  FAP, ¶9.

On September 14, 2022, Irwin received a Notice of Action from the County stating, “as of 06/01/2022, your application for Medi-Cal benefits has been approved.”  FAP, ¶10.

On May 6, 2023, Irwin, through Pearl, his authorized representative, filed a fair hearing request with DSS’ State Hearings Division, which forwarded an acknowledgement letter a few days later.  FAP, ¶¶ 11-12.  A County appeals hearings specialist forwarded a request to the State Hearings Division requesting bifurcation of the hearing to determine if jurisdiction exists to hear the substantive issues raised in Irwin’s hearing request because the request for a state hearing exceeded the 90-day limit.  FAP, ¶¶ 13-14.  On June 1, 2023, the County’s request for bifurcation was granted.  FAP, ¶20.

The County requested that Irwin’s issue be dismissed for lack of jurisdiction due to the untimeliness of his hearing request.  FAP, ¶23.  On July 11, 2023, Administrative Law Judge Susan Lake (the “ALJ”) dismissed the claim due to lack of the State Hearings Division’s jurisdiction.  FAP, ¶24.

On July 21, 2023, Irwin filed for a rehearing.  FAP, ¶25.  On October 6, 2023, Irwin’s rehearing request was denied.  FAP, ¶27.  

Petitioners seek a peremptory writ of mandate compelling DSS to set aside the order and reinstate Irwin’s claim.

2. Course of Proceedings

On July 10, 2024, Petitioners filed the Petition.

On July 30, 2024, Petitioners filed the operative FAP.

On October 22, 2024, Respondent DPSS filed and served the instant motion to declare Irwin a vexatious litigant.

On October 22, 2024, Respondent DPSS filed and served the instant motion to declare Pearl a vexatious litigant.

On October 23, 2024, Respondent DPSS filed and served the instant motion to declare Dakota a vexatious litigant.

No opposition was filed to either motion.

B. Governing Law

            A 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.  CCP[1] §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.

C. Statement of Facts[2]

            The court has judicially noticed the following court records:

1.      Jacobowitz v. Darling Realty et. al., Case No. 1: 1:19-cv-12599-FDS; United States District Court, District of Massachusetts (Boston) (RJN Exs. 1-6);

2.      Jacobowitz v. Darling Realty et. al., Case No. 21-1040, US Court of Appeals for the First Circuit (Appeal from 1:19-cv-12599-FDS) (RJN Exs. 7-9);

3.      Hawthorne v. Jacobowitz, et. al., Case No. B319962 California Court of Appeal Second District Appeal from 22CHUD00156 Defendants appealed (RJN Exs. 10-13);

4.      Irwin Jacobowitz, et al v. De Jarnette, et al., Case No. 5:22-cv00984-JGB-SP; United States District Court for Central District of California (RJN Exs. 14-18);

5.      Studley v Jacobowitz, Case No. 19-1578 First Circuit Court of Appeals, Appeal by Irwin and Pearl Jacobowitz, Defendants and Appellants (RJN Exs. 19-28);

6.      Studley v Jacobowitz, Case No. 19-1579 First Circuit Court of Appeals Appeal by Irwin and Pearl Jacobowitz, Defendants and Appellants (RJN Ex.s 29-34);

7.      Jacobowitz v. Barrington Public Schools, Case No. 7 18-1241; First Circuit Court of Appeals (Appeal by Irwin and Pearl Jacobowitz from United States District Court of Rhode Island, Case No. 1:17-cv-00471-JJM-LDA) (RJN Exs. 35-39);

8.      Jacobowitz v. Barrington Public Schools, Case No. 8 18-1240 First Circuit Court of Appeals (Appeal by Jacobowitz from 1:17-cv-00471-JJM-LDA) (RJN Exs. 40-42);

9.      Jacobowitz, et al v. YMCA of Greater Providence Bay, et al. Case No. 9 17-2175 First Circuit Court of Appeals (Irwin and Pearl Jacobowitz Appeal from United States District Court of Rhode Island, Case No. 1:15-cv-00345-JJM) (RJN Exs. 43-45);

10.  Jacobowitz, et al v. Bristol, RI, et al.; Case No. 10 17-2174 First Circuit Court of Appeals (Jacobowitz Appeal from 1:15-cv-00335-JJM-PAS) (RJN Exs. 46-47); and

11.  Jacobowitz v. The State of Providence; Case No. 11 1:18-cv00311-WES-LDA, United States District Court of Rhode Island (Providence) (RJN Ex. 48).

D. Analysis

Respondent County [3] separately moves for an order against each of Petitioners Irwin, Pearl, and Dakota, declaring that Petitioner to be a vexatious litigant and requiring him or her to furnish a $70,000 security for expenses and costs.  No opposition has been filed.

1. Vexatious Litigant

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).

Although the County relies on all three grounds, the court need only consider the first basis for vexatious litigant status.  The County argues that Petitioners’ family has filed over 50 federal cases in propria persona and numerous such cases are ending in Los Angeles Superior court and federal court in the Central District of California.  See, e.g., Irwin Mot. at 7. 

The County provides evidence that each Petitioner has filed at least five actions in propria persona in the last seven years where there was a final ruling against him or her.  Of the judicially noticed cases, all 11 were filed and lost by Pearl and Irwin.  Their son Dakota filed and lost five of those cases (RJN Exs. 1-18, 7-9, 10-13, 14-18, and 48).  Each Petitioner is a vexatious litigant.

2. Posting of Security

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. 

The County argues that there is no reasonable prospect that any Petitioner will prevail in this case.  The Petition alleges that Irwin applied for IHSS on June 2, 2022.  DPSS denied his application on August 11, 2022, citing his failure to provide required Medi-Cal information and a health care certification.  Petitioner filed a request for a DSS fair hearing on May 5, 2023.  The ALJ dismissed the appeal on July 11, 2023, ruling that it was filed past the 90-day deadline and that there was no good cause for the delay.  

Petitioners argue that the ALJ’s dismissal should be overturned on several grounds. Petitioners contend that the DPSS August 11, 2022 notice of action was inadequate, failing to provide important required information and not complying with regulations on proper notices.  FAP, ¶28b.  Irwin was denied his hearing rights and the ALJ failed to correctly interpret “Welfare & Institutions Code” section 22-009.1.” FAP, ¶ 28(i).  (This appears to be a reference to California DSS Manual of Policies and Procedures, State Hearing and Request for Review (11/2/16), Chapter 22-000, section 22-009).  Petitioners further argue that the DPSS Notice of Action incorrectly cited to Irwin’s failure to provide Medi-Cal information.  Petitioners argue that Irwin provided Medi-Cal with the requested information and that he was covered under Medi-Cal regulations.

None of these contentions bears on the timeliness of appeal.   The Petition’s exhibits show that Irwin’s appeal to DSS was untimely, and Petitioners fail to show error by the ALJ.  

On June 1, 2022, Irwin applied for Medi-Cal benefits. On June 2, 2022, Irwin filed an application for IHSS.  Irwin (DOB 9-4-1947), is a military veteran who receives SSI/SSP. Irwin identifies daughters Dakota (DOB 12-4-1997), Montana (DOB 11-26- 2001) and Arizona (DOB 12-2-1999), and his wife Pearl (DOB 6-22-1962), as household members. The IHSS application was denied on August 11, 2022 by a Notice of Action under Case No. 2167354, for failure to provide Medi-Cal with the required information to complete a Medi-Cal eligibility determination.

On September 14, 2022, a Notice of Action was issued by DSS approving MediCal for Irwin, referencing the June 1, 2022 application.

On May 5, 2023, Pearl filed a fair hearing request for Irwin, stating that Pearl and Dakota were authorized representatives for Irwin, and that Irwin was never provided with an initial assessment or home visit, and the “social worker” never communicated with Irwin.

The bifurcated hearing was conducted on July 5, 2023. It was attended by Pearl as Irwin’s Authorized Representative.  Dakota had no involvement in the application or hearing.  On July 10, 2023, ALJ Susan Lake issued a decision dismissing the appeal for lack of jurisdiction because the appeal was filed more than 90 days after DPSS mailed the August 11, 2022 Notice of Action denying Irwin’s application for IHSS.  

There is no evidence overcoming this untimeliness and Petitioners have no reasonable probability of success.

“‘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.  §391(c). The trial court makes an “individualized determination of the appropriate amount of security.”  Wolfe v. George, (9th Cir. 2007) 486 F.3d 1120, 1126-27.  The County presents evidence that defending this case through trial would cost it more than $70,000 in attorney fees and costs.  Brenner Decl., ¶¶ 46.  This estimated amount is reasonable.

F. Conclusion

The motions are granted.  The court issues a prefiling order which precludes each Petitioner 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.  The Prefiling Order shall be on Judicial Council Form VL-100 and the Clerk is ordered to transmit the Prefiling order to the following address by mail: Vexatious Litigant Prefiling Orders Judicial Council of California, 455 Golden Gate Avenue, San Francisco, California.  Each Petitioner shall post a $70,000 bond before continuing to prosecute this case.  An order to show cause re: dismissal shall issue with respect to bond posting for February 13, 2025.