Judge James C. Chalfant, Case Number: 24STCP02906, Date: 2025-02-06 Tentative Ruling

Irwin Jacobowitz, et al. v. California Department of Social Services, et al.

24STCP02906

Tentative decision on motions to declare vexatious litigants: granted

Respondent County of Los Angeles Department of Public Social Services (“DPSS”) moves for orders declaring Petitioners Irwin Jacobowitz (“Irwin”), Pearl H. Jacobowitz (“Pearl”), and Dakota Zeigerman-Jacobowitz (“Dakota”) as vexatious litigants.

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

Petitioners commenced this action in pro per on September 10, 2024, by filing a Petition for Writ of Administrative Mandamus against Respondents California Department of Social Services (“DSS”) and DPSS. The verified Petition alleges in pertinent part as follow.

On or about August 29, 2021, Irwin applied for CalFresh benefits. Pet., ¶6. On October 31, 2021, DPSS denied Irwin’s CalFresh application. Pet., ¶9. In an order dated April 25, 2022, DPSS concluded that Petitioners were not entitled to CalFresh benefits at the time of their August 29, 2021 application. Pet., ¶10. Petitioners were found eligible for CalFresh benefits after a DPSS rehearing. Pet., ¶11.

On July 2, 2023, Petitioners were shopping at Ralphs and found that CalFresh benefits were removed from their EBT account. Pet., ¶13. Petitioners called EBT and were told that there were two transactions on July 1, 2023 in which $3,138.76 and $3,215.71 was “skimmed” from Petitioner’s EBT account at a grocery store out-of-state. Pet., ¶14. On or about July 20, 2023, DPSS placed $739 back in Petitioners’ EBT account. Pet., ¶19.

On July 21, 2023, Petitioners requested a hearing regarding DPSS’s refusal to replace the remaining skimmed EBT balance of $5,615.47. Pet., ¶20.

Administrative Law Judge Sandy Yu (the “ALJ”) issued a decision on August 31, 2023 stating that replacement of CalFresh benefits must be provided to the household in the amount of the loss, up to a maximum of one month’s allotment, unless the amount of the loss includes benefits resulting from household misfortune or disaster. Pet., ¶¶ 24, 26. The ALJ found that none of the stolen CalFresh benefits were a result of household misfortune or disaster, and thus, the amount of replacement benefits Petitioners were entitled to receive was capped at the household’s monthly allotment of $739. Pet., ¶27.

On or about September 18, 2023, Petitioners requested a re-hearing of decision. Pet., ¶28. On or about November 27, 2023, Petitioners’ request for rehearing was denied. Pet., ¶30.

Petitioners argue that they received a partial reimbursement of stolen benefits capped at their monthly allotment of $739, but they are entitled to full reimbursement as the amounts lost qualify as replaced amounts due to household misfortune or disaster. Pet., ¶57.

On October 21, 2024, DPSS filed a declaration of demurring party in support of automatic extension.

On November 21, 2024, DPSS filed the instant motion to declare Petitioner Dakota a vexatious litigant.

On November 25, 2024, DPSS filed the instant motions to declare Petitioners Irwin and Pearl vexatious litigants.

On January 30, 2025, the court held a status conference re: related cases and declined to relate this case to cases 24STCP02193, 24STCP02392, and 24STCP03408.

(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.

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).

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.

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 previously found all three Petitioners to be vexatious litigants in 24STCP02193 based on the same evidence. The same analysis applies. 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.

The County argues that there is no reasonable prospect that any Petitioner will prevail in this case. Petitioners assert that their CalFresh EBT cards, issued in California, were "skimmed" in Pennsylvania. The total amount lost was $3,138.76 and DPSS only replaced $739.00 per month. CSSD found that this was correct because CalFresh benefits can only be replaced up to a maximum of one month's allotment. The household's monthly allotment was $739.00. Mot. at 13.

The Petition alleges the family was homeless. No explanation is provided as to how the family managed to accumulate $3,138.76, when the monthly allotment was $739.00, while homeless, and how the benefit was awarded in California, but the cards were “skimmed” in Pennsylvania. Mot. at 13.

There are three Decisions attached to the Petition. Irwin is the sole claimant in Decision104920523 (also listed as 104920523-443) and this Decision was issued on August 31, 2023. Pearl is the sole claimant in Decision 10473980 and this Decision was issued on April 25, 2022. The claimant in the rehearing Decision R-104793980-306 is not listed on the attachment because pages are missing. However, the Decision refers to "104793980" for which Pearll was the sole claimant. Mot. at 12-13.

The Petition admits that the ALJ issued a decision on August 31, 2023 and rehearing was denied on November 27, 2023. Although the County fails to cite the pertinent statute of limitations, the court believes that it is 90 days from the date Petitioners received the written notice of the hearing decision. The instant lawsuit, filed on September 10, 2024, was not timely. The County has made a prima facie case that the Petition is untimely which Petitioners fail to rebut. 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., ¶¶ 4-6. This estimated amount is reasonable.

The motions are granted. The court previously issued 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. There is no need for another. 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 20, 2025 at 9:30 a.m.

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

[2] The County requests judicial notice of court records from the United States District Court for the District of Massachusetts (Boston), United States District Court for Central District of California, US Court of Appeal for the First Circuit, California Court of Appeal Second District, and United States District Court of Rhode Island (Providence). (RJN Exs. 1-48. The request is granted. Evid. Code §452(d).

[3] The County notes that DPSS is properly a Real Party-in-Interest and DSS is properly the Respondent.