Judge James C. Chalfant, Case Number: 24STCP03914, Date: 2025-03-13 Tentative Ruling

Irwin Jacobowitz, et al. v. California Department of Social Services, et al., 24STCP03914

Tentative decision on motions declaring vexatious litigant: granted

Respondent County of Los Angeles Department of Public Social Services (“DPSS”) moves to require that each of Petitioners Irwin Jacobowitz (“Irwin”), Pearl H. Jacobowitz (“Pearl”), and Dakota Zeigerman-Jacobowitz (“Dakota”) post $70,000 in security.

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

On December 3, 2024, Petitioners Irwin, Pearl, and Dakota (collectively, “Jacobowitzes”) filed the Petition for Writ of Administrative Mandamus against Respondents DPSS and California Department of Social Services (“DSS”). The Petition alleges in pertinent part as follows.

On January 10, 2024, DPSS approved In-Home Supportive Services (“IHSS”) for Irwin. Pet., ¶7. The same day, Irwin received a Notice of Action. Pet., ¶8.

On April 3, 2024, Irwin requested a hearing from DSS, which replied with an acknowledgement letter the next day. Pet., ¶¶ 9-10.

The Administrative Law Judge (“ALJ”) received, before the hearing, relevant documents including: County’s Statement of Position; SOC 2310, titled “In-Home Support Services (HSS) Program Notice To Provider Of Ineligibility For Exemption From Workweek Limits For Extraordinary Circumstances (Exemption 2)”; SOC 821, titled “Assessment Of Need For Protective Supervision For In-Home Support Services Program”; and Irwin’s Confidential Veteran Records. Pet., ¶¶ 15-18.

On July 18, 2024, the Jacobowitzes requested the ALJ’s disqualification/recusal. Pet., ¶20. On or abut July 26, 2024, the ALJ responded. Pet., ¶21.

On or about August 19, 2024 (and after some motion practice), the ALJ issued a decision. Pet., ¶¶ 22-24. The Jacobowitzes requested a rehearing on August 27, 2024, and DSS acknowledged the request the next day. Pet., ¶¶ 25-26.

DPSS assessed Irwin as self-directing. Pet., ¶27. While DPSS scored Irwin as moderately impaired or unimpaired for memory, orientation, and judgment, the Jacobowitzes assert this was incorrect based on evaluations by Irwin’s doctor at the Veteran’s Administration that his memory and orientation are moderately impaired, his judgment is severely impaired, and he retains the physical capacity to place himself in danger. Pet., ¶¶ 28-34.

The Jacobowitzes seek administrative mandamus compelling DSS to set aside the ALJ’s determination and find Irwin eligible for Protective Supervision.

On February 10, 2024, Respondent DPSS filed and served the instant motion to declare Irwin a vexatious litigant.

On February 10, 2024, Respondent DPSS filed and served the instant motion to declare Pearl a vexatious litigant.

On February 10, 2024, Respondent DPSS filed and served the instant motion to declare Dakota a vexatious litigant.

(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.

(5) After being restrained pursuant to a restraining order issued after a hearing pursuant to Chapter 1 (commencing with Section 6300) of Part 4 of Division 10 of the Family Code, and while the restraining order is still in place, they commenced, prosecuted, or maintained one or more litigations against a person protected by the restraining order in this or any other court or jurisdiction that are determined to be meritless and caused the person protected by the order to be harassed or intimidated.

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.

On July 7, 2024, the Jacobowitzes filed a Petition for Writ of Administrative Mandamus against DPSS in Case No. 24STCP02193. On October 22, 2024, DPSS moved to declare Irwin and Pearl vexatious litigants. On October 23, 2024, DPSS moved to declare Dakota a vexatious litigant. Brener Decl., ¶7.

On January 30, 2025, the court declared all three Jacobowitzes to be vexatious litigants. Brenner Decl., ¶7, Ex. A.

The reduced hourly rate for the County’s attorney is $350 per hour effective January 1, 2025. Brenner Decl., ¶5. She estimates attorney fees of $25,000 to bring a motion for summary judgment and at least $5,000 in attorney time and court reporter/videographer expenses for each Petitioner’s deposition preparatory to support the motion for summary judgment. Brenner Decl., ¶5.

if the case proceeds to trial, the County’s the recoverable fees and costs by that time would exceed $75,000. Brenner Decl., ¶6. Given the number of Petitioners and the conduct of each Petitioner in past litigation, the County estimates this as a lengthy litigation. Brenner Decl., ¶6. If the claims go outside of the four corners of an administrative record, the County would need to retain experts, pay for court reporters, and prepare the administrative record and trial notebooks. Brenner Decl., ¶6.

Respondent County [2] separately moves for an order against each of Petitioners Irwin, Pearl, and Dakota, requiring him or her to furnish a $70,000 security for expenses and costs. The County argues that each Petitioner previously has been declared a vexatious litigant and there is no reasonable prospect that any Petitioner will prevail in this case. No opposition has been filed.

Petitioners seek protective supervision for Irwin. Protective supervision is a benefit offered through the IHSS program. Welf. & Inst. Code §12300(b). “Protective supervision” consists of observing recipient behavior and intervening as appropriate in order to safeguard the recipient against injury, hazard, or accident.” MPP §30-757.17.

“Protective Supervision is available for observing the behavior of nonself-directing, confused, mentally impaired, or mentally ill persons only.” MPP §30-757.171. The required conditions for protective supervision to be authorized are: (1) the person is “nonself-directing, confused, mentally impaired, or mentally ill” (MPP §30-757.171); and (2) “a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely” (MPP §30-757.173(a)). Such persons “cannot protect themselves from injury.” Miller v. Woods, (1983) 148 Cal.App.3d 862, 869.

Protective supervision benefits are not routinely offered but are offered if there is a constant 24 hour-a-day-need need. MPP §30-757.173(a). The applicant’s mental functions of memory, orientation, and judgment are evaluated on a three-point scale: Rank 1 (unimpaired), 2 (mildly impaired), and 5 (severely impaired). MPP §30-756.372. Other factors could include the living environment, age, lack of injuries and parental absence, and/or fluctuation in needs. Welf. & Inst. Code §12301.1. The need for around-the-clock supervision hinges on whether the applicant would engage in potentially dangerous behaviors if he/she did not have 24-hour supervision. MPP §§ 30- 756.372; Calderon v. Anderson, (1996) 45 Cal.App.4th 607, 615, 616; Marshall v. McMahon, (1993) 17 Cal.App.4th 1841, 1852-53.

DPSS contends the pertinent facts are as follows. This is an administrative writ seeking review of a DSS administrative hearing in State Hearing Case No. SHN-105003297. Pet., p. 1. The Petition admits that Irwin is the beneficiary and he is alleged to be a veteran with "Post Traumatic Stress Disorder (PTSD), Mood Disorder NOS, ADHD, Bipolar AFF." Pet., ¶45.

The Petition alleges that Irwin’s Veteran Administration doctor described his memory and orientation as moderately impaired and his judgment as severely impaired. Pet., ¶28. The doctor also noted that Irwin retained the physical capacity to place himself in danger. Pet., ¶29. DPSS's assessment ranked Irwin’s memory as moderately impaired, orientation as unimpaired, and judgment as mildly impaired. Pet., ¶ ¶ 30, 31, 34.

“Protective Supervision is available for observing the behavior of nonself-directing, confused, mentally impaired, or mentally ill persons only.” MPP §30-757.171. The ALJ conducted the hearing and issued a decision on August 19, 2024, finding that Irwin is "selfdirecting" and therefore ineligible for protective supervision. Pet., ¶62. DPSS notes that Irwin is sufficiently self-directing to have filed dozens of lawsuits and there is no suggestion that he is subject to a guardianship or a conservatorship. The Petition makes no allegation that Irwin is not self-directing. Based on the mental findings of both the doctor and DPSS, and without an allegation that Irwin is nonself-directing, 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 $75,000 in attorney fees and costs. Brenner Decl., ¶6. This estimated amount is reasonable.

The motions are granted. The court previously found each Petitioner to be a vexatious litigant and issued a prefiling order which precludes Petitioners 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. In this case, each Petitioner shall post a $70,000 bond before continuing to prosecute the case. An order to show cause re: dismissal shall issue with respect to bond posting for April 10, 2025.

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

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