Superior Court of California 

County of Los Angeles 

Department 78 

 

NICOLE JACKSON; 

 

Plaintiff, 

 

vs. 

 

WAL MART INC., et al.;  

 

Defendants. 

 

  Case No.: 20STLC01042 

 

PLAINTIFF NICOLE JACKSON’S MOTION TO SET ASIDE DISMISSAL; DEFENDANT WALMART’S MOTION TO STRIKE AND FOR A PREFILING ORDER

 

 

Plaintiff Nicole Jackson’s motion to set aside dismissal is DENIED. 

Defendant Walmart’s motion to strike is DENIED.  

Defendant’s motion for a prefiling order is GRANTED.

Defendant is ordered to file a proposed form VL-100 within three days after the date of this order. 

The Court sets a nonappearance review date of the form VL-100 for October 19, 2023 at 8:30 a.m.

Defendant to provide notice and to file proof of service of such notice within five court days after the date of this order.

FACTUAL BACKGROUND

This is an action for breach of contract, negligence, and premises liability. The First Amended Complaint (“FAC”) alleges as follows. Plaintiff Nicole Jackson (“Jackson”) visited a Defendant WalMart Inc. (“WalMart”) store to make a purchase on February 2, 2018. (FAC ¶ 1.) Jackson’s credit card was declined, and Jackson left her items with the clerk and left the store several times to call the credit card company. (FAC ¶ 2.) Jackson was ultimately able to successfully make her purchase using her credit card. (FAC ¶ 2.) While exiting the store after making her purchase, WalMart security personnel grabbed Jackson’s shopping cart and refused to let go without Jackson showing a receipt. (FAC ¶ 3.) After a supervisor arrived, security let go of the cart and allowed Jackson to leave. (FAC ¶ 5.)  

PROCEDURAL HISTORY

Plaintiff filed the Complaint on February 3, 2020 in the limited civil division, alleging two causes of action: 

1. Breach of contract 

2. Negligence 

On January 14, 2021, Plaintiff filed the FAC, alleging six causes of action and re-classifying to the civil unlimited division: 

1. Breach of contract 

2. Negligence 

3. Violation of Civ. Code § 1714 – negligent hiring and supervision 

4. Premises liability 

5. Negligent infliction of emotional distress 

6. Intentional infliction of emotional distress 

On March 30, 2021, this case was reclassified to civil unlimited and reassigned to this instant Dept. 78. 

On April 28, 2021, WalMart filed a Demurrer with Motion to Strike as to the First Amended Complaint. 

On July 12, 2021, Jackson filed a Motion to Recuse and Disqualify presiding Judge Robert S. Draper. 

On July 14, 2021, the Court struck Jackson’s Motion to Recuse the presiding judge. 

On August 4, 2021, the Court sustained WalMart’s Demurrer with leave to amend as to the First through Fourth Causes of Action and Overruled the Demurrer as to the Fifth and Sixth Causes of Action. Additionally, this Court granted the Motion to Strike as to Plaintiff’s Prayer for Punitive Damages. Plaintiff has not filed a Second Amended Complaint. 

On September 27, 2021, Plaintiff filed a second Motion to Recuse and Disqualify the Presiding Judge.

On October 12, 2021, the Court struck Plaintiff’s motion again.

On June 21, 2022, WalMart filed a Motion to Declare Vexatious Litigant.

On July 25, 2022, the Court granted WalMart’s Motion to Declare Plaintiff a Vexatious Litigant and ordered Plaintiff to post security in the amount of $31,080.00.

On December 14, 2022, the Court granted Defendant’s motion to dismiss on the grounds that Plaintiff failed to furnish security as ordered.

DISCUSSION 

Plaintiff Nicole Jackson moves to set aside the dismissal on the grounds that the dismissal is void because the judge who ordered the dismissal was disqualified.

The Court declines to strike Plaintiff’s pleading and instead will rule on the motion.

The Court may set aside any void judgment or order at any time. (Code Civ. Proc., § 473, subd. (d); Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.)  

Code Civ. Proc., section 170.3(c) provides that ff a judge who should disqualify himself or herself refuses or fails to do so, any party may file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge. The statement shall be presented at the earliest practicable opportunity after discovery of the facts constituting the grounds for disqualification. Copies of the statement shall be served on each party or his or her attorney who has appeared and shall be personally served on the judge alleged to be disqualified, or on his or her clerk, provided that the judge is present in the courthouse or in chambers.

When no answer is filed in response to a statement of disqualification, the facts set out in the statement are taken as true. (Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 424.) If the statement is untimely filed or on its face discloses no legal grounds for disqualification, the judge against whom it is filed may strike it within 10 days after filing or service, whichever is later. (Code Civ. Proc., sections 170.4(b) and 170.4(c).) Orders issued by a disqualified judge are void. (Hayward v. Superior Court (2016) 2 Cal.App.5th 10, 42.)

Here, Plaintiff argues that dismissal is void because (1) Judge Draper filed an untimely order striking Plaintiff’s statement of disqualification and (2) Plaintiff’s statement provided legal and factual grounds for disqualification.

Plaintiff’s statement of disqualification was filed on September 27, 2021. Judge Draper struck the statement on October 12, 2021, on the grounds that it failed to state a basis for disqualification as well as on the grounds that it was not properly served. Plaintiff testifies that when she attempted to serve the statement, the department was dark and the paperwork was filed with the civil clerk in room 102. 

Code Civ. Proc., section 170.3(c)(1) provides that a statement of disqualification may only be served on a clerk provided that the judge is present in the courthouse or in chambers. Here, Department 78 was dark on the date Plaintiff attempted service, meaning the judge was not in present or in chambers. Therefore, service on the clerk was not proper. 

Since proper service was never effectuated, Judge Draper’s striking the filing was not untimely. Therefore, there is no basis for granting Plaintiff’s motion to set aside the dismissal.

 Defendant moves for a prefiling order under Code Civ. Proc., section 391.7 because, among other things, Plaintiff continues to litigate this case after it was dismissed with prejudice for Plaintiff’s failure to post security as ordered by the Court. 

Code Civ. Proc., section 391.7 provides that “in addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed.”

Here, Plaintiff was declared a vexatious litigant in this case on July 25, 2022. 

Based upon Plaintiff’s failure to comply with orders in this case as well as Plaintiff’s history of litigation as set forth in the Court’s July 25, 2022 order, the Court is convinced that a prefiling order is appropriate.

The motion is granted.

DATED: October 12, 2023

                                                                    ________________________________ 

Hon. Jill Feeney 

Judge of the Superior Court