Judge: John C. Gastelum, Case: 21-01191758, Date: 2023-11-01 Tentative Ruling
(1) Motion – Other (2) Joinder
Tentative Ruling: Defendants Richard Esquerra, Brenda Esquerra, and John Blank, joined by Pamela Lau, move for an order deeming plaintiff a vexatious litigant under CCP § 391(b)(2) and (3). The motion is DENIED.
As an initial matter, the Court notes this Motion was initially set for hearing on February 8, 2022 and was taken off calendar due to a stay in this matter. Prior to the Motion being taken off calendar, Plaintiff filed an Opposition on January 26, 2022. (ROA 93.) The Court notes Plaintiff filed a second Opposition, as well as Objections to Evidence, on November 2, 2022. Not only are Plaintiff’s filings untimely, due to the November 11 holiday, but the Court did not grant Plaintiff leave to file any new opposition papers to the Motion. Thus, the Court will not consider the second Opposition or Objections to Evidence.
Repeated Litigation under CCP § 391(b)(2): A litigant may be declared “vexatious” where “[a]fter a litigation has been finally determined against the person, [he or she] 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.” (CCP § 391(b)(2), emphasis added.)
“Finally determined” means that all avenues for direct review (appeal) have been exhausted or the time for appeal has expired. (Childs v. PaineWebber Inc. (1994) 29 Cal.App.4th 982, 994 [plaintiff cannot be adjudged “vexatious litigant” while earlier lawsuits still on appeal].)
Summary denials of writ petitions do not qualify as litigations that have been “finally determined adversely.” (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1173.)
Appeals of multiple orders within the same case that are “finally determined adversely” to appellant may be the basis for a pre-filing order. (Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 1005-1006.)
To satisfy the requirement that the relitigation be “repeatedly,” plaintiff must have attempted such litigation of the same issue more than two times. (Holcomb v. United States Bank Natl. Assn. (2005) 129 Cal.App.4th 1494, 1504 (Holcomb).)
There is a split of authority whether the relitigation must be in the same proceeding: One case says the relitigation must have occurred in the “very proceeding” in which defendant seeks to have plaintiff declared to be vexatious. (Camerado Ins. Agency, Inc. v. Superior Court (1993) 12 Cal.App.4th 838, 842.) But dictum in another case states “Section 391 does not expressly require the defendant seeking security to be a past victim of the plaintiff's previous relitigation attempts, or that the case in which the vexatious litigant determination is sought relate to litigation in which such attempts were made.” (Holcomb, supra, 129 Cal.App.4th at p. 1505.)
Defendants refer to the following four lawsuits at issue here:
1. Davis v. Blank (16-880719), which is currently pending. There have been multiple summary adjudication motions granted in defendants’ favor, but not on all issues, and some were denied (due to procedural errors). Defendants note that plaintiff has filed five noticed motions and five ex parte applications that have been denied.
2. Davis v. Fidelity Natl. Title Co. (20-1124755), which is currently pending. Defendants claim she filed that lawsuit after the court denied plaintiff leave to amend her complaint in the Blank case above. There have been numerous demurrers and motions to strike. Defendants note plaintiff filed and withdrew one motion and filed two unsuccessful ex parte applications.
3. Davis v. Saddleback Valley Community Church (20-1126155), which is currently pending. Defendants note that plaintiff requested a judicial arbitrator, which the court denied.
4. Davis v. Lau (this case), filed in 2021.
Here, there has been no final determination as to the issues being litigated. The court has ruled on several summary adjudication motions in the Blank case, but there has been no final judgment or expiration of an appeal. Orders granting summary judgment are not directly appealable. (Code Civ. Proc., § 437c(m).) An appeal lies only from the final judgment in that case, and not from interlocutory orders or rulings (the “one final judgment” rule). (See Code Civ. Proc., § 904.1.)
Since there has been no finality under Code of Civil Procedure section 391(b)(2), the court DENIES the motion on this ground.
Repeated Filing of Unmeritorious Documents under CCP § 391(b)(3): Litigants acting in pro per may be declared to be vexatious if they “repeatedly [file] unmeritorious motions, pleadings, or other papers, [conduct] unnecessary discovery, or [engage] in other tactics that are frivolous or solely intended to cause unnecessary delay.” [Code Civ. Proc., § 391(b)(3); see Morton v. Wagner (2007) 156 Cal.App.4th 963, 971-972 (Morton) [what constitutes “repeated” and “unmeritorious” filing generally within trial court's discretion]; Golin v. Allenby (2010) 190 Cal.App.4th 616, 632 [even if each filing viewed in isolation might be reasonable, multiple requests for same relief and for reconsideration of prior rulings “created an unmeritoriousness” to the filings].)
It is unclear whether such frivolous and oppressive conduct must occur in the very action where defendant seeks to have plaintiff declared to be vexatious. One case seems to assume that it does not. (See Holcomb, supra, 129 Cal.App.4th at p. 1506.) Most cases affirming the vexatious litigant designation involve situations where litigants have filed dozens of motions either during the pendency of a single action or relating to the same judgment. (Morton, supra, 156 Cal.App.4th at p. 972.)
Defendants argue plaintiff should be deemed vexatious based mainly on her filings in the other actions. Defendants claim the following filings by plaintiff in support of their argument:
1. Plaintiff filed eight “unmeritorious” motions in the first three cases, which were all denied by the court. (Millier Decl., Exh. 5.)
2. Plaintiff filed numerous “unmeritorious” and “bizarre” ex parte applications, including eight in the first three cases, all of which were denied, including an application for a nunc pro tunc order regarding a motion for summary adjudication. (Millier Decl., Exh. 6.)
3. Plaintiff filed five writ petitions in the Blank case alone, which were all denied. Two were rejected and one regarding an attempt to reverse the court’s order expunging the lis pendens on Esquerras’ property was denied. (Millier Decl., Exh. 7.)
“Not all failed motions can support a vexatious litigant designation. The repeated motions must be so devoid of merit and be so frivolous that they can be described as a ‘ “flagrant abuse of the system,” ’ have ‘no reasonable probability of success,’ lack ‘reasonable or probable cause or excuse’ and are clearly meant to ‘ “abuse the processes of the courts and to harass the adverse party than other litigants.” ’ ” (Morton, supra, 156 Cal.App.4th at p. 973.)
In Bravo v. Ismaj (2002) 99 Cal.App.4th 211, the litigant filed numerous motions contesting appointment of the special discovery master, six motions challenging the judge or his rulings, five motions for sanctions against opponent, opponent's attorney, judge and special master, a motion for continuance, and a motion for new trial. That court found approximately 20 motions were “repeated” because they all arose during the same action and many were identical to the ones previously brought and denied.
If this court takes the position that only the motions filed in this action should be considered, then the motion on this ground is denied as the moving defendants refer to filings in the other actions. This appears to be more reasonable approach. However, even if the court takes the position that all motions filed in the other actions may be considered, the outcome is the same. As stated in Morton, not all failed motions can support a vexatious litigant designation. Exhibit 5 to Millier’s Declaration shows that the subject motions were withdrawn or dealt with amending pleadings. There was one request for sanctions, one for joining parties, and another for transferring parcels. There is no indication they were frivolous.
As for the ex parte applications (Exh. 6 to Millier’s Decl.), they mostly involved requests for continuances. One of them pertained to discovery, another to appoint an arbitrator, and one for a nunc pro tunc order. The ex parte application for nunc pro tunc order in the Blank matter was procedurally improper. However, taken as a whole with the other applications, the ex parte applications, although resulting in delay in proceedings, do not clearly indicate an abuse of the processes or an intent to harass the other litigants.
As for the writ petitions in the Blank matter, two were rejected filings, and the rest were summarily denied. There was nothing from the Court of Appeal setting forth the bases for those denials. Therefore, these do not serve as a ground for deeming plaintiff a vexatious litigant.
Accordingly, the motion to deem plaintiff a vexatious litigant is DENIED.
Defendant Lau’s request for joinder is GRANTED.
Defendants’ request for judicial notice (Exhs. 1-24) is GRANTED as they pertain to the court records. (Evid. Code § 452(d).)
Plaintiff is to give notice.