Judge John J. Kralik, Case 21BBCV00979 2022-09-16 Tentative Ruling

Plaintiff Eduardo Vallejo (“Plaintiff”) commenced this action against Defendant Select Portfolio Servicing, Inc. (“Defendant”) on November 15, 2021. Plaintiff filed the first amended complaint (“FAC”) on April 4, 2022, alleging a single cause of action for violation of the Rosenthal Fair Debt Collection Practices Act (“the Act”).

Plaintiff alleges that he incurred a consumer credit transaction debt and that Defendant has made efforts to collection the debt from Plaintiff. Plaintiff alleges that he retained an attorney, informed Defendant via email, and Defendant acknowledged that Plaintiff was represented by counsel. Nevertheless, Plaintiff alleges that Defendant mailed Plaintiff a letter to collect on the debt. Plaintiff seeks damages for Defendant’s violation of the Act.

On May 26, 2022, Defendant filed a demurrer to the FAC. On July 5, 2022, Plaintiff filed a “Request for Judicial Notice (RJN) of Omnibus demurrer to First Amended Verified Complaint and Appeal Case No. 22-55624,” which included a notice that an appeal has been filed, a substantive opposition to the demurrer, and Plaintiff’s declaration with exhibits. On July 28, 2022, Defendant filed a reply brief. On August 1, 2022, Plaintiff filed another opposition to the demurrer. On August 2 ,2022, Defendant filed the Declaration of Cathy K. Robinson in support of the demurrer. On August 3, 2022, Plaintiff filed an “Opposition to [Tentative] Order Re: Demurrer” in response to the Court’s tentative order that was posted on the Court’s website. In this document, Plaintiff copied and pasted the Court’s tentative order and added his commentary and responses to the Court’s tentative order. He sought leave to amend the complaint and to file a notice of appeal based on a “violation of due process and prejudicial opinions and speculation regarding disputed facts.” On August 4, 2022, Plaintiff filed another opposition to the demurrer, arguing that it is untimely.

The demurrer came for hearing on August 5, 2022 and the Court took the matter under submission. That same day, the Court issued its final ruling on the matter, sustaining Defendant’s demurrer to the FAC without leave to amend and dismissing Plaintiff’s FAC with prejudice.

On August 31, 2022, the Court entered the Judgment of Dismissal with Prejudice in favor of Defendant and against Plaintiff.

On August 8, 2022, Plaintiff filed a motion for reconsideration of the Court’s August 5, 2022 ruling on the demurrer.

On August 22, 2022, Plaintiff filed a request for judicial notice of reply, wherein he argues that he filed a removal of the case to federal court and that the case is presently in appeal before the Ninth Circuit.

On August 23, 2022, Plaintiff filed a request for judicial notice of declaration of Plaintiff, wherein he states that he retained Trinette G. Kent who filed the complaint on his behalf. He then copies and pastes the language from the complaint into his document.

On August 26, 2022, Plaintiff filed another request for judicial notice of leave to amend the complaint based on new facts and declaration of Plaintiff.

The matter came for hearing on September 2, 2022. Plaintiff had requested a court reporter by a party with a fee waiver, but no court reporter appeared at the time of the hearing. Thus, the Court continued the hearing to Septemebr 16, 2022 pursuant to Plaintiff’s request.

Following the hearing, Plaintiff filed several unauthorized requests for judicial notice, some specifying a hearing date of September 16, 2022, while other request for judicial notice were regarding recusal of “Judge John J. Kralic”[1] based on a conflict of interest and financial disclosure. The requests for judicial notice that refer to this hearing date are for two Notices of Appeal of Order of United States District Court and Subpoena(s) Issued and a Non Response for Production of Documents by Defendants.[2]

Defendant requests judicial notice of: (1) the order granting the motion to declare Plaintiff a vexatious litigant filed on March 3, 2021 in U.S. Bankruptcy Court, Central District of California, Case No. 2:20-ap-01648-SK in Eduardo Vallejo v. US Bank Trust et al.; (2) the Court’s memorandum of decision on the “Motion to Declare Plaintiff a Vexatious Litigant”, Docket #87 filed by U.S. Bank Trust, N.A. filed on March 2, 2021 in the U.S. Bankruptcy Court, Central District of California, Case No. 2:20-ap-01648-SK in the aforementioned case; and (3) the notice of ruling on demurrer to the FAC and motion to deem Plaintiff a vexatious litigant filed on April 21, 2022 in LASC Case No. 20STCV45290. The request is granted. (Evid. Code, § 452(d).)

Plaintiff moves for reconsideration of the Court’s prior ruling. The notice of motion is not specific about which court ruling is at issue, but it appears that Plaintiff is moving for reconsideration of the demurrer to the FAC. Further, Plaintiff has not stated a legal basis upon which he is moving for reconsideration.

Assuming he is moving pursuant to CCP § 1008(a), subsection (a) states: “(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

First, Plaintiff argues that Defendant’s demurrer was not timely filed because the FAC was filed on March 31, 2022 and Defendant filed the demurrer on May 26, 2022. The Court already discussed the timeliness of the demurrer and stated it would rule on the merits of the demurrer. (See 8/5/22 Order at pp.4-5.) Thus, the Court will not discuss the timeliness of the demurrer again, nor will this be a ground upon which the motion for reconsideration will be granted, as this argument does not constitute new or different facts, circumstances, or law.

Second, Plaintiff argues that when he appeared before the Court, no court reporter was present, though he requested one via email to Defendant. He requests that a court reporter be present for this hearing. This argument was raised at the demurrer hearing as well, which the Court previously addressed. It is not the proper procedure to request a court reporter from the opposing party via email (i.e., the Defendant) or the Court through moving papers. Rather, if Plaintiff wanted to obtain the services of a court reporter, he should have complied with the Los Angeles Local Rules. For example, Rule 2.21 regarding availability of court reporters states in relevant part:

(a) Unlimited Civil Cases. Official court reporters are not normally available for reporting trials in unlimited civil cases. Official court reporters are also not normally available for reporting law and motion matters in departments dedicated to unlimited jurisdiction cases, except as specifically listed on the court’s website.

A party who has received a fee waiver may request an official court reporter pursuant to California Rules of Court, rule 2.956(c)(2). The request must be made by using the local form, Request for Court Reporting Services by a Party with Fee Waiver (LACIV 269), or Judicial Council form FW020 and should be filed at least ten calendar days before the hearing or trial for which the reporter is requested. If the requesting party received less than ten days’ notice of the hearing or trial, the requesting party must file the request as soon as practicable. If a request is timely submitted, the clerk will notify the requestor as soon as possible if no official court reporter will be available. Given the limited availability of official court reporters, notice of the availability of a court reporter may not be given until the day of the trial or hearing.

Plaintiff has not shown the Court that any proper request to obtain a court reporter was made. This too will not be a ground upon which the motion will be granted, as Plaintiff has not shown new or different facts, circumstances, or law.

Third, Plaintiff argues that this Court lacked jurisdiction to rule on the demurrer because of his belief that the case had been removed to federal court and the pending appeal before the Ninth Circuit. The Court also dedicated a section for this argument in its demurer order and ultimately ruled that it would consider the merits of the demurrer. (8/5/22 Order at pp.3-4.) Thus, this too will not be a ground for reconsideration nor does it constitute new or different facts, circumstances, or law.

Fourth, Plaintiff argues that he explained to the Court that he filed all documents with the Court but was in a “catch-22” position because he was only able to act when he received a copy of the tentative ruling. It is unclear what Plaintiff’s argument is referring to or how this would be a ground for reconsideration. The Court notes that the tentative order is provided for the parties’ benefits to prepare for oral argument. In fact, Plaintiff filed an opposition to the Court’s tentative order to the demurrer, which the Court considered, and Plaintiff had the opportunity to present oral arguments at the hearing.

Fifth, Plaintiff argues that the Court began referring to Plaintiff’s personal situation and Plaintiff expressed he would have to recuse the sitting judge. Again, Plaintiff fails to explain how this would be a ground for reconsideration. At the demurrer hearing, the Court expressed that if Plaintiff sought recusal, Plaintiff should file a motion. No motion to disqualify or for recusal has been filed. Regardless, this is not a ground for reconsideration.

Sixth, Plaintiff argues that this Court is a hostile environment because he has had 2 different attorneys but they both withdrew. Again, it is unclear what this has to do with the merits of the demurrer or the motion for reconsideration and how this would constitute new or different facts, circumstances or law. Further, the Court notes that Plaintiff’s attorneys chose to file motions to be relieved as counsel to withdraw from the case at no prompting or encouragement from this Court.[3]

In Plaintiff’s seventh to twelfth arguments, Plaintiff argues that the demurrer was sustained on the ground that the complaint lacked sufficient facts against Defendant; Plaintiff’s prior attorney filed the FAC, which he claims corrected all deficiencies; Defendant previously argued that it was not a debt collector and that mortgage servicing companies cannot be debt collectors; Plaintiff contends that Defendant engaged in debt collection; and Plaintiff alleges that Defendant communicated with Plaintiff in violation of the Act. The prior demurrer was to the allegations of the FAC and the Court found that the FAC’s allegations were insufficient to constitute a cause of action against Defendant. Simply because an amended pleading was filed does not automatically mean that all issues were adequately addressed. Further, Plaintiff’s arguments regarding whether Defendant is or is not a debt collector was previously discussed multiple times by the Court and Plaintiff failed to amend the complaint despite the Court’s orders detailing the issues with Plaintiff’s pleading. Thus, these arguments do not constitute new or different facts, circumstances, or law. These arguments are not grounds for reconsideration.

Lastly, Plaintiff filed a third reply brief, arguing that he feels he must amend the complaint due to new facts and new third parties. This is an improper attempt to move for leave to amend the complaint. With respect to the procedural posture of the case, the action has already been dismissed. As such, the Court is considering the motion for reconsideration of its prior order sustaining the demurrer to the FAC, which resulted in the dismissal, but the Court will not consider additional or extraneous arguments or requests for relief, such as Plaintiff’s request for leave to amend the complaint. The action has been dismissed and the time for such relief has passed.

In opposition, Defendant requests that the Court impose sanctions against Plaintiff in the amount of $1,984.50 for bringing this unsuccessful motion. Defendant moves pursuant to CCP § 1008(d), which states: “A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.” The Court grants Defendant’s request for sanctions.

Plaintiff Eduardo Vallejo’s motion for reconsideration is denied. To the extent that Plaintiff also requested leave to amend the complaint, that request is denied.

Defendant Select Portfolio Servicing’s request for sanctions is granted in the amount of $1,984.50 against Plaintiff.

[1] With respect to the requests for judicial notice of recusal of Judge John J. “Kralic”, the Court notes that no motion papers were filed or hearing date reserved. Further, the Judge of this Department B is named “John J. Kralik.” The Court declines to consider these documents in ruling on this motion for reconsideration.

[2] These documents do not appear to have any effect on the motion for reconsideration.

[3] On February 4, 2022, Trinette G. Kent’s motion to be relieved as counsel was granted. Ms. Kent explained the reason for her withdrawal in her declaration by stating that she had been unaware that Plaintiff had been declared a vexatious litigant, the relationship of trust and confidence essential in an attorney-client relationship had ceased to exist, irreconcilable differences had arisen between counsel and Plaintiff, and her family was struggling with Covid.

On July 1, 2022, Jesse J. Thaler’s motion to be relieved as counsel was granted. Mr. Thaler explained the reason for his withdrawal in his declaration by stating that there had been an irremediable breakdown in communication between counsel and Plaintiff such that the attorney-client relationship was no longer viable.

Superior Court of California

County of Los Angeles

Department B