Judge John J. Kralik, Case BC626405 2023-04-14 Tentative Ruling

Plaintiff Antranik Kevorkian (“Plaintiffs”) alleges that while he was trying to serve Defendant Lisa Hastings (“Defendant”) with court papers, she ran from her driveway and charged in Plaintiff’s direction angrily, yelling and with pepper spray in hand.

The first amended complaint (“FAC”), filed September 28, 2016, alleges causes of action for: (1) violation of Penal Code, §240 (assault); (2) violation of Penal Code, §242 (battery); (3) intentional infliction of physical and emotional pain and mental distress; and (4) extreme and outrageous conduct.

On March 10, 2023, Plaintiff filed a motion under CCP § 391.8 for an order vacating the prefiling order and removing Plaintiff from the vexatious litigant list issued pursuant to CCP § 391.7(a) in this action.

(a) A vexatious litigant subject to a prefiling order under Section 391.7 may file an application to vacate the prefiling order and remove his or her name from the Judicial Council's list of vexatious litigants subject to prefiling orders. The application shall be filed in the court that entered the prefiling order, either in the action in which the prefiling order was entered or in conjunction with a request to the presiding justice or presiding judge to file new litigation under Section 391.7. The application shall be made before the justice or judge who entered the order, if that justice or judge is available. If that justice or judge who entered the order is not available, the application shall be made before the presiding justice or presiding judge, or his or her designee.

(b) A vexatious litigant whose application under subdivision (a) was denied shall not be permitted to file another application on or before 12 months has elapsed after the date of the denial of the previous application.

(c) A court may vacate a prefiling order and order removal of a vexatious litigant's name from the Judicial Council's list of vexatious litigants subject to prefiling orders upon a showing of a material change in the facts upon which the order was granted and that the ends of justice would be served by vacating the order.

Erasure of the vexatious litigant designation “requires substantial evidence that the vexatious litigant has mended ‘his ways or conduct.’” (Luckett v. Panos (2008) 161 Cal.App.4th 77, 83.) Some factors that bear on whether a vexatious litigant has “mended his ways” include:

First, it goes without saying the applicant must show a propensity for honesty in his or her application. That means an accurate confrontation with the facts on which the prior vexatious litigant finding was made, as well as intervening facts that might not put the application in a favorable light.

Second, the applicant should show some genuine remorse for the costs of litigation inflicted on the defendants who were the object of previous lawsuits.

Third, in the same vein as section 68511.3, subdivision (d)(1)'s requirement that in forma pauperis litigants notify the court within five days of any changed financial circumstances allowing them to pay part or all of their filing fees, an applicant to erase vexatious litigant status should, consistent with his or her financial situation, show some genuine effort at restitution toward the previous victims of his litigation, including actual payment of cost orders made by the courts in that litigation.

Fourth, the applicant must actually give up the habit of suing people as a way of life. It is not some success in litigation, even after a person is adjudged to be a vexatious litigant, that shows a change of circumstances. Just the opposite is the case. Even some interim procedural success may simply encourage the habit of litigation as a way of spending one's free time.

On February 11, 2019, in this action, Case No. BC626405 Antranik Kevorkian v. Lisa Hastings (“Hastings Action”), the Court granted in part and denied in part defendant Lisa Hastings’ motion to declare Plaintiff a vexatious litigant. The Court found that Ms. Hastings had established that Plaintiff was a “vexatious litigant” within the meaning of CCP § 391 and thereby entered a prefiling order pursuant to CCP § 391.7, prohibiting Plaintiff from filing any new litigation in the courts of this state in propia persona without first obtaining leave of the presiding justice or presiding judge of the court where litigation was proposed to be filed. The Court denied without prejudice the relief requested under sections 391.1 and 391.3 (i.e., requiring Plaintiff to furnish security prior to filing new litigation and not allowing him to proceed in forma pauperis). That same day, the Court entered a Prefiling Order – Vexatious Litigant (Form VL-100) against Plaintiff.

On March 22, 2019, the Court denied Plaintiff’s motion for reconsideration (CCP § 1008(a)) of the February 11, 2019 ruling declaring him a vexatious litigant.

On April 8, 2019, the Court denied Plaintiff’s “Order on Application to Vacate Prefiling Order and Remove Plaintiff/Petitioner from Judicial Council Vexatious Litigant List” (Form VL-125).

On June 14, 2019, the Court denied Plaintiff’s motion to set aside the orders entered on February 11, 2019, March 22, 2019, and April 8, 2019.

Plaintiff appealed. On April 22, 2020, the Court of Appeal issued a Remittitur, attaching a decision dated January 23, 2020. The Court of Appeal affirmed this Court’s June 14, 2019 order denying Plaintiff’s CCP § 473(d) motion to set aside the prefiling order.[1]

On October 8, 2021, Plaintiff filed a motion under CCP § 391.8 for an order vacating the prefiling order and removing Plaintiff from the vexatious litigant list issued pursuant to CCP § 391.7(a) in this action. On December 3, 2021, the Court denied the motion to vacate.

Plaintiff appealed this Court’s December 3, 2021 order. On September 15, 2022, the Court of Appeal issued a remittitur, which attached the Court of Appeal’s May 19, 2022 order. The Court of Appeal found that because Plaintiff was subject to a prefiling order, he was required to obtain leave of the administrative presiding justice of the court before filing his notice of appeal, which he failed to do. The Court of Appeal further stated that it sent notice to Plaintiff to demonstrate that his appeal has merit and was not taken for purposes of harassment or delay pursuant to CCP § 391.7(b)-(c). The Court of Appeal declined to issue a prefiling order allowing the appeal to proceed and thus dismissed the appeal.

This Court entered its last order on Plaintiff’s motion to vacate the prefiling order on December 3, 2021. Plaintiff filed this instant motion on March 10, 2023. As such, the motion was brought after 12 months has elapsed from the denial of the last petition. (CCP § 391.8(b).)

Plaintiff argues that the prefiling order should be vacated to ensure that the ends of justice would be served. Plaintiff relies on PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965. In that case, the Court of Appeal stated: “[A]lthough we believe a prefiling order entered pursuant to section 391.7 may be reversible under section 533 as a form of injunction, Kennedy did not make the showing necessary for such a reversal. Kennedy failed to establish under section 533 either (a) ‘the ends of justice would be served’ by the dissolution of the pre-filing order or (b) there was a ‘material change in the facts’ upon which the order was entered.” (PBA, supra, 112 Cal.App.4th at 986.)[2]

Plaintiff argues that he has not filed 5 litigations in the past 7 years when this Court entered the order on February 11, 2019 or even in the past 15 years. He argues that the decision declaring him a vexatious litigant violates the spirit of the law and his due process and constitutional rights.

Plaintiff’s memorandum of points and authorities is essentially a reiteration of the reasons why the underlying motion to declare him a vexatious litigant was unmeritorious in the first place. The Court has addressed this argument multiple times. To the extent Plaintiff’s motion is essentially a motion for reconsideration of the Court’s orders on the motion to declare him a vexatious litigant and/or the motion to vacate the prefiling order, Plaintiff has not provided any new or different facts, circumstances, or law that would warrant the Court’s reconsideration of its prior orders.

Plaintiff also argues that Defendant Lisa Ann Hastings would not be prejudiced by the Court granting this motion. However, this is not the standard for vacating a prefiling order.

The Court finds that Plaintiff has not established his burden in showing that the ends of justice would be served by dissolving the prefiling order or that there was a material change in the facts upon which the order was entered pursuant to the PBA, LLC case. He has not presented the Court with any material change in the facts upon which the prefiling order was based nor has he presented any new facts to support vacating the vexatious litigant determination. Further, he has not shown how the ends of justice would be served by reversing the prefiling order. Plaintiff reargues the same reasons why he should not be a vexatious litigant in the first place.

In addition, Plaintiff has not shown with substantial evidence that he has mended his ways or conduct, as stated in the Luckett case. This is a high standard and showing. Here, Plaintiff has not shown that he has genuine remorse for the costs of litigation inflicted on the defendants in prior cases or even this action, he has not stated any attempts at restitution towards previous victims of his litigation, and he has not shown that he has given up the habit of suing people as a way of life.

Thus, for the reasons stated above, the Court denies Plaintiff’s motion and application to vacate the prefiling order. Further, as noted in CCP § 391.8(b), “[a] vexatious litigant whose application under subdivision (a) was denied shall not be permitted to file another application on or before 12 months has elapsed after the date of the denial of the previous application.”

Plaintiff’s motion to vacate the prefiling order and remove him from the vexatious litigant list is denied.

[1] Antranik Kevorkian filed an action on August 22, 2016 against Defendant County of Los Angeles Sheriff’s Department in Case No. EC065694 (“Sheriff Action”). In the Sheriff Action, Plaintiff filed a motion under CCP § 391.8 for an order vacating the prefiling order and removing Plaintiff from the vexatious litigant list issued pursuant to CCP § 391.7(a) in the Hastings Action on February 26, 2021. The matter came for hearing on March 25, 2021 and the Court denied Plaintiff’s motion to vacate the prefiling order and remove him from the vexatious litigant list, finding that Plaintiff improperly filed the motion in the Sheriff Action and that the motion should have been filed in the Hastings Action.

[2] CCP § 533 states: “In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.”

Superior Court of California

County of Los Angeles