Judge: Mark A. Young, Case: 23SMCV03211, Date: 2025-04-01 Tentative Ruling
Case Number: 23SMCV03211 Hearing Date: April 1, 2025 Dept: M
CASE NAME: Cox, et al.,
v. GK Management Inc., et al.
CASE NO.: 23SMCV03211
MOTION: Special Motion to Strike; Demurrer; Motion to Dismiss.
HEARING DATE: 4/1/2025
ANTI-SLAPP
Defendants GK Management Co., Inc.,
and Panay Way Marina LP moves to strike the entirety of Plaintiffs Earl Cox and
Dael Wilcox’s First Amended Complaint, and for fees against Plaintiffs in the
amount of $8,950.00.
Legal Standard
Code of Civil Procedure section
425.16 permits the Court to strike causes of action arising from an act in
furtherance of the defendant's right of free speech or petition, unless the
plaintiff establishes that there is a probability that the plaintiff will
prevail on the claim. “The anti-SLAPP procedures are designed to shield a
defendant’s constitutionally protected conduct from the undue burden of
frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.)
“The anti-SLAPP statute does not insulate defendants from any liability
for claims arising from the protected rights of petition or speech. It only
provides a procedure for weeding out, at an early stage, meritless
claims arising from protected activity.” (Id. at 384.)
“Resolution of an anti-SLAPP motion
involves two steps. First, the defendant must establish that the challenged
claim arises from activity protected by section 425.16. If the defendant makes
the required showing, the burden shifts to the plaintiff to demonstrate the
merit of the claim by establishing a probability of success.” (Baral, supra,
1 Cal.5th at 384, citation omitted.) The California Supreme Court has
“described this second step as a ‘summary-judgment-like procedure.’ The court
does not weigh evidence or resolve conflicting factual claims. Its inquiry is
limited to whether the plaintiff has stated a legally sufficient claim and made
a prima facie factual showing sufficient to sustain a favorable judgment. It
accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing
only to determine if it defeats the plaintiff’s claim as a matter of law.
‘[C]laims with the requisite minimal merit may proceed.’” (Id. at
384-385 [citations omitted].)
A moving party must move to strike
under this section within 60 days of service of the complaint. (CCP
§425.16(f).)
Judicial Notice
As to each of the presented motions
(Anti-SLAPP, Demurrer, Motion to Dismiss), Defendants request judicial notice
as to certain court documents and other official records. The requests are
GRANTED. (Evid. Code § 452(d).)
First Prong Analysis
CCP section 425.16(e) defines
protected acts as the following: 1) any written or oral statement or writing
made before a legislative, executive, or judicial proceeding, or any other
official proceeding authorized by law; 2) any written or oral statement or
writing made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding
authorized by law; 3) any written or oral statement or writing made in a place
open to the public or a public forum in connection with an issue of public
interest; or 4) any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech in
connection with a public issue or an issue of public interest.
Litigation-related activities, such
as the filing of an unlawful detainer action, reflect the exercise of a
person‘s constitutionally guaranteed right to petition the government for
grievances. (Navellier v. Sletten (2002) 29 Cal.4th 84, 90.) “[A]
notice of eviction or termination of a tenancy is protected activity where […]
it is a legal prerequisite for bringing the unlawful detainer action.” (Wallace
v. McCubbin (2011) 196 Cal.App.4th 1169, 1182-83.) “[C]ommunications
preparatory to or in anticipation of the bringing of an action or other
official proceeding are […] entitled to the benefits of section 425.16.” (Briggs
v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.)
Plaintiffs list several causes of
action in the FAC, including Breach of Contract, Intrusion, Public Disclosure
of Private Facts- Invasion of Privacy, Property Damage, failure to adhere to
Harbor and Navigation Code §§ 34, 40, 70.3-70.5, Defamation of Character, Libel
and Slander. The only cause of action specifically supported is for breach of contract
regarding a certain Berth Agreement. (See FAC, Att. BC-2.) Plaintiffs allege
that Defendants and Cox were parties to a Berth Agreement for a boat slip at the
Panay Way Marina (FAC, BC-2 Attach., ¶ 2.) Defendants allegedly breached the Berth
Agreement and disrupted the implied benefit of quiet enjoyment through a “campaign”
of harassment via unwarranted letters, unsubstantiated parking tickets,
intimidating verbal communications, filing a false police report, and inventing
new rules specifically for Plaintiff. (Id.) Ultimately, on June 21, 2022, in
retaliation against Plaintiff for complaining, Defendants issued a 30-day
notice for Plaintiff to vacate, citing nine erroneous allegations of breach of
contract, without a chance to remedy or dispute the allegations. (Id.)
Plaintiff Cox alleges that Defendants
breached the Berth agreement by:
a) having “Henry Chomsky” make a
false report about Cox’s assistant “living aboard”, causing Cox’s lease to be
violated (BC-2, ¶ 3);
b) in 2018, issuing Cox a notice
that Wilcox was storing a vehicle in violation of the Berth agreement when, in
fact, the vehicle was permitted (¶ 4);
c) in 2020, issuing a notice to Cox
alleging he was living on his boat when he was not (¶ 5);
d) issuing a 30-day notice on June
21, 2022, which alleged Cox’s vehicle was parked on Marina property for more
than 2 days when it was not parked on Marina property for more than 2
overnights (¶ 6);
e) issuing a written “Final
Warning” regarding an alleged “poor condition” boat and “beekeeping” activity
(¶ 7);
f) sending the 30-day notice
including the allegation that Wilcox parked a vehicle with an advertisement
painted on it during March 4 - 9 (¶ 8);
g) issuing a parking ticket for the
car advertisement (id.);
h) sending the 30-day notice
including the allegation of improperly storing personal property in a vehicle
(¶ 9);
i) authorizing Unified Protective
Services to issue Cox a ticket for parking in an unauthorized space,
abandonment, and parking for over 5 hrs. (¶ 10);
j) sending the 30-day notice
including the allegation that on April 8, 9 & 12, 2022, Wilcox parked his
vehicle with the purported advertisement (¶ 11);
k) having “Chodsky” make up rules
to harass Plaintiffs, including limiting Cox’s guest passes and parking hours
(¶ 12);
l) filing an unlawful detainer
despite Cox being given 90 days to vacate after expiration of the 30-day notice;
(¶13)
m) disclosing private information
of the UD case to Los Angeles County Beaches and Harbor staff, including a copy
of the notice of default judgment (¶¶ 14-15); and
n) damaging his boat by drilling
into the lock hasp on February 26, 2023, and destroying the hap’s original
integrity (¶¶ 20, 25).
Most of these points arise directly
from Defendants’ alleged service of the 30-day notice and/or the filing of the
unlawful detainer complaint. (FAC ¶¶ 3-13.) In such instances, the FAC explicitly
targets the issuance of the 30-day Notice and the filing of the unlawful
detainer complaint as the cause of harm. Generally, a landlord's service of
notice to terminate tenancy is an act in furtherance of free speech or
petitioning rights under. (Birkner v. Lam (2007) 156 Cal.App.4th 275,
282 [subsequent lawsuit against landlord for wrongful eviction and intentional
infliction of emotional distress subject to anti-SLAPP motion]; Feldman v.
1100 Park Lane Assocs. (2008) 160 Cal.App.4th 1467, 1480 [prosecution of
unlawful detainer action “indisputably is a protected activity within the
meaning of § 425.16” including alleged “threats” which were communications in
connection with an ongoing dispute and in anticipation of litigation].) Thus,
the FAC arises from protected activity – at least in major part. Furthermore, Plaintiffs
allege that they were harmed by Defendants’ issuance of the warnings and tickets
which formed the basis for the eviction and were reasonably made in
anticipation of the unlawful detainer proceeding. (FAC Att. BC-2 ¶¶ 7-11.) Plaintiffs
were also harmed by Defendants’ contacting of the Sheriffs regarding the
eviction process. (FAC Att. BC-2 ¶¶ 2, 14.) Notably, even false police
reports are facially protected activity. (See Kenne v. Stennis (2014)
230 Cal.App.4th 953, 966 [“the making of allegedly false police reports also
can be protected petitioning activity under the first prong of the anti-SLAPP
statute if the falsity of the report is controverted”].)
That said, not all of the
allegations arise from the cited protected activity. Certain allegations (i.e.,
points (a), (b), (c), (g), (i), (k), (n) above) allege breaches of contract not
arising from the issuance of the Notice or UD proceeding. The cited points allege
breach of the lease agreement by bad-faith termination of the lease on false
and pretextual grounds or other property damage. The points do not allege that
Plaintiffs were harmed by service of the 30-day Notice and/or the filing of the
unlawful detainer complaint, but by Defendants’ underlying decision to terminate
the lease based on allegedly false pretenses. Point (n), Defendants’
lock-drilling which caused property damage, also does not facially arise from
Defendants’ protected eviction efforts. No judicially noticeable documents or
allegations suggest that the drilling of the lock hasp was attendant to the
execution of the writ of possession such that it could qualify as “other
conduct” in furtherance of the right to petition.
Caselaw has criticized Birkner
and Feldman for taking a overly broad a view of protected conduct in the
unlawful detainer context. (See Ulkarim v. Westfield LLC, (2nd Dist.
2002) 277 Cal. App. 4th 1266, 1275–81 [finding these cases to be “difficult to
reconcile” with later collected caselaw].) “The fact that such service and
filing preceded the filing of plaintiff's operative complaint, or even
triggered the filing of plaintiff's complaint, does not compel the conclusion
that her complaint is based on [] service of the notice of termination or
filing of the unlawful detainer complaint. Courts distinguish a cause of action
based on the service of a notice in connection with the termination of a
tenancy or filing of an unlawful detainer complaint from a cause of action
based on the decision to terminate or other conduct in connection with the
termination… [¶¶] The lesson we learn from this line of authority is that a
tenant's complaint against a landlord filed after the service of a notice of
termination and the filing of a complaint for unlawful detainer does not arise
from those particular activities if the gravamen of the tenant's complaint
challenges the decision to terminate the tenancy or other conduct in
connection with the termination apart from the service of a notice of
termination or filing of an unlawful detainer complaint. (Id. at
1276-1279 [emphasis added].) The gravamen of the contract causes in Ulkarim
was for breach of the lease agreement by terminating the lease in bad faith,
with no valid grounds for termination, and despite plaintiff's holdover
tenancy, and that the notice of termination was ineffective. (Id. at
1281.) Critically, it was not the service of the notice of termination or the
filing of the unlawful detainer complaint, but the underlying decision to
terminate which “does not involve protected activity under the anti-SLAPP
statute”. (Id.) Here, the allegations found in points (a), (b), (c),
(g), (i), (k), and (n) above should survive the first prong analysis for the
same reasons as those found in Ulkarim.
Thus, the FAC presents a mixed
cause of action, involving both protected and unprotected conduct. The Supreme
Court of California clarified the procedure for analyzing protected activity
claims in a cause of action supported by allegations of protected and
non-protected behavior:
At the first step, the moving
defendant bears the burden of identifying all allegations of protected
activity, and the claims for relief supported by them. When relief is sought
based on allegations of both protected and unprotected activity, the
unprotected activity is disregarded at this stage. If the court determines that
relief is sought based on allegations arising from activity protected by the
statute, the second step is reached. There, the burden shifts to the plaintiff
to demonstrate that each challenged claim based on protected activity is
legally sufficient and factually substantiated. The court, without resolving
evidentiary conflicts, must determine whether the plaintiff’s showing, if
accepted by the trier of fact, would be sufficient to sustain a favorable
judgment. If not, the claim is stricken. Allegations of protected activity
supporting the stricken claim are eliminated from the complaint, unless they
also support a distinct claim on which the plaintiff has shown a probability of
prevailing.
(Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)
Here, Defendants have specifically
identified allegations of protected conduct which form the basis of relief
alleged against them, including the substantial allegations that they issued a
30-day notice or related warnings/threats (Att. BC-2, ¶¶ 2, 6-9, 11, 13-15, 20,
25), filed an UD litigation (¶ 13), and disclosed information to the Sheriff
regarding the UD litigation (¶¶ 14-15). These allegations support the gravamen
of the causes of action for Breach of Contract, Intrusion, Public Disclosure of
Private Facts- Invasion of Privacy, failure to adhere to Harbor and Navigation
Code §§ 34, 40, 70.3-70.5, Defamation of Character, Libel and Slander.
Defendants fail to meet their
burden as to the following unprotected conduct, including having “Chomsky” make
a false report about Cox’s assistant “living aboard;” causing Cox’s lease to be
violated (Att. BC-2, ¶ 3); issuing Cox a notice that Wilcox was storing a
vehicle in violation of the Berth agreement when, in fact, the vehicle was
permitted (¶ 4); issuing a notice to Cox alleging he was living on his boat
when he was not (¶ 5); issuing a parking ticket for the car advertisement (¶ 8);
issuing Cox a ticket for parking in an unauthorized space, abandonment, and
parking for over 5 hrs. (¶ 10); and having “Chodsky” make up rules to harass
Plaintiffs (¶ 12).
Second Prong Analysis
Plaintiffs have failed to oppose
and necessarily fail to meet their responsive burden of production.
Accordingly, the court must grant the motion and strike the above-cited
protected activities in support of the causes of action for Breach of Contract,
Intrusion, Public Disclosure of Private Facts- Invasion of Privacy, failure to
adhere to Harbor and Navigation Code §§ 34, 40, 70.3-70.5, Defamation of
Character, Libel and Slander.
Accordingly, the motion is GRANTED
in part. Sanctions are awarded in the amount of $5,140.00. Counsel demonstrates
that eight hours were spent preparing this Special Motion to Strike at an
hourly rate of $635.00, plus costs of $60.00. (Becerra Decl., ¶ 2.)
DEMURRER
Defendants demur to each cause of
action alleged in the FAC.
Legal Standard
A demurrer for sufficiency tests whether
the complaint states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. In a demurrer proceeding, the defects must be
apparent on the face of the pleading or via proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the
pleadings alone and not the evidence or other extrinsic matters. Therefore, it
lies only where the defects appear on the face of the pleading or are
judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff
need only allege ultimate facts sufficient to apprise the defendant of the
factual basis for the claim against him. (Semole v. Sansoucie (1972) 28
Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions,
deductions or conclusions of fact or law alleged in the pleading, or the
construction of instruments pleaded, or facts impossible in law.” (S. Shore
Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations
omitted.)
A special demurrer for uncertainty is
disfavored and will only be sustained where the pleading is so bad that
defendant cannot reasonably respond—i.e., cannot reasonably determine what
issues must be admitted or denied, or what counts or claims are directed
against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc.
(1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat
vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
“Liberality in permitting amendment is
the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in
what manner¿plaintiff can amend the complaint, and¿how¿that
amendment will change the legal effect of the pleading.¿(Id.)
Demurrer Analysis
Given the partial success of the
above anti-SLAPP motion, the Court turns to the merits of demurrer targeting
the remaining causes of action.
Breach of Contract
Defendants
demur to the breach of contract cause of action. “The standard elements of a
claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s
performance or excuse for nonperformance, (3) defendant’s breach, and (4)
damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York
Times Co. (2008) 164 Cal.App.4th 1171, 1178.)
Defendants argue that the FAC does
not allege all of the necessary elements. Plaintiffs allege that Defendants and
Cox were parties to the Berth Agreement. (FAC, BC-2 Att., ¶ 2.) Plaintiffs
allege that Defendants breached the Berth Agreement by having “Chomsky” make a
false report about Cox’s assistant “living aboard” (¶ 3); issuing Cox a notice
that Wilcox was storing a vehicle in violation of the Berth agreement when, in
fact, the vehicle was permitted (¶ 4); issuing a notice to Cox alleging he was
living on his boat when he was not (¶ 5); issuing a parking ticket for the car
advertisement (¶ 8); issuing Cox a ticket for parking in an unauthorized space,
abandonment, and parking for over 5 hrs. (¶ 10); and having “Chomsky” make up
rules to harass Plaintiffs (¶ 12). As alleged, Defendants wrongfully terminated
the lease on these pretenses. This would violate the provisions of the attached
Berth Agreement, including the rights provided under sections 3 (exclusive use
of the Berth and related storage), 9(a), (b), (g) & (i) (terms for
Plaintiffs’ permitted use of Berth), 12 (parking regulations), 6 (remedies in
case of default), 21(b) (for cause termination), and 23 (additional provisions
incorporated). Plaintiffs were harmed by these breaches, as they are no longer able
to enjoy the rental, and had to travel to meet in person, and had to remediate
the alleged violations. (FAC BC-4.) Cox alleges beyond the jurisdictional
maximum in damages. (FAC BC-5.) As such, the FAC states a claim by Cox against
Defendants for breach of the Berth Agreement.
Plaintiffs’
breach of the Berth Agreement has already been adjudicated in a separate
unlawful detainer proceeding. Defendants fail to brief the law of res judicata.
The doctrine of res judicata generally precludes parties, or their
privies, from relitigating a cause of action determined with finality in a
prior proceeding. (Smith v. ExxonMobil Oil Corp. (2007) 153
Cal.App.4th 1407, 1413-14.) The doctrine has two aspects: it applies to both a
previously litigated cause of action, referred to as claim preclusion, and to
an issue necessarily decided in a prior action, referred to as issue
preclusion. (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828.) Issue
preclusion will only apply if the party to be bound agreed expressly or
impliedly to submit an issue to prior adjudication and had a full and fair
opportunity to litigate under circumstances affording due process protections.
(Ayala v. Dawson¿(2017) 13 Cal.App.5th 1319, 1327.)
Critically here, the nature of
unlawful detainer actions prevents a blanket application of general issue
preclusion rules. An unlawful detainer action is a summary proceeding
ordinarily limited to resolution of the question of possession. (Malkoskie
v. Option One Mortg. Corp. (2010) 188 Cal.App.4th 968, 973.) Any judgment
arising from an unlawful detainer action generally is given limited res
judicata effect. (Ibid.) Litigation of an affirmative defense, even one
not ordinarily cognizable in unlawful detainer, if it is raised without
objection, and if a fair opportunity to litigate is provided, will result in a
judgment conclusive upon issues material to that defense. (Vella v.
Hudgins (1977) 20 Cal.3d 251, 257; cf. Wood v. Herson (1974) 39
Cal.App.3d 737.)
Defendants
note the following pertinent judicially noticeable facts. In response to the
30-Day Notice to Vacate, Cox initially filed a civil action against Panay Way
Marina L.P., GK Management Co., Inc., and Unified Protection Services, on July
21, 2022. (RJN Exs. I, N.) On August 11, 2022, GK Management filed its unlawful
detainer proceeding against Cox. (RJN, Ex. J.) On October 24, 2022, GK
Management obtained a judgment against Cox in the unlawful detainer action.
(RJN, Ex. K.) On March 3, 2023, the Court denied Cox’s motion to set aside the
unlawful detainer judgment. (RJN, Ex. L.) On March 13, 2023, Cox appealed the
order denying his motion to set aside the unlawful detainer judgment. (RJN, Ex.
M.) In the First Civil Action, with Defendants GK Management Co., Inc.’s and
Panay Way Marina L.P.’s Motion to Deem Requests for Admissions Admitted pending,
and their Demurrer to Complaint pending before the Court for hearing on July
20, 2023, Plaintiff Cox voluntarily dismissed the First Civil Action. (RJN Exs.
N & B.)
The underlying UD action does not
have a preclusive effect on this litigation. The UD Action’s record was not
sufficiently developed such that Cox fairly and fully litigated Defendants’
alleged breach of lease. Cox filed an answer to the UD Action on September 8,
2022, challenging the validity of the 30-day notice on the grounds that there
was no grounds for a for-cause termination because Cox did not violate “any of
the 9 allegations” stated by the 30-day notice. However, the unlawful detainer
action never litigated the defenses Cox raised in his answer. Default was
entered against Cox on September 6, 2022, two days prior to his answer. The default
was never set aside. The Default judgment was entered on October 24, 2022, and
a writ of possession was issued on November 30, 2022. Cox filed a motion to
vacate the default/default judgment, which was denied on February 25, 2023.
Cox’s appeals were later abandoned. The record does not show that the courts
reached or considered Cox’s claims presented in this matter. Thus, the UD
action does not preclude the present claims. The other case, 22SMCV1170, was
dismissed without prejudice and provides no finality of judgment. Thus, the
doctrine of res judicata would not apply to Cox’s claims.
The Court otherwise concurs that
the FAC fails to allege that a contract exists between Wilcox and Defendants. Accordingly,
the demurrer is SUSTAINED without leave to amend as to Wilcox and OVERRULED as
to the first cause of action stated by Cox.
Uncertainty
The Court also concurs that the
remaining unenumerated causes of action are uncertain and do not even include
conclusory allegations of elements, let alone sufficient facts supporting each
element. This includes the purported causes of action for Intrusion, Public
Disclosure of Private Facts- Invasion of Privacy, Property Damage, Failed to
adhere to Harbor and Navigation Code Sections 34, 40, 70.3 - 70.5, Defamation
of Character, Libel and Slander. (FAC ¶ 10.) The Court cannot tell which causes
of action are even directed against Defendants, or which Plaintiff(s) bring the
causes of action.
Plaintiffs have failed to oppose,
and therefore failed to show any cause for leave to amend. The Court is not
inclined to grant leave to amend unless Plaintiffs explain the factual and
legal basis of the above causes, especially in light of Plaintiff Wilcox’s
apparent lack of standing and the stricken allegations of protected conduct.
Accordingly, the remainder of the demurrer
is SUSTAINED without leave to amend.
MOTION TO DISMISS
Defendants move for an order
declaring Plaintiffs as vexatious litigants and dismissing this action in its
entirety as to Defendants without prejudice, or in the alternative, for an
order to stay proceedings until Plaintiffs post the required security pursuant
to Code of Civil Procedure sections 391, 391.1, 391.3, 391.6, and 391.7.
Legal Standard
Vexatious litigant statutes were
created to counter the abuse of the court system by “persistent and obsessive
litigants.” (Bravo v. Ismaj (2002), 99 Cal. App. 4th 211,
220-21.)
The vexatious litigant statutes “do not provide for a single
procedural mechanism for declaring a person a vexatious litigant” because the
“statutes refer to a person's vexatious litigant status solely in connection
with each of the statutory remedies”—a prefiling order or security order. (Id.
at 223).)
For the court to grant a motion for
requiring security, a party is required to show (1) that the litigant is
vexatious, and (2) “that there is not a reasonable probability that he¿or
she¿will prevail in the litigation” against the moving party. (CCP §§
391.1-391.6.) A litigant is entitled to a hearing for his or her “right to
oral argument and to present evidence” before the court declares him or her
vexatious and imposes security under sections 391.1 through 391.6. (Bravo,
99 Cal.App.4th 223.)
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.” (CCP §
391.7.)
To be deemed vexatious, the litigant
must fit any of the following definitions:
(1) A vexatious litigant is a
person who, in the immediately preceding 7 years “has commenced, prosecuted, or
maintained” in propria persona at least five litigations, other than in a small
claims court, that have been (a) finally determined adversely to the person, or
(b) unjustifiably permitted to remain pending at least 2 years without having
been brought to trial or hearing.
(2) A vexatious litigant is a
person who, “after a litigation has been finally determined against the person,
repeatedly relitigates or attempts to relitigate in propria persona either (a)
the validity of the determination against the same defendant or defendants as
to whom the litigation was finally determined, or (b) 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) A vexatious litigant is a
person who, “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) A vexatious litigant is a
person who, “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.”
(CCP § 391.)
Plaintiff Wilcox
Defendants demonstrate that Wilcox
is already named as a vexatious litigant. Defendants’ judicially
noticeable documents show that in 2009, Wilcox was found to be a vexatious
litigant during proceedings in San Bernardino County Superior Court in case no.
CIVDS910718. (RJN Ex. 1.) Further, in 2021, Wilcox applied to the court to
vacate the prefiling order for the County of Placer. (RJN Ex. C.) The court
determined Wilcox had not made a sufficient showing of a material change in
facts or that the ends of justice would be served for the 2021 prefiling order
filed in Placer County Superior Court. (RJN Exs. D-E.) Thus, there are already at
least two pre-filing orders against Wilcox. Plaintiffs have failed to oppose or
explain why Wilcox did not seek a pre-filing order as required by section 391.7(b)-(c).
In order to proceed, Wilcox must apply to the presiding judge for permission to
file this action. Wilcox’s claims will be automatically dismissed unless he obtains
an order from the presiding judge permitting the filing of this litigation
within 10 days of notice of this ruling.
Plaintiff Cox
The Court is not inclined to find
that Cox is a vexatious litigant on the current record.
At worst, Defendants cite only two unsuccessful actions filed
by Cox in pro per: two abandoned appeals during the defense of the underlying
UD case (22SMUD01095). Even though the appeals were without merit, this is a far-cry
from the five failed actions required by section 391(a)(1).
There is some evidence of
repetitive litigation. Cox filed case no. 22SMCV01170 against Defendants as
well as United Protection Services for Breach of Contract, Harassment, and
False Police Report, based on the same facts as the case at hand. Plaintiff
dismissed the entire action without prejudice on July 21, 2023. Beyond that, the
record does not strongly suggest that these actions were without merit. As
discussed in the demurrer, there may be some merit to Cox’s breach of
contract cause alleged in both the prior action and this action. While this
action is substantially similar to the complaint in 22SMCV01170, the court
cannot yet conclude that neither this action nor 22SMCV01170 have no merit and were
solely intended for delay.
Accordingly, the motion is GRANTED
as to Wilcox and DENIED as to Cox.