Judge Mark E. Windham, Case Number: 18STCV10177, Date: 2024-01-17 Tentative Ruling

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Dai v. Paul P. Cheng & Associates, et al.

MOTION TO DECLARE VEXATIOUS LITIGANT

(CCP §§ 391, 391.3, & 391.7)

Plaintiff Young Chow Dai filed the operative Second Amended Complaint against Defendants Paul P. Cheng; Marsha S. Mao; Law Offices of Paul P. Cheng & Associates; and DOES 1-10, inclusive for (1) accounting and (2) fraud on October 4, 2019.

Defendant Paul P. Cheng (“Cheng”) filed the instant Motion to Declare Plaintiff Young Chow Dai a Vexatious Litigant on March 15, 2024. On April 5, 2024, Plaintiff filed an opposition. No reply has been filed as of date.

Code of Civil Procedure Section 391, subdivision (b), defines a “vexatious litigant” as a person who, “[a]fter a litigation has been finally determined against the person, 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…[i]n 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…[or] [h]as 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.” (Code Civ. Proc., § 391, subd. (b)(2)-(4).)“‘Litigation’ means any civil action or proceeding, commenced, maintained or pending in any state or federal court.” (Code Civ. Proc., § 391, subd. (a).) Cheng filed a Motion for Summary Judgment, which was subsequently granted on July 24, 2023. (Ex. 2, PPRC 10-21.) The Notice of Entry of Judgment or Order as to the Court’s ruling on the Motion for Summary Judgment was filed and served on the parties on August 4, 2023. (Ex. 2, PPRC 33-34.) Plaintiff filed three successive Motions to Vacate Judgment on August 7, 2023, August 25, 2023, and September 29, 2023 regarding the July 24, 2023 ruling. (Exs. 3-5, PPRC 10-21.) The court denied all three motions on January 17, 2024. (Ex. 6, PPRC 92-97.) The Court found that Code of Civil Procedure Section 663 did not permit authority to vacate a summary judgment and remit an action for trial as to the first motion to vacate. Furthermore, the Court found that Code of Civil Procedure Sections 473 and 473.5 did not provide legal authority to vacate summary judgment as to the second motion to vacate. Finally, the Court fund that the third motion to vacate cited no legal authority as a basis to vacate summary judgment. Plaintiff’s repeated motions and litigation are unmeritorious because they were procedurally defective, lacked support in the law, and lacked substantiated facts to sustain the action. Plaintiff’s motions constituted a relitigation of her case because she was seeking the exact same relief that has already been denied. Likewise, Plaintiff also filed a Motion for Reconsideration on January 23, 2024 that the Court denied on March 26, 2024. The Court found that the motion for reconsideration was neither coherent nor supported by the requisite declaration. The Court further found that which order Plaintiff was seeking reconsideration of was unclear. Lastly, the Court found that Plaintiff did not provide a supporting declaration that shows 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. In opposition, Plaintiff indicates that she was declared a vexatious litigant on April 5, 2024 by a Judge of the Los Angeles Superior Court and furnishes an Application to Vacate Pre-Filing Order. However, Plaintiff provides no evidence of such order being in place, does not specify which Judge purportedly issued the order, and makes no argument to support that her actions in this present action are not vexatious. The Court presumes Plaintiff is referencing Case No. 18STCV10154 with Honorable Commissioner Judge Latrice A.G. Byrdsong, where Cheng notes an Order to Show Cause Why Plaintiff should not be deemed a vexatious litigant was set for hearing on March 20, 2024 but again it is not clear from the opposition. Therefore, Plaintiff is determined to a vexatious litigant as defined by Code of Civil Procedure Section 391, subdivision (b).

“Except as provided in subdivision (b), if, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix.” (Id. § 391.3(a).) Plaintiff has not shown a reasonable probability that she will prevail in this litigation. The Court already found summary judgment in favor of Cheng. Furthermore, none of Plaintiff’s motions to vacate nor motion for reconsideration demonstrate any legal authority that permits revoking or vacating summary judgment as it currently stands in this matter. Therefore, Plaintiff is required to furnish bond or obtain further permission before filing motions of litigation.

“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. Disobedience of the order by a vexatious litigant may be punished as a contempt of court.” (Code Civ. Proc., § 391.7(a).) A pre-filing order is warranted in this case as discussed above. However, Cheng cites no authority that allows the court to direct the State Bar of California to include the Plaintiff in the State’s vexatious litigant list.

Defendant Paul P. Cheng’s Motion to Declare Plaintiff Young Chow Dai a Vexatious Litigant is GRANTED except as to an order directing Plaintiff be placed on State Bar’s Vexatious Litigant list.