Judge: Mark E. Windham, Case: 21STLC02672, Date: 2023-04-27 Tentative Ruling

Case Number: 21STLC02672    Hearing Date: April 10, 2024    Dept: 26

Xiaofu Zhang v. Long Beach Total Dental Care, et al. 

MOTION TO DECLARE VEXATIOUS LITIGANT

(CCP § 391 et seq.) 

TENTATIVE RULING:  

Defendants’ motion to deem Plaintiff a vexatious litigant is GRANTED.¿¿¿ 

The Court orders Plaintiff to post a security in the amount of $5,000 within 30 days of the date of this Order.¿(Code Civ. Proc., § 391.3, subd. (a).)¿

The Court further orders that Plaintiff is prohibited from filing any new litigation in the courts of the State of California in propria persona without first obtaining leave of the presiding judge or justice of the court where the litigation is proposed to be filed. (Code Civ. Proc., § 391.7, subd. (a).)¿ 

 ANALYSIS: 

Plaintiff Xiaofu Zhang (“Plaintiff”), in pro per, filed the instant action for dental malpractice against Defendants Ravinder Steven Singh, DDS (“Defendant Singh”) and Singh Dental Corporation dba Long Beach Total Dental Care (erroneously sued as Long Beach Total Dental Care) (“Defendant Singh Dental”) (collectively, Defendants”) on April 5, 2021. Defendants filed an Answer to the Complaint on October 12, 2021. The Court dismissed the action on December 20, 2022 and a judgment of dismissal was entered on December 27, 2022. (Judgment, 12/27/22.)  

On March 11, 2024, Defendants filed the instant Motion for an Order Declaring Plaintiff a Vexatious Litigant and for an Order Requiring Plaintiff to Post Security in Amount of $20,000.  No opposition has been filed by Plaintiff. Instead, Plaintiff requests the Court to extend hearing on Defendants’ motion to sometime in June and July 2024.

Discussion 

The vexatious litigant statute “provides a procedure in pending litigation for declaring a person a vexatious litigant, and establishes procedure strictures that can be imposed on vexatious litigants.” (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008.) A court may “issue a prefiling order that prohibits the vexatious litigant from filing any new litigation without first obtaining permission of the presiding judge of the court where the litigation is proposed to be filed.” (Id.) “The vexatious litigant statute . . . was enacted . . . to curb misuse of the court system by those acting in propria persona who repeatedly litigate the same issues.” (Id.) “Their abuse of the system not only wastes court time and resources but also prejudices other parties waiting their turn before the courts.” (Id.) “The prefiling order component of the vexatious litigant statute is a necessary method of curbing those for whom litigation has become a game.” (In re Natural Gas Antitrust Cases (2006) 137 Cal.App.4th 387, 394.) “It does not deny the vexatious litigant access to the courts, but operates to preclude meritless litigation and the attendant expenditure of resources.” (Id.)  

The definition of a vexatious litigant includes a person who:

(2) After 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. 

(3) 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.”

(Code Civ. Proc., § 391, subd. (b)(2) and (3).) “[T]he Legislature’s use of the adverb repeatedly refers to a past pattern or practice on the part of the litigant that carries the risk of repetition in the case at hand.” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1267.) If the court finds that plaintiff is a vexatious litigant and “has no reasonable probability of prevailing against the moving defendant,” the court “must order the plaintiff to furnish security” and “[i]f the plaintiff does not do so, the action will be terminated.” (Id. at 1265.) “[T]o find that a litigant is vexatious, the trial court must conclude that the litigant[‘]s actions are unreasonably impacting the objects of appellant’s actions and the court as contemplated by the statute.” (Id.) “As few as three motions might form the basis for a vexatious litigant designation where they all seek the exact same relief which has already been denied or all related to the same judgment.” (Id. at 1266.)

A trial court has discretion to determine whether a person is a vexatious litigant. (Singh v. Lipworth (2014) 227 Cal.App.4th 813, 828.) Papers in an action are deemed unmeritorious where they are procedurally deficient and are deemed frivolous where amendment would be futile. (Id.) Repeated filings to support a vexatious litigant determination “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 harass the adverse party than other litigants.” (Morton v. Wagner (2007) 156 Cal.App.4th 963, 972.)  

Defendants’ motion is made on the following grounds: (1) following an adverse determination of this litigation, Plaintiff has repeatedly relitigated or attempted to relitigate in propria persona the (i) validity of the determination against the same Defendants; and/or, (ii) the cause of action, claims, or any of the issues of fact or law determined by the final determination against the same Defendants as to whom the litigation was finally determined; and (2) Plaintiff has repeatedly submitted multiple unmeritorious papers and/or engaged in tactics that are frivolous and solely intended to cause unnecessary delay. At least seven incomprehensible Motions have been filed following entry of judgment on December 27, 2022.

Defendants submit evidence that following the entry of judgment on December 27, 2022, Plaintiff has filed, in pro per, at least seven moving papers with the Court. Specifically, on January 3, 2023, Plaintiff filed a Motion for Reconsideration[1]; on March 28, 2023, he filed a Motion to Vacate; on April 25, 2023, he filed moving papers entitled “Declaration on have not Received ‘Opposition by ‘Defendants’’ by April 24, 2020, Defendants Attorneys Willfully and intentionally Disabled Plaintiff in Seeking Justice and Damages While Misleading and Deceiving this Court and Honorable Judge”; on May 19, 2023, he submitted a document entitled “My Statement ‘The Termination and Dismissal of this Case based on Defendant’s Attorneys False Statement, Deception, False and Tampered Evidence, and Concealed Evidence is Prejudicial, Bias, and Unfair’”; on October 12, 2023, he filed a document that sought an order to vacate dismissal of his Complaint; on November 20, 2023, Plaintiff filed a document entitled "Plaintiff New Discovery and Application for a Court Order and Order Defendants and/or Their Attorneys to Produce Complete Medical Records Including Photos of X-Ray of My Teeth on January 16, 2016 and on April 18, 2020”; on December 15, 2023, he submitted a declaration entitled “Declaration of Damages by Defendants and Their Attorneys, Evidence of Damages”; and, on February 27, 2024, he filed a Notice of Appeal with this Court.  (Declaration of Irene Yousefi; ¶¶ 3-13; Exs. A-I.) 

Defendants argue that Plaintiff’s post judgment motions and documents presented no new facts, circumstances or law and were devoid of substance, thus serving no functional purpose.  (Motion p. 8.)  Also, Plaintiff asked the Court to vacate judgment on at least three occasions despite this Court no longer having jurisdiction to do so. (Id.)  Defendants also note Plaintiff repeatedly ignored this Court’s orders and pursued frivolous motions and filings, none of which were granted in his favor. (Id. at 9.) 

Based on Defendants’ arguments and in light of Plaintiff’s failure to oppose this motion, the Court finds that Plaintiff has no reasonable probability of prevailing against the Defendants in this action. Defendants have produced sufficient evidence in the form of the seven motions filed by Plaintiff following entry of judgment on December 27, 2022.

For purposes of the vexatious litigant statute, a security is “an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party’s reasonable expenses, including attorney’s fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.”¿(Code Civ. Proc., § 391, subd. (c).) Defendants request that the Court require Plaintiff to furnish security in the amount of $20,000 because of the approximate cost it will take for defending this matter if Plaintiff continues to file papers with the Court. (Yousefi Decl. ¶ 2.) The Court beleives $5,000 would be sufficient security. Defendants further request this Court issue a pre-filing order prohibiting Plaintiff from filing any new litigation in the Courts of the State of California without first obtaining leave where litigation is proposed to be filed.  This request is well-taken.

Conclusion 

Accordingly, the Court grants the Defendants’ motion to deem Plaintiff a vexatious litigant.¿¿¿ 

The Court orders Plaintiff to post a security in the amount of $5,000 within 30 days of the date of this Order.¿ (Code Civ. Proc., § 391.3, subd. (a).)¿

The Court further orders that Plaintiff is prohibited from filing any new litigation in the courts of the State of California in propria persona without first obtaining leave of the presiding judge or justice of the court where the litigation is proposed to be filed. (Code Civ. Proc., § 391.7, subd.¿(a).)¿ 

Moving party to give notice.