Judge Mark E. Windham, Case Number: 21STLC07783, Date: 2024-02-28 Tentative Ruling

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Defendants Victor A. Velasquez and Melissa Vargas’ Motion for Order Requiring Plaintiff to Post Security Pursuant to CCP 391.1 as a Vexatious Litigant, or in the alternative, for an Order Dismissing the Consolidated Cases is DENIED.

On October 29, 2021, Plaintiff Alejandro Diaz (“Plaintiff”) filed the Complaint in this action against Defendants Victor A. Velasquez and Melissa Vargas (“Moving Defendants”), among others. The Complaint alleges a single violation of section 51 of the Unruh Civil Rights Act. (Compl., ¶7.)

The Court overruled Moving Defendants’ demurrer to the Complaint on February 16, 2022 and they filed an answer the next day. On May 23, 2023, Moving Defendants filed a notice of related case with respect to Diaz v. Velasquez, et al., LASC Case No. Case No. 23STLC01386 and a Motion to Consolidate Cases. The Court granted the Motion to Consolidate on August 2, 2023, designating this action as the lead action. (Minute Order, 08/02/23.)

Moving Defendants filed the instant Motion for Order Requiring Plaintiff to Post Security Pursuant to CCP 391.1 as a Vexatious Litigant, or in the alternative, for an Order Dismissing the Consolidated Cases on December 21, 2023. Plaintiff filed an opposition on December 28, 2023 and Moving Defendants replied on February 21, 2024.

Moving Defendants first move for an order requiring Plaintiff to post security pursuant to Code of Civil Procedure section 391.1, which states in relevant part:

In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that they will prevail in the litigation against the moving defendant.

(Code Civ. Proc., § 391.1, subd. (a).) The Motion is brought on the grounds that Plaintiff has admitted to being a vexatious litigant in the Complaint and has been so deemed by the court. (Notice, p. 2:3-7; Motion, p. 2:714.) The only evidence cited in support of this claim that that at paragraph 8, the Complaint alleges that “Plaintiff is a high-frequency litigant.” (Compl., ¶8.) Although the Motion claims there is an order deeming Plaintiff a vexatious litigant, Moving Defendants admit they cannot locate any such order. (Motion, p. 3:13-14.)

The Motion confuses “vexatious litigant” with “high-frequency litigant.” A high-frequency litigant is defined by Code of Civil Procedure section 425.55 to include “[a] plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.” (Code Civ. Code, § 425.55, subd. (b)(1).) There is no authority to indicate that high-frequency litigants are subject to the requirements of Code of Civil Procedure section 391.1 regarding vexatious litigants.

Moving Defendants only cite and analyze the language defining a vexatious litigant under Code of Civil Procedure section 391, subdivision (b)(1) in their reply. (Reply, pp. 2:17-3:2.) As this argument was not presented in the Motion, Plaintiff lacked notice and an opportunity to respond. The request for an order that Plaintiff post a security, therefore, is denied.

Moving Defendants alternatively move to dismiss the action under Code of Civil Procedure section 391.3, which states: “If, after hearing evidence on the motion, the court determines that the litigation has no merit and has been filed for the purposes of harassment or delay, the court shall order the litigation dismissed.” (Code Civ. Proc., § 391.3, subd. (b).) Again, this statute only applies upon a showing that the plaintiff is a vexatious litigant. (See Code Civ. Proc., § 391.1, subd. (a).) As there is no such showing by Moving Defendants in the moving papers, the request for dismissal of the action is also denied.