Judge: Mark H. Epstein, Case: 24SMCV02107, Date: 2024-08-21 Tentative Ruling

Case Number: 24SMCV02107    Hearing Date: August 21, 2024    Dept: I

The motion to strike is moot due to the filing of the First Amended Complaint, and it has been withdrawn.  There will be no hearing on it today.

The motion to declare plaintiff a vexatious litigant is still pending.  The motion is DENIED.  Pursuant to the statute, a plaintiff can be declared vexatious if, over the last seven years, the plaintiff, while self-represented, has maintained five or more actions that have been resolved against the plaintiff or were pending for over two years without justification.  Plaintiff contends that such has not been shown.  A few things.  Whether a voluntary dismissal counts as one of the five depends.  For example, parties often reach a settlement that results in a dismissal—usually with prejudice but not always.  A favorable (to plaintiff) settlement is hardly what the Legislature had in mind for a vexatious litigant.  Further, while there have been some cases that were pending for over two years, the key to that statute is that they were pending for that period without justification.  Right now, by the time a case gets to trial in this department it will almost certainly have been pending for over two years.  That is in part a result of regular litigation and in part a result of the court’s crowded docket. 

What the defense needs to show is that the dismissals of the cases were such that there was little or no relief to the plaintiff in return for the dismissal.  A voluntary dismissal in the teeth of a judgment of dismissal would count.  A dismissal by way of settlement might not.  If the settlement was nominal (like a cost waiver), then it might still count.  But the court has no way of knowing and it is up to the defense to so establish.  As to cases pending for over two years, it is up to the defense to show that there was no justification.  That might occur, perhaps, by way of a docket showing demonstrating that the complaint was never served, or that it was served but no one sought to bring it to trial, or that a trial date was set but continued on plaintiff’s request without sufficient cause.  There are any number of ways it can be shown.  But this court will not assume that any case pending for more than two years has been unjustifiably delayed by the plaintiff.

In short, defendant has failed to meet his burden.  The motion is therefore DENIED.