Judge: Michael T. Smyth, Case: 37-2023-00029307-CL-CR-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024  09:00:00 AM  C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael T. Smyth

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Civil - Limited  Civil Rights Demurrer / Motion to Strike 37-2023-00029307-CL-CR-CTL JONES VS L & L HAWAIIAN BBQ [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 02/16/2024

Defendant Sudberry-Pardee/CMR #32 LTD's Demurrer is OVERRULED. Defendant's request for judicial notice is granted. (ROA 17.) The court agrees that Plaintiff is a high-frequency litigant and is required to pay the statutorily required fee under Government Code section 70616.5. On this occasion, because there is not yet clear precedent on the applicability of the fee waiver, the court will afford Plaintiff time to cure this error.

Plaintiff is to pay the $1,000 filing fee pursuant to Government Code section 70616.5 within 10 days or Plaintiff's complaint will be deemed void. (Gov. Code, § 68634(g) ['If the applicant does not pay on time, the clerk shall void the papers that were filed without payment of the court fees and costs.'].) Government Code section 70616.5(a) provides that '[i]n addition to [normal filing fees], a single high-frequency litigant fee shall be paid to the clerk on behalf of a plaintiff who is a high-frequency litigant, as that term is defined in Section 425.55 of the Code of Civil Procedure, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim[.]' The fee is $1,000.

(Gov. Code, § 70616.5(b).) 'Failure to pay the fees required by this section shall have the same effect as the failure to pay a filing fee, and shall be subject to the same enforcement and penalties.' (Id., § 70616.5(c).) Code of Civil Procedure section 425.55(b) defines a 'high-frequence litigant' as 'a person . . . who utilizes the court resources in actions arising from alleged construction-related access violations at such a high level that it is appropriate that additional safeguards apply so as to ensure that the claims are warranted' including 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.' Here, Plaintiff is undoubtedly a high-frequency litigant as defined by the Code of Civil Procedure with 58 other cases filed in the last 12 months and judicially noticed by this court. (See ROA 16, Mot. at 2-4; ROA 17 [RJN].) Although Plaintiff was granted a fee waiver, the fee waiver applies generally to 'filing papers in superior court.' (ROA 5 [Fee Waiver Order], p. 1; see also Cal. Rules of Court, rule 3.55(1).) That reference is to general filing fees, not to the 'single high-frequency litigant fee' required by Government Code section 70616.5. The fee waiver form and California Rules of Court carefully enumerate what fees are waived and nothing therein purports to waive an additional 'single high-frequency litigant fee.' Accordingly, the fee is required here. Any other result would be inconsistent with the clear purpose of the statute.

Even assuming the court agreed that the fee waiver covered the fees required by Government Code section 70616.5, it would exercise its authority under Government Code section 68636(b) to redetermine Plaintiff as ineligible for a fee waiver specifically with respect to the high-frequency litigant fee.

The court notes that despite Plaintiff's opposition papers being untimely, the court has considered them and rejected all the arguments therein.

Calendar No.: Event ID:  TENTATIVE RULINGS

3092398  3 CASE NUMBER: CASE TITLE:  JONES VS L & L HAWAIIAN BBQ [IMAGED]  37-2023-00029307-CL-CR-CTL Calendar No.: Event ID:  TENTATIVE RULINGS

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