Judge Michelle Williams Court, Case 19STCV12599 2022-09-21 Tentative Ruling

Judge: Michelle Williams Court, Case: 19STCV12599, Date: 2022-09-21 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 74 before 8:30 the morning of the hearing. The email address is smcdept74@lacourt.org. Please do not call the court to submit on the tentative.

IF THE DEPARTMENT DOES NOT RECEIVE AN EMAIL INDICATING THE PARTIES ARE SUBMITTING ON THE TENTATIVE RULING AND THERE ARE NO APPEARANCES AT THE HEARING, THE MOTION WILL BE PLACED OFF CALENDAR.

If you decide not to submit on the tentative ruling, REMOTE APPEARANCES ARE AUTHORIZED AND STRONGLY ENCOURAGED. Please visit the court’s Here for You | Safe for You News Center for the latest orders governing court business. http://www.lacourt.org/newsmedia/ui/HfySfy.aspx

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind: The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record. Oral argument is not an opportunity to simply repeat that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated. If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

Case Number: 19STCV12599 Hearing Date: September 21, 2022 Dept: 74

19STCV12599 MR. BW vs DELL'AMORE LIMOUSINE INC

Defendant Los Angeles County Sheriff’s Department’s Motion to Declare Plaintiff to be a Vexatious Litigant Pursuant to Code of Civil Procedure Section 391.1

TENTATIVE RULING: Defendant Los Angeles County Sheriff’s Department’s Motion to Declare Plaintiff to be a Vexatious Litigant Pursuant to Code of Civil Procedure Section 391.1 is GRANTED.

Plaintiff is ordered to furnish security in the amount of $100,000.00 for the benefit of Defendant Los Angeles County Sheriff’s Department within 30 days.

The Court sets an Order to Show Cause re: Dismissal for Failure to Furnish Security for November 8, 2022 at 8:30 a.m. On the same date, the Court shall also hold a hearing on an Order to Show Cause re: Entry of Prefiling Order. Any response to this Order to Show Cause shall be filed no later than five court days before the hearing date. All other hearings on calendar today, with the exception of the motion, are also continued to November 8, 2022 at 8:30 a.m.

This action shall remain stayed. (Code Civ. Proc. § 391.6 (“when a motion pursuant to Section 391.1 is filed prior to trial the litigation is stayed, and the moving defendant need not plead, until 10 days after the motion shall have been denied, or if granted, until 10 days after the required security has been furnished and the moving defendant given written notice thereof.”).)

Background

On April 11, 2019, Plaintiff Mr. BW, “individually, on behalf of himself, the general public and on behalf of all other persons and class similarly situated” filed a complaint, in propria persona, filed this action against Dell’Amore Limousine, Inc., the Los Angeles County Sheriff’s Department, several other limousine companies, bail bonds companies, and individuals associated with the entity defendants and the Sheriff’s Department.

On April 11, 2022, Plaintiff, in propria persona, filed a First Amended Complaint with a caption page identifying 62 causes of action, requesting $100,000,000.00 in general damages, $300,000,000.00 in special damages, and $500,000,000.00 million in punitive damages, among other damages and relief. The Court understands this action to arise out of Plaintiff’s arrest on April 11, 2017.

On July 1, 2022, the Court stayed this action pending the outcome of Defendant’s motion discussed herein.

Motion

On June 24, 2022, Defendant Los Angeles County Sheriff’s Department filed the instant motion to declare Plaintiff Mr. BW, who has also filed actions as Mr. Williams, Briand Williams, Williams Briand, and Brian Williams a vexatious litigant and require Plaintiff to provide security to continue the instant litigation.

Opposition

On August 30, 2022, Plaintiff filed an eight-page document entitled “Plaintiff’s Notice of Opposition to Defendan[t]’s Vexatious Motion Filed by Defendants Counsel of Record Anita Susan Brenner, SBN #58741 with Memorandum of Points and Authorities; Declaration of Plaintiff Mr. BW in Support Thereof.”

On September 7, 2022, Plaintiff filed a ten-page document entitled “Plaintiff’s Notice of Amended Supplemental Pursuant to C.C.P. § 473(a)(1) in Opposition to Defendant Vexatious Motion Filed by Defendant’s Counsel of Record Anita Susan Brenner, SBN #58741 with Memorandum of Points and Authorities; Declaration of Plaintiff Mr. BW in Support Thereof.”

Plaintiff’s oppositions are non-responsive to Defendant’s motion and Defendant notes the oppositions are largely unattributed quotations from Wikipedia. (Reply at 2:1-10.) The declarations of Plaintiff filed in support of the oppositions do not contain any relevant substantive evidence or averments.

On September 14, 2022, Plaintiff filed a twenty-page document entitled “Plaintiff’s Notice of Objections, Plaintiff’s Notice of Reply and Plaintiff’s Notice of Amended Supplemental Pursuant to C.C.P. § 473(a)(1) in Opposition to Counsel of Record Anita S. Brenner, SBN #58741 Reply to Plaintiff’s Opposition in Regards to Defendant’s Vexatious Motion; Memorandum of Points and Authorities; Declaration of Plaintiff Mr. BW in Support Thereof.” There is no statutory basis for Plaintiff’s additional filing. All of Plaintiff’s documents to support any opposition were due on September 8, 2022. (Code Civ. Proc. § 1005(c).) Plaintiff is not entitled to file any documents in response to Defendant’s reply.

Additionally, Plaintiff’s further filing does not present evidence supporting his claims or sufficient legal argument as it primarily concerns Plaintiff’s habeas petitions. In finding Plaintiff a vexatious litigant, the Court relies upon Plaintiff’s civil filings, not his habeas petitions. (See In re Bittaker (1997) 55 Cal.App.4th 1004, 1011 (“if the Legislature had intended to include habeas corpus in its definition of ‘litigation’ in the vexatious litigant statute, it would not have limited that statute on its face to any ‘civil action or proceeding.’”).)

Reply

On August 31, 2022, Defendant filed its reply noting Plaintiff’s prior opposition was largely unattributed quotations from Wikipedia, identifying another dismissed action, and noting Plaintiff did not address his ability to prevail on the merits in this action.

On September 12, 2022, Defendant filed a sur-reply without leave of Court, supported by additional evidence. “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537. See also Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1089 (“New evidence is generally not permitted with reply papers.”).) The Court disregards the evidence provided in Defendant’s unsolicited sur-reply.

Judicial Notice

Defendant requests the Court take judicial notice of documents filed in various court cases involving Plaintiff and his asserted aliases. The requests are GRANTED. (Evid. Code § 452(d).)

Motion

Standard

Pursuant to Code of Civil Procedure section 391.1, “[i]n 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 he or she will prevail in the litigation against the moving defendant.”

“[I]f, 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.” (Code Civ. Proc., § 391.3(a).) “‘Security’ means 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(c).)

The statutory provisions define a vexatious litigant as a person who does any of the following:

(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.

(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.

(4) Has 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(a).)

“The vexatious litigant statutes (§§ 391–391.7) are designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants.” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169.)

Plaintiff is a Vexatious Litigant as Defined by Code of Civil Procedure section 391(a)(1)

Defendant identifies five Los Angeles Superior Court cases, filed in propria persona, that have been finally determined:

- Briand Williams vs Los Angeles County Sheriff's Department; LASC Case No. 19STCV21852 (filed on June 21, 2019) – dismissed without prejudice by court on August 5, 2020.

- Briand Williams vs State of California et al.; LASC Case No. 21STCV08181 (filed on March 1, 2021) – dismissed without prejudice by court on September 2, 2021.

- Briand Williams vs State of California; LASC Case No. 19STCV30378 (filed on August 28, 2019) - dismissed without prejudice by court on December 2, 2019.

- Mr. Williams v. Umilta Maria Wolfe; LASC Case No. 19STCV26833 (filed on August 1, 2019) – dismissed without prejudice by court on February 19, 2020.

- Williams Briand v. CVS Pharmacy, Inc., et. al., LASC Case No. 19STCV16225 (filed on May 9, 2019) – dismissed without prejudice by court on February 14, 2020.

Dismissals without prejudice, after expiration of the time to appeal, are considered final determinations for purposes of the vexatious litigant statutes. (See e.g. Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779.)

Defendant also identifies Briand Williams v. Los Angeles County Sheriff's Department, LASC Case No. 21STCV16669, which was dismissed by the Court without prejudice on September 23, 2021. However, the Court recently denied a motion to vacate the dismissal on September 1, 2022 and Plaintiff filed a motion for reconsideration on September 12, 2022, which is set for hearing on October 6, 2022. Accordingly, this case has not been finally determined against Plaintiff.

In this action, Plaintiff Mr. BW filed this action, in propria persona, listing his address as 2260 El Cajon Blvd. #145, San Diego, CA 92104.

In Briand Williams vs Los Angeles County Sheriff's Department, LASC Case No. 19STCV21852, the plaintiff filed the complaint, in propria persona, also listing his address as 2260 El Cajon Blvd. #145, San Diego, CA 92104. (Brenner Decl. Ex. 1.) In Briand Williams vs State of California et al.; LASC Case No. 21STCV08181 (Id. Ex. 5), and Briand Williams vs State of California; LASC Case No. 19STCV30378, (Id. Ex. 8), the plaintiff, in propria persona, used the same address as well.

In Mr. Williams v. Umilta Maria Wolfe, LASC Case No. 19STCV26833, the plaintiff filed the complaint, in propria persona, similarly listing his address as 2260 El Cajon Blvd. #145, San Diego, CA 92104. (Brenner Decl. Ex. 10.)

In Williams Briand v. CVS Pharmacy, Inc., et. al., LASC Case No. 19STCV16225, the plaintiff filed the complaint, in propria persona, also listing his address as 2260 El Cajon Blvd. #145, San Diego, CA 92104. (Brenner Decl. Ex. 27.)

In Williams Briand v. Kemper et. al., LASC Case No. 22STCV11153, the plaintiff filed the complaint, in propria persona, listing his address as 2802 Rosecrans Street, Unit #22, San Diego, California. (Brenner Decl. Ex 18.) Plaintiff Mr. BW in this action used the same address when filing the First Amended Complaint.

In Brian Williams v. Hillcrest Manor, LASC Case No. BC714309, the plaintiff filed the complaint, in propria persona, listing his address as 2260 El Cajon Blvd. #145, San Diego, CA 92104. (Brenner Decl. Ex. 37.) The addressed used by “Brian Williams” in connection with an appeal in that action is also 2802 Rosecrans Street, Unit #22, San Diego, California. (Id. Ex. 38.) Plaintiff Mr. BW inadvertently included the case number BC714309 on the “Proof of Service Filed Against Bail Hotline Bail Bonds, Inc. . . .” filed in this action on April 27, 2022. (Brenner Decl. Ex. 35 at 2.)

The complaints filed in this action, as well as those filed in BC714309, 19STCV26833, 19STCV16225, and 21STCV08181 contain numerous stylistic similarities and bear similar handwritten signatures. Finally, the First Amended Complaint filed by Plaintiff Mr. BW in this action alleges the incident occurred on April 11, 2017 and includes the following statement “never @ intersection of Alameda Street and El Segundo Blvd., Compton California 90222, as falsified on the Plaintiff’s booking papers.” (FAC ¶¶ 48-50.) Defendant provides evidence that “an individual by the name of Briand Williams was arrested on April 11, 2017 near the intersection of Alameda Street and El Segundo Boulevard.” (Torres Decl. ¶ 5, Ex. 31.)

There is substantial evidence that Plaintiff Mr. BW is the same person as Mr. Williams, Williams Briand, Briand Williams, and Brian Williams.

Accordingly, the Court finds Plaintiff is a vexatious litigant who has had five cases finally determined against him within the past seven years: 19STCV16225, 19STCV21852, 19STCV26833, 19STCV30378, and 21STCV08181. (Code Civ. Proc. § 391(a)(1).)

While they do not presently count toward the five in seven rule, the Court notes Plaintiff has several other cases currently pending or recently dismissed in the Los Angeles Superior Court, demonstrating Plaintiff’s persistent litigation in propria persona. The cases cited by Defendant include: 22STCV11153 Briand v. Kemper (dismissed on August 3, 2022), 20STCV25717 Briand v. The State Bar of California (currently pending), 21STCV06449 Briand v. CVS Pharmacy (currently pending), 20STCV29187 Mr. BW v. Wolfe (currently pending), Briand Williams v. Los Angeles County Sheriff's Department, LASC Case No. 21STCV16669 (dismissed on September 23, 2021 with motion for reconsideration scheduled).

Plaintiff is also a Vexatious Litigant as Defined by Code of Civil Procedure section 391(a)(3)

The Court briefly addresses Defendant’s assertion that Plaintiff is a vexatious litigant based upon other subsections of Section 391.

Defendant has not demonstrated Plaintiff “repeatedly relitigates or attempts to relitigate” the validity of determinations made or “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.” (Code Civ. Proc. § 391(a)(2).) Defendant cites one case against CVS that Plaintiff re-filed after a dismissal without prejudice. (Mot. at 8:1-9.) Defendant contends “[t]he pending case of MR. BW v. Umilta Maria Wolfe, et al., LASC Case No. 20STCV29187 . . . appears to be a landlord dispute an a relitigation of MR WILLIAMS v. Umilta Maria Wolfe; LASC Case No. 19STCV26833.” (Brenner Decl. Ex. 10, 11, 34.) However, Exhibit 34 is not the complaint in 20STCV29187, as Defendant contends. (Brenner Decl. ¶ 27, Ex. 34.) Moreover, 19STCV26833 was dismissed without prejudice. Defendant contends the Court “may wish to review” 22STCV11153 Briand v. Kemper and 20STCV25717 Briand v. State Bar of California. (Mot. at 8:10-13.) However, the cases were pending at the same time and do not appear to involve the same defendants. (Brenner Decl. Ex. 17-19 and 22-26.)

However, the Court finds Plaintiff Mr. BW a.k.a. Mr. Williams, a.k.a. Williams Briand, a.k.a. Briand Williams, a.k.a. Brian Williams, acting in propria persona, has repeatedly “file[d] unmeritorious motions, pleadings, or other papers . . . or engage[d] in other tactics that are frivolous or solely intended to cause unnecessary delay” and therefore is a vexatious litigant as defined by Code of Civil Procedure section 391(b)(3). Specifically, as seen above, Plaintiff has, on numerous occasions, filed a case and failed to appear and/or to prosecute it, leading to the case’s dismissal. Plaintiff’s complaints, filed under numerous aliases, are often brought on behalf of “the general public and on behalf of all other persons and class similarly situated,” without adequate basis, name a litany of defendants with limited factual allegations, and often seek hundreds of millions of dollars in damages without factual justification.

Plaintiff is Ordered to Furnish Security

Pursuant to Code of Civil Procedure section 391.1, “[t]he 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 he or she will prevail in the litigation against the moving defendant.”

As argued by Defendant, “[t]he only allegations against the County are that LASD arrested Plaintiff on April 11, 2017. There are no other allegations implicating the Sheriff’s Department.” (Mot. at 10:8-9.) Plaintiff’s caption to the First Amended Complaint asserts 62 causes of action, including employment and Labor Code claims that are inapplicable to Defendant who was not Plaintiff’s employer and common law claims that cannot be asserted against a public entity. (See e.g. Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897 (“there is no common law tort liability for public entities in California; instead, such liability must be based on statute.”).) The FAC alleges, “[o]n April 11, 2017, Plaintiff was bogusly Kidnapped and eventually ended up being sent to WASCO STATE PRISON.” (FAC ¶ 52.) Defendant provides evidence that Plaintiff was arrested on a no bail warrant. (Torres Decl. ¶ 5.) “[W]hen, as here, the police do obtain a warrant, that warrant is presumed valid.” (People v. Amador (2000) 24 Cal.4th 387, 393.) Plaintiff does not provide any evidence supporting his claims against the Sheriff’s Department. The Court finds there is no reasonable probability that Plaintiff will prevail in the litigation against Defendant Los Angeles County Sheriff’s Department.

“‘Security’ means 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(c).) Code of Civil Procedure section 1038 provides that a public entity may recover attorneys’ fees and costs in any civil proceeding under the Government Claims Act “if the defendant or cross-defendant has made a motion for summary judgment, judgment under Section 631.8, directed verdict, or nonsuit and the motion is granted” and “the proceeding was not brought in good faith and with reasonable cause.”

Defendant’s motion sought both $70,000.00 (Mot. at 11:12), and $100,000.00, (Mot. at 12:14-16), in security based upon the declaration of its counsel, Anita Brenner. Brenner states:

My reduced hourly rate for LASD is $180 per hour. We estimate attorneys’ fees a $25,000 to bring a motion for summary judgment. We estimate at least $5,000 in attorney time and court reporter/videographer expenses for Plaintiff’s deposition preparatory to bringing the motion for summary judgment. Authority exists for such an award in a case such as this. The costs of a summary judgment require some discovery. These costs would be recoverable if County prevails on summary judgment. (See Code Civ. Proc. §1038; Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 853.) If the case proceeds to trial and there is a directed verdict, the recoverable fees and costs by that time would exceed $75,000. Given the status of written discovery and the sheer number of defendants, we estimate this as a three-week trial. We would need to retain experts,

pay for court reporters, jury fees, as well as preparation of exhibit binders and trial notebooks. Expert fees alone could exceed $40,000.00.

(Brenner Decl. ¶¶ 5-6.) The declaration is sufficient. (See Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1587–1588 (“[T]he amount of security required was supported by an affidavit from an attorney in respondent's office based on discovery which appellant had filed in the action and her conduct in other litigation with respondent. This evidence is sufficient to support the amount of the security”) disapproved on other grounds in Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780.)

The Court finds security in the amount of $100,000.00 appropriate based upon the declaration provided.

Plaintiff is ordered to furnish security in the amount of $100,000.00 for the benefit of Defendant Los Angeles County Sheriff’s Department within 30 days. (Code Civ. Proc., § 391.3(a).) Failure to do so will result in the dismissal of Defendant Los Angeles County Sheriff’s Department. (Code Civ. Proc. § 391.4 (“When security that has been ordered furnished is not furnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished.”).)

The Court Shall Also Set an OSC re: Entry of a Prefiling Order

Pursuant to Code of Civil Procedure section 391.7(a), “[i]n 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.”

Defendant’s motion did not seek the entry of a prefiling order against Plaintiff. Based upon the evidence provided, the Court is inclined to enter a prefiling order pursuant to section 391.7(a).

Because Defendant did not seek this relief in its noticed motion, the Court shall, on its own motion, set an Order to Show Case re: Why Plaintiff Mr. BW a.k.a. Mr. Williams, a.k.a. Williams Briand, a.k.a. Briand Williams, a.k.a. Brian Williams should not be subject to a pre-filing order, which would prohibit the filing of any new civil litigation in the courts of this state, in propria persona, without first obtaining leave of the Presiding Judge or his or her designee in the court where the litigation is proposed.

Any response to this Order to Show Cause shall be filed no later than five court days before the hearing date.