Judge: Michelle Williams Court, Case: 23TRCV01019, Date: 2024-05-09 Tentative Ruling
Case Number: 23TRCV01019 Hearing Date: May 9, 2024 Dept: 1
23TRCV01019 JEHAN
ZEB MIR vs MAX JOSHUA MAGILNIK
Motion for Reconsideration of Order Denying Retroactive
Filing of Complaint
TENTATIVE RULING: The
Motion for Reconsideration of Order Denying Retroactive Filing of Complaint is
DENIED in its entirety. Clerk shall give
notice.
On November 13, 2002, Judge Josh
M. Fredricks formally declared Jehan Zeb Mir a vexatious litigant in Los
Angeles Superior Court case TC015566 Mir v. Law Office of Rushfeld, Shelley
& Drake, et al.
On February 24, 2003, Justice
Roger W. Boren formally declared Mir a vexatious litigant again in Court of
Appeal case B148849 Mir v. Pomona Valley Hospital Medical Center, et al.
Justice Boren’s prefiling order provided “[w]e order that henceforth Jehan Zeb
Mir may not file any litigation in the courts of this state in propria persona
or through an attorney without first obtaining leave of the presiding judge of
the court in which the litigation is proposed to be filed.” (Mir v. Pomona
Valley Hosp. Medical Center (Cal. Ct. App., Feb. 24, 2003, No. B148849)
2003 WL 403301, at *23.) Accordingly, Mir is required to obtain prefiling
permission for new litigation filed in propria persona or through an
attorney. (See also Mir v. Mercury Insurance Group (Cal. Ct. App., July
23, 2020, No. B286741) 2020 WL 4218171, at *1 (“Plaintiff Jehan Zeb Mir is a
vexatious litigant who is subject to a prefiling order under Code of Civil
Procedure 1 section 391.7, subdivision (a), that requires him to obtain
permission from the courts of this state before filing any new litigation as a
self-represented litigant or through counsel.”).)
On September 13, 2022, Department
1 issued orders dismissing 21NWCV00424 Mir v. State Farm Mutual Automobile
Insurance Company, et al, 21STCV03643 Mir v. McCoy-Thompson,
21STCV27787 Mir v. Goldman, et al, and 20STCV17339 Mir v. Surati Cash
& Carry, et al for failure to obtain prefiling permission from
Department 1 in violation of the expanded prefiling order entered against him.
On June 1, 2023, Department 1 denied Mir’s motions for reconsideration of each
of these orders. In the September 13, 2022 and June 1, 2023 orders, the Court
rejected Mir’s contentions that the expanded prefiling orders no longer
applied. Mir remains subject to the expanded prefiling orders requiring Mir to
obtain permission for all new litigation, whether in propria persona or
through an attorney.
On
December 1, 2023, Department 1 received an Application for Order to Vacate
Prefiling Order and Remove Plaintiff/Petitioner from Judicial Council Vexatious
Litigant List on Judicial Council Form VL-120 dated October 10, 2023 lodged by
Mir, in propria persona. In that application, Mir identified two new
unlimited civil complaints he had filed, through an attorney, without obtaining
prefiling permission in violation of the prefiling orders entered against him:
23TRCV01019 Mir. v. Magilnik and 23TRCV01125 Mir v. Valasedas. In
both cases, Mir became a self-represented litigant before the defendants made
their first appearance. Thus, Mir continues the practice that resulted in the
issuance of the expanded prefiling order. (Mir, supra, (Cal. Ct. App.,
Feb. 24, 2003, No. B148849) 2003 WL 403301, at *22 (“Even a casual look at the
massive pleadings filed by Mir indicates that he employs attorneys only as a
matter of tactics, principally, it appears, to avoid the application of section
391 et seq.”).)
“If
the clerk mistakenly files the litigation without the order, . . . the
presiding justice or
presiding
judge may direct the clerk to file and serve, on the plaintiff and other
parties a notice stating that the plaintiff is a vexatious litigant subject to
a prefiling order as set forth in subdivision (a). The filing of the notice
shall automatically stay the litigation. The litigation shall be automatically
dismissed unless the plaintiff within 10 days of the filing of that notice
obtains an order from the presiding justice or presiding judge permitting the
filing of the litigation as set forth in subdivision (b). If the presiding
justice or presiding judge issues an order permitting the filing, the stay of
the litigation shall remain in effect, and the defendants need not plead, until
10 days after the defendants are served with a copy of the order.” (Code Civ.
Proc. § 391.7(c).) The presiding judge has designated the supervising judge of
the civil division to exercise this authority and responsibility. (See Code
Civ. Proc. § 391.7(e).)
On
December 27, 2023, Department 1 filed an order constituting notice that Mir is
a vexatious litigant subject to an expanded prefiling order, as provided in
Code of Civil Procedure section 391.7(c), in 23TRCV01019.
On
January 24, 2024, Department 1 issued an order denying Mir’s request to
continue litigating 23TRCV01019 and dismissed the case without prejudice
pursuant to Code of Civil Procedure section 391.7(c).
Motion
On February 5, 2024, Mir filed
the instant motion seeking reconsideration of the court’s January 24, 2024
order.
The motion is unopposed. (Code
Civ. Proc. § 1005.)
Standard
“When an application for an
order has been made to a judge, or to a court, and refused in whole or in part,
or granted, or granted conditionally, or on terms, any party affected by the
order may, within 10 days after service upon the party of written notice of
entry of the order and based upon new or different facts, circumstances, or
law, make application to the same judge or court that made the order, to
reconsider the matter and modify, amend, or revoke the prior order. The party
making the application shall state by affidavit what application was made
before, when and to what judge, what order or decisions were made, and what new
or different facts, circumstances, or law are claimed to be shown. (Code Civ.
Proc. § 1008(a).)
Mir
Failed to Demonstrate Reconsideration is Warranted
Mir contends this Court was
disqualified on December 1, 2023 after it failed to rule on a peremptory
challenge under Code of Civil Procedure section 170.6. (Mot. at 5:5-27.) Mir’s
argument lacks merit.
Mir did not file a peremptory
challenge in this case, 23TRCV01019, on December 1, 2023. Mir filed a
peremptory challenge in 23TRCV01019 on January 4, 2024, which the Court deemed
untimely and not accepted on January 10, 2024.
The December 1, 2023 peremptory
challenge identified by Mir was filed in Los Angeles Superior Court case
TC015566 Mir v. Law Office of Rushfeld, Shelley & Drake, et al. (Mir
Decl. Ex. A.) The Court issued an order in TC015566 on December 5, 2023
providing “[t]he peremptory challenge filed on December 1, 2023 is not
accepted as there is no pending trial, no pending hearing involving a contested
issue of fact or law, and no all purpose assignment to the subject judicial
officer. Code Civ. Proc., § 170.6; see Grant v. Superior Court (2001) 90
Cal.App.4th 518.” Thus, Mir’s contention that the Court “never ruled” on this
challenge lacks merit.
Mir also reiterates his contention that the February 24,
2003 order from the Court of Appeal, imposing an expanded prefiling order upon
him, is unpublished and therefore not binding upon him. (Mot. at 6:2-10:4.)
However, the Court rejected this contention in its January 24, 2024 order.
Mir’s disagreement with the Court’s ruling is not a basis for reconsideration.
(Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) The publication of
the Court of Appeal’s opinion does not affect whether Mir, as a party thereto,
is bound by the orders made therein. (See generally Schmier v. Supreme Court
(2000) 78 Cal.App.4th 703, 712 (“The fact that opinions are not published in
the Official Reports means nothing more than that they cannot be cited as
precedent by other litigants who are not parties thereto.”).)
Mir also contends the February 24, 2003 prefiling order was
subsequently vacated, citing various orders wherein he was permitted to proceed
with counsel. (Mot. at 10:6-11:12) However, none of the orders provided by Mir
express an intent to vacate the prior prefiling order pursuant to Code of Civil
Procedure section 391.8, which is the exclusive statutory basis for such
relief. (Mir Decl. Ex. D-H.) Absent
language vacating the expanded prefiling order, the Court continues to reject
Mir’s argument that subsequent orders failing to hold Mir to its terms are
sufficient to render it inapplicable to Mir’s future litigation. As
noted herein, Mir remains subject to the expanded prefiling order entered on
February 24, 2003, as acknowledged by the Court of Appeal in 2020. (Mir, supra, (Cal. Ct. App., July 23, 2020, No. B286741)
2020 WL 4218171, at *1.)
Mir contends, without legal support, that the
prefiling order “lapsed after seven years.” (Mot. at 11:16-12:6.) A
litigant may be deemed a vexatious litigant for having “commenced, prosecuted,
or maintained in propria persona at least five litigations [within ‘the
immediately preceding seven-year period’] 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.” (Code Civ.
Proc. §§ 391(b)(1); 391.7.) However, a different standard applies to
applications to vacate a prefiling order and nothing in the statute can be
construed as mandating that the passage of time alone is sufficient. (Code Civ.
Proc. § 391.8.) Mir’s argument lacks merit. A prefiling order does not expire and is only subject to being vacated
pursuant to Code of Civil Procedure section 391.8. (See Luckett v. Panos (2008) 161 Cal.App.4th 77, 90 n.8.)
Mir contends the unpublished opinion “was without
jurisdiction” based upon the doctrine of res judicata. (Mot. at 12:8-14.) Mir
does not support this argument with any authority. (Moulton
Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215
(“Contentions are waived when a party fails to support them with reasoned
argument and citations to authority.”); Fenton
v. City of Delano (1984) 162 Cal.App.3d 400, 410 (“A point totally
unsupported by argument and authority may be rejected by the reviewing court
without discussion.”).) Moreover, “[r]es judicata is not a jurisdictional
defense . . .” (David v. Hermann (2005) 129 Cal.App.4th 672, 683.)
Mir also argues the complaint in
23TRCV01019, prepared by counsel, is “facially meritorious.” (Mot. at
12:16-13:9.) Mir made this same contention in his request for a retroactive
prefiling order, which the Court denied on January 24, 2024. Mir’s repeated
argument does not warrant reconsideration. As noted herein, Mir remains subject to the expanded
prefiling orders requiring Mir to obtain permission for all new litigation,
whether in propria persona or through an attorney.
Finally,
Mir contends “anti slapp motion does not apply to personal injury cases” and
the court “improperly conflated prefiling proceedings under CCP: § 391.7, with
anti-Slapp motion.” (Mot. at 13:11-14:15.) The Court did not apply Code of
Civil Procedure section 425.16 to Mir’s personal injury action. Rather, the
Court’s order raised the anti-slapp procedures as an analogy, to demonstrate
the burden of showing a case has merit is an evidentiary one, and one that Mir
did not meet. Mir’s attempt to provide a new declaration, unsupported by other
evidence and inaccurately dated, regarding the alleged accident cannot support
a request for reconsideration and is otherwise insufficient to meet his burden.
(Code Civ. Proc. § 2015.5, Code Civ. Proc. § 391.7; In re Marriage of Herr
(2009) 174 Cal.App.4th 1463, 1468 (“A motion for reconsideration must be based
on new or different facts, circumstances or law [citation], and facts of which
the party seeking reconsideration was aware at the time of the original ruling
are not ‘new or different.’”).)
The motion for reconsideration is DENIED.