Judge Michelle Williams Court, Case BC106174 2023-05-18 Tentative Ruling

Judge: Michelle Williams Court, Case: BC106174, Date: 2023-05-18 Tentative Ruling

Please notify Dept. 1’s courtroom staff by email (SMCDept1@lacourt.org) or by telephone (213-633-0601) no later than 8:30 a.m. the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. If you submit on the tentative, you must immediately notify the other side 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 motion. Please keep in mind that appearing at the hearing and simply repeating the arguments set forth in the papers is not a good use of the court’s time or the parties’ time.

Case Number: BC106174 Hearing Date: May 18, 2023 Dept: 1

BC106174 DAVID DELMAN vs PETER BLOWITZ

Plaintiff David Delman’s Motion to Vacate a Void Order, Dated 10/20/1994, Pursuant to C.C.P. § 473(d)

TENTATIVE RULING: The motion is DENIED.

Background of Delman’s Status as a Vexatious Litigant

On October 20, 1994, in an order amending a September 30, 1994 order nunc pro tunc, Judge Stephen E. O’Neil formally declared David Delman a vexatious litigant in Los Angeles Superior Court case BC106174 Delman v. Blowitz, et al. On July 10, 2014, Judge Michelle R. Rosenblatt in Los Angeles Superior Court case BC518877 Etame, et al. v. Copart Inc., et al., determined that Lori Wagner is the same person as David Delman and ordered that Wagner was subject to the same prefiling order requirement as Delman. Under these orders, Plaintiff became subject to a Code of Civil Procedure section 391.7 prefiling requirement that requires Plaintiff to obtain the permission of the presiding judge to file new litigation. Permission is granted only if it appears the litigation has merit and is not being filed for purposes of harassment or delay. (Code Civ. Proc. § 391.7(b).) In Los Angeles Superior Court, the Presiding Judge has designated the Supervising Judge of the Civil Division (sitting in Dept. 1) to exercise this authority and responsibility. (See Code Civ. Proc. 391.7(e).)

Plaintiff’s Prior Attempts to Vacate the October 20, 1994 Prefiling Order as Void

As stated in the July 12, 2018 order discussed herein, on August 10, 1995, Plaintiff filed an appeal of the underlying September 30, 1994 and October 20, 1994 orders, which appeal was dismissed on March 27, 1996 pursuant to Rule 17(a). (Court of Appeal case B095934; see Remittitur filed on June 4, 1996.)

On March 18, 2015, Judge Kevin C. Brazile, then sitting in Department 1, issued an order denying Plaintiff’s application to vacate the October 20, 1994 prefiling order. In that order, the court rejected arguments that Judge O’Neil’s order was void on its face, that Judge O’Neil lacked subject matter jurisdiction because the prefiling order violates the Full Faith and Credit Clause of the United States Constitution, and that the order impermissibly limited Plaintiff’s access to the courts. The court found Judge O’Neil had jurisdiction over the case, set forth the grounds for declaring Plaintiff a vexatious litigant, and made an order specifically provided for in the law by Code of Civil Procedure section 391.7. The court concluded “that this 20-year old order was not void on its face.” On May 14, 2015, Department 1 denied Plaintiff’s motion for reconsideration of the March 18, 2015 order.

On July 12, 2018, Judge Debre K. Weintraub, then sitting in Department 1, issued an order denying Plaintiff’s second request to vacate the October 20, 1994 prefiling order as void. In that order, the court once again rejected arguments that Judge O’Neil’s order was void on its face and violated the Full Faith and Credit Clause. The court also rejected Plaintiff’s argument that the federal court case was under appeal at the time of the October 20, 1994 prefiling order “and therefore it was not a ‘final determination’ upon which such order could be based especially considering Plaintiff in fact obtained a significant award from Merrill Lynch that disposed of that appeal,” that Plaintiff was not provided notice or an opportunity to be heard, and that the claims were unrelated to the claims in the federal case.

As stated in the January 3, 2019 order discussed herein, on August 1, 2018, Plaintiff filed an appeal of the July 12, 2018 (Court of Appeal case B291653), which concluded on August 30, 2018 when the Court of Appeal denied a prefiling order for the appeal. On September 4, 2018, Plaintiff filed another appeal (Court of Appeal case B292413), which concluded on September 6, 2018 when the Court of Appeal denied a prefiling order for the appeal. On September 10, 2018, Plaintiff filed another appeal (Court of Appeal case B292516), which concluded the same day when the Court of Appeal denied a prefiling order for the appeal. On September 18, 2018, Plaintiff filed another appeal (Court of Appeal case B292695), which concluded on October 4, 2018 when the Court of Appeal dismissed the appeal.

On January 3, 2019, Judge Samantha Jessner, then sitting in Department 1, denied Plaintiff’s third request to vacate the October 20, 1994 order as void. The court noted the motion was an untimely and improper motion for reconsideration of the court’s prior orders and there was “no basis to deviate from its long-standing determination that the October 20, 1994 order challenged by Mr. Delman is not void on its face.”

Discussion

On April 24, 2023, Plaintiff filed the instant motion, a fourth request to vacate the October 20, 1994 motion as void. Plaintiff does not seek to vacate the prefiling order pursuant to Code of Civil Procedure section 391.8. The Court hereby incorporates the March 18, 2015, July 12, 2018, and January 3, 2019 orders.

The Court finds Plaintiff’s fourth motion continues to be an improper renewal motion and motion for reconsideration of the court’s March 18, 2015, July 12, 2018, and January 3, 2019 orders, each of which rejected Plaintiff’s arguments that the October 20, 1994 order is void on its face. (Code Civ. Proc. § 1008.) “Section 1008 expressly applies to all renewed applications for orders the court has previously refused.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 840.) The statute applies to final orders as well as orders entered after judgment. (See Code Civ. Proc. § 1008(e) (“This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final.”); David S. Karton, a Law Corp. v. Musick, Peeler Garrett LLP (2022) 83 Cal.App.5th 1027, 1048 (“The statute is ‘exclusive and jurisdictional’ and applies ‘to interim and final orders alike.’”); In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1313 (“the fact that the order in this case was issued after judgment, and in that sense was ‘final,’ does not take it outside the ambit . . . of section 1008.”).)

Plaintiff contends Plaintiff “has unlimited times to file a Motion to Vacate a ‘Void on its Face’ Order as many times as Delman wants.” (Mot. at 10:23-25.) However, Plaintiff cannot repeatedly file motions to vacate the October 20, 1994 order as void on its face in pursuit of a different result. In Even Zohar, supra, 61 Cal.4th at 841, the Court construed the interaction between Code of Civil Procedure sections 473(b) and 1008 finding “section 1008 does not restrict initial applications for relief from default under section 473(b) in any way, nor does section 473(b) purport to authorize unlimited repetitions of the same motion.” The same is true of Code of Civil Procedure section 473(d). (See Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021 n.13 (“The rule allowing an aggrieved party to challenge an order void on its face at any time does not mean a party may perpetually move to vacate the order until he or she receives a favorable ruling. Somewhere along the line, litigation must cease.”) (quotation omitted).)

Plaintiff once again argues the October 20, 1994 order is void on its face making substantially similar arguments, including that the claims in this case were not related to the federal court claims, Plaintiff obtained an award from Merrill Lynch, Plaintiff was not provided an opportunity to be heard, the prefiling order overruled a federal court order, and the federal order was not a final determination. Plaintiff does not cite any law or fact that did not exist at the time of his prior motions and relies upon much of the same case authority cited in his prior motions, including Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, Bravo v. Ismaj (2002) 99 Cal.App.4th 211, Michel v. Williams (1936) 13 Cal.App.2d 198, County of Ventura v. Tillett (1982) 133 Cal. App. 3d 105, and Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228. Plaintiff’s repeated attempts to vacate the October 20, 1994 as void on its face is precisely the litigation conduct Code of Civil Procedure section 1008 serves to prevent. (Even Zohar, supra, 61 Cal.4th at 839–840 (“Section 1008’s purpose is to conserve judicial resources by constraining litigants who would endlessly bring the same motions over and over . . .”).)

Moreover, even if Plaintiff’s motion was not procedurally barred, the Court’s prior orders are equally applicable to the merits of Plaintiff’s motion here. The Court finds no basis to deviate from its long-standing determination that the October 20, 1994 order challenged by Plaintiff is final and not void on its face.

Conclusion

David Delman’s Motion to Vacate Void Order, Dated 10/20/1994 is DENIED. Clerk shall give notice.