Judge: Michelle Williams Court, Case: TC015566, Date: 2024-03-06 Tentative Ruling

Case Number: TC015566    Hearing Date: March 6, 2024    Dept: 1

TC015566       JEHAN ZEB MIR, MD vs LAW OFFICES OF RUSHFELD, et al.

Plaintiff’s Unopposed Motion for Reconsideration of Order Denying Application to Vacate Prefiling Order

TENTATIVE RULING:  Mir’s Motion for Reconsideration of Order Denying Application to Vacate Prefiling Order 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 August 22, 2022, Judge David J. Cowan, then sitting in Department 1, issued a nine-page Court Order Re Request by Jehan Zeb Mir to Vacate Prefiling Order filed in Los Angeles Superior Court cases 21STCV27787, 21NWCV00424, 21STCV03643, and 20STCV17339. The order noted Department 1 is authorized to consider whether to vacate the 2002 prefiling order, but Mir must apply to the Administrative Presiding Justice of the Second District Court of Appeal to vacate the 2003 prefiling order. Department 1 denied Mir’s request to vacate the 2002 prefiling order.  

On December 1, 2023, Department 1 received a new Application for Order to Vacate Prefiling Order and Remove Plaintiff/Petitioner from Judicial Council Vexatious Litigant List from Mir dated October 10, 2023. The Court denied Mir’s application on December 27, 2023.

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’s Reliance Upon the Supremacy Clause and Federal Authority is Unpersuasive

Mir references the Supremacy Clause of the United States Constitution and relies upon Molski v. Evergreen Dynasty (9th Cir. 2007) 500 F.3d 1047, 1057 which cited the All Writs Act as the source of federal authority to impose a pre-filing order in federal court. (Mot. at 8:13-22, 14:9-16.) Mir also notes federal district courts had denied motions to declare him a vexatious litigant. (Ibid.)

Mir’s arguments are unpersuasive. In his initial Application to Vacate the Prefiling Order, Mir filed a memorandum of points and authorities citing Molski and arguing that his litigation in federal court cannot be judged under Code of Civil Procedure section 391(b)(1). Department 1 rejected this contention in its December 27, 2023 order and noted federal cases are expressly enumerated in Section 391(a): “‘Litigation’ means any civil action or proceeding, commenced, maintained or pending in any state or federal court.” Mir’s disagreement with this Court’s order is not a basis for reconsideration. (See e.g. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) Separately, Mir’s reliance upon the Supremacy Clause and federal authority lacks merit. “[A] state has the plenary power to provide the terms on which it will permit litigation in its court.” (Taliaferro v. Hoogs (1965) 236 Cal.App.2d 521, 526.) The California Code of Civil Procedure and California law govern Mir’s status as a vexatious litigant.

The Court’s Case Citations Do Not Warrant Reconsideration

Mir also contends “[t]he court cited several unpublished opinions in the US Court of Appeal, as well as unpublished opinions in the matter of Mir v Pomona Valley Hospital (B 148849)” in the December 27, 2023 order, which Mir argues is improper. (Mot. at 9:27-10:25.) There is no prohibition against the Court’s citation of unpublished federal cases. (See e.g. Raja Development Co., Inc. v. Napa Sanitary District (2022) 85 Cal.App.5th 85, 96 n.7 (“We may cite unpublished federal cases without violating the California Rules of Court.”); Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 251 n.6 (“ . . . the California Rules of Court do not prohibit citation to unpublished federal cases . . .”).) The Court cited Mir v. Pomona Valley Hospital, as well as the federal cases, for relevant background facts concerning Mir’s vexatious litigation and the prefiling orders entered against him. (Pacific Gas & Electric Co. v. City and County of San Francisco (2012) 206 Cal.App.4th 897, 907 fn. 10 ("We may also appropriately cite the decision to explain the factual background of the case and not as legal authority.”).) Whether the Court of Appeal opinion is published or unpublished, Mir is bound by the orders made therein as a party to the litigation. (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’s arguments based upon the Court’s citations lack merit and do not demonstrate a basis for reconsideration.

Mir further contends “[t]he court denied application to vacate prefiling order and found Applicant vexatious litigant under CCP: § 391. (b). . . . There is no finding by court if any of the appeals were unmeritorious.” (Mot. at 11:4-11.) Mir argues “[t]o find Applicant

vexatious litigant would require review of the complete underlying record in each case to find if the litigations were unmeritorious.” (Mot. at 11:14-24.)

These arguments are also unpersuasive. Mir has already been declared a vexatious litigant and is subject to the prefiling orders identified herein. The Court’s December 27, 2023 order noted Mir “continues to qualify as a vexatious litigant” under Code of Civil Procedure section 391(b)(1) and his “extensive federal litigation in propria persona similarly weighs in favor of denying Mir’s application [to vacate the prefiling order] as it ‘only confirms the very trait of character on which the determination of vexatious litigant was first based.’ (Luckett, [v. Panos (2008) 161 Cal.App.4th 77,] 92.).”

While Mir’s continued qualification as a vexatious litigant under Code of Civil Procedure section 391(b)(1) was not the sole basis for denying his application, Mir discusses his prior federal litigation cited in the Court’s December 27, 2023 order contending certain cases do not satisfy the statute. (Mot. at 11:25-14:1.) Mir contends “[i]n Mir v Kirchmeyer and Mir v Levine Mir was a defendant in the underlying licensing action.” (Mot. at 11:25-12:3.) However, Mir was the plaintiff in both cases. (Mir v. Kirchmeyer (2d Cir., Oct. 1, 2021, No. 20-1659) 2021 WL 4484916, at *1 (“Plaintiff-Appellant Jehan Zeb Mir”); Mir v. Levine (9th Cir. 2018) 745 Fed.Appx. 726, 727 (“Jehan Zeb Mir, M.D., appeals pro se from the district court’s summary judgment and dismissal order in his 42 U.S.C. § 1983 action.”).)

Mir similarly contends “Mir was a defendant in the underlying proceeding of improper debt collection” citing Mir v. Brown (10th Cir., May 25, 2021, No. 19-3232) 2021 WL 2099548. (Mot. at 12:4-8.) Mir was the plaintiff in this action as well. (Id. at *1 (“Jehan Zeb Mir, pro se, appeals the district court's order granting defendants’ motion to dismiss his complaint . . .”).) Mir cites no authority for his contention that a case decided against him on res judicata grounds cannot be considered under Code of Civil Procedure section 391. (Mot. at 12:18-21.) Repeated litigation, which is a condition precedent for the application of res judicata, is precisely the type of conduct the vexatious litigant statutes are meant to protect against.

Mir cites Mir v. State Farm Mutual Automobile Insurance Company (7th Cir. 2021) 847 Fed.Appx. 347 and contends “[t]he Court found that no federal court had jurisdiction over California uninsured motorist claim and jurisdiction rested in the California Superior Court” and therefore it does not satisfy Code of Civil Procedure section 391(b)(1) citing Fink v. Shemtov (2010) 180 Cal.App.4th 1160. (Mot. at 12:22-13:8.) In Fink, the court held “the summary denial of a writ petition does not necessarily constitute a litigation that has been ‘finally determined adversely to the person’ within the meaning of section 391, subdivision (b)(1).” (Fink, supra, 180 Cal.App.4th at 1172.) The appeal in Mir v. State Farm was neither a writ petition nor was it summarily denied. (Mir v. State Farm, supra, 847 Fed.Appx. at 348-349 (“The district court granted the defendants’ motion to dismiss. . . . The court then entered final judgment. . . . Mir first argues that the district court erred in dismissing his contract and extrinsic-fraud claims. . . .”).)

Furthermore, Mir suggests a court must find the prior litigations “unmeritorious,” under Code of Civil Procedure section 391(b), which therefore “require[s] review of the complete underlying record in each case.” (Mot. at 8:26, 11:3-14:25.) However, the statute requires that the prior litigation has been “finally determined adversely to the person,” which focuses solely upon the result of the litigation. (Code Civ. Proc. § 391.1(b)(1). See also Fink, supra, 180 Cal.App.4th at 1173-1174 (finding dismissals based upon an untimely notice of appeal a final determination of that litigation in a manner that was adverse to the litigant).)

Mir’s Other Arguments Do Not Demonstrate a Basis for Reconsideration

Mir contends “[t]he court incorrectly decided that the Court of Appeal must separately decide the same motion to vacate prefiling order.” (Mot. at 15:1-9.) Mir does not cite any authority in support of his argument. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 (“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”).) As noted above and in its December 27, 2023 order, Mir is subject to an expanded prefiling order entered in the Court of Appeal and must seek relief from that order in the Court of Appeal. (Code Civ. Proc. § 391.8(a) (“The application shall be filed in the court that entered the prefiling order . . .”).) Department 1 has made this determination on several occasions and Mir’s disagreement with the Court’s order is not a basis for reconsideration. (See e.g. Gilberd, supra, 32 Cal.App.4th at 1500.)

In its December 27, 2023 order, the Court noted Mir’s misstatement of Judge Cowan’s August 22, 2022 order. (December 27, 2023 Order at 9:8-13.) Specifically, Mir stated Judge Cowan had found there was a material change in the facts upon which the prefiling order was granted, but denied his application based upon a finding the ends of justice would not be served by vacating the prefiling order. However, Judge Cowan’s August 22, 2022 order found Mir failed to satisfy either requirement: “the Court rejects Mir’s argument that the absence of frivolous litigation is a ‘material change in the facts upon which the [prefiling] order was granted.’” (Aug. 22, 2022 Order in 21STCV27787 at 4.) Mir continues this misstatement in the instant motion. (Mot. at 2:10-16.) Mir further states in the instant motion that “[t]he four complaints 20STCV17339, 21STCV27787 21NWCV00424, and 21STCV03643 were not dismissed.” (Mot. at 3:11-12.) However, each of these cases were dismissed on September 13, 2022. When seeking to vacate a prefiling order, “[i]t goes without saying the applicant must show a propensity for honesty in his or her application.” (Luckett v. Panos (2008) 161 Cal.App.4th 77, 93.)

Finally, Mir contends the 2002 order “is void on several grounds.” (Mot. at 15:10-16:20.) Mir contends the order “has lost viability, vitality, and enforceability” because more than seven years have elapsed since the 2002 order. However, the passage of time alone is not sufficient to vacate a prefiling order. (Code Civ. Proc. § 391.8(a); Luckett, supra, 161 Cal.App.4th at 90 n.8 (noting a prefiling order “operates indefinitely into the future . . .”).)

Mir argues the order is void based upon res judicata “because three judges of the superior court had denied three separate motions to find Applicant vexatious litigant on the same litigations upon which the 11/13/2002 prefiling order was issued.” (Mot. at 15:18-22.) However, Mir’s contention that there was an error of law does not render an order void. (See e.g. Wells Fargo & Co. v. City and County of San Francisco (1944) 25 Cal.2d 37, 40 (“A mere erroneous decision on a question of law, even though the error appears on the face of the record, does not make the judgment void. . . .”).) Mir’s recourse was to timely appeal the November 13, 2002 order. (See e.g. In re Marriage of Rifkin and Carty (2015) 234 Cal. App. 4th 1339, 1347 (“by failing to pursue his appeal of the prefiling order, [the vexatious litigant] lost his right to challenge it.”).)

Mir reiterates his argument that “[a]n unpublished opinion is not a legal authority or an order.” (Mot. at 15:23-16:4.) As noted above, “ [t]he 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.” (Schmier, supra, 78 Cal.App.4th at 712.) Mir, as a party to Mir v. Pomona Valley Hospital, is bound by the orders made therein. Mir also restates his previously rejected argument that “[t]he Stanley Misk Court has no jurisdiction to decide Application to Vacate Prefiling Order pursuant to CCP § 391.8.” (Mot. at 4:6-26.) Mir’s disagreement with the Court’s order finding Department 1 is the proper department to rule on his application does not support reconsideration. (See e.g. Gilberd, supra, 32 Cal.App.4th at 1500.)

Mir has not demonstrated any basis for the Court to reconsider its prior order and Mir remains subject to the prefiling orders entered against him. (Code Civ. Proc. § 391.7(a) (“Disobedience of the [prefiling] order by a vexatious litigant may be punished as a contempt of court.).)

The motion is DENIED in its entirety.