Andre Luiz Costa Soares v. Jasmine A. Tehrani

CASE NO.:  20STCV42618 [FN 1]

MOTION TO DECLARE PLAINTIFF ANDRE LUIZ COSTA SOARES A VEXATIOUS LITIGANT

 

MOVING PARTY: Defendant Jasmine A. Tehrani

RESPONDING PARTY(S): Plaintiff Andre Luiz Costa Soares

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Andre Luiz Costa Soares (“Soares”), in pro per, brings the claim against Defendant Jasmine A. Tehrani, a psychologist, for alleged professional negligence.  Plaintiff alleges that Defendant incorrectly diagnosed him with schizophrenia and deemed him incompetent to represent himself in immigration proceedings.

Plaintiff has also filed a related case (22VECV01309) against Defendant Tehrani in which he alleges that Defendant defamed him by filing a police report following a death threat phone call that allegedly came from Plaintiff. 

Defendant now moves for an order (1) declaring Plaintiff a vexatious litigant, (2) prohibiting Plaintiff from filing any new litigations in pro per without first obtaining leave from the presiding judge, and (3) requiring Plaintiff to furnish security in the amount of $12,500. Plaintiff opposed.

TENTATIVE RULING:

Defendant’s motion to have Plaintiff declared a vexatious litigant is GRANTED.

Defendant’s request that the court enter a prefiling order is GRANTED.

Defendant’s request that Plaintiff be required to furnish security is GRANTED IN PART in the amount of $7,500.00.  If Plaintiff fails to adequately furnish said security within 60 days, this case will be dismissed, pursuant to CCP § 391.3 (b).

A Status Review Hearing is set for 9/29/23 at 8:30 a.m.  In the meantime, this case is stayed in its entirety pending that hearing.

DISCUSSION:

Motion to Declare Plaintiff a Vexatious Litigant, Furnish Security, and Enter a Prefiling Order

I. Judicial Notice

Pursuant to Defendant’s request, the court takes judicial notice of all of Defendant’s Exhibits except for Exhibits CC and DD. Neither police reports nor statements contained in such reports are subject to judicial notice. (See People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17 [“we decline to take judicial notice of the truth or accuracy of an entry in a police report, because such a report is reasonably subject to dispute”]

The court takes judicial notice of the other exhibits without assuming the truth of the assertions contained therein. (Evid. Code, § 452, subd. (h).)  (See Seelig v. Infinity Broad. Corp. (2002) 97 Cal. App. 4th 798, 808.)

II. Motion to Declare Plaintiff a Vexatious Litigant

The Code of Civil Procedure enumerates four distinct ways that a person may be deemed a vexatious litigant.  (See CCP § 391(b)(1)-(4).)  The court focuses on two.  

First, as relevant here, CCP § 391 subdivision (b)(1) defines a vexatious litigant as a person who “[i]n 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.”

Second, CCP § 391 subdivision (b)(4) defines a vexatious litigant as someone who “[h]as 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.”

Defendant argues that Plaintiff meets the definition of a vexatious litigant on one or both of these bases. The court discusses each of these arguments in turn.

A. Filing 5 or More Unsuccessful Litigations in a Seven-Year Period

First, as relevant here, CCP § 391 subdivision (b)(1) defines a vexatious litigant as a person who “[i]n 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.”  Under the statute, “litigation” is broadly defined to include “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” (CCP § 391(a).)

Defendant presents evidence that Plaintiff has filed at least twenty-one (21) civil actions in the last seven years, and that all of those cases that were either dismissed by the court or otherwise resolved against him. (See RJN Exhs. A-Z.) This court need not go further than address the first five exhibits in Defendant’s request for judicial notice, which conclusively demonstrate that Plaintiff has maintained at least five litigations in pro per in the last seven years, and all of which have been determined adversely to him. (CCP § 391 subdivision (b)(1).) Those five are as follows:

(1) Andre Luiz Costa Soares v. Discover Products Inc., filed on February 15, 2019, in the U.S. District Court (Central District of California Case No. 2:19-cv-00171). Dismissed on June 5, 2019. (See Chambers Order Dismissing Action, attached to the Declaration of Richard A. Wood as Exhibit A.)

(2) Andre Luiz Costa Soares v. Enhanced Recovery Co. LLC, filed on February 2, 2019, in the U.S. District Court (Central District of California Case No. 2:19-cv-01356). Dismissed on July 16, 2019. (See Court Order Granting Judgment for Failure to Prosecute, attached to the Declaration of Richard A. Wood as Exhibit B.)

(3) Andre Luiz Costa Soares v. J. Janecka, et. al., filed on February 10, 2020, in the U.S. District Court (Central District of California) Case No. 5:20-cv-00264. Dismissed on March 17, 2022. (See Memorandum Opinion and Order of Court Dismissing Complaint and Action, attached to the Declaration of Richard A. Wood as Exhibit C.)

(4) Andre Luiz Costa Soares v. Gil O. Montes, filed on October 14, 2020, in San Bernardino County Superior Court, Case No. CIVDS2020997. Dismissed on July 28, 2021. (See Court Order Re: Discovery Conference, Min. Order Dismissing Case without Prejudice, and Court Docket, attached to the Declaration of Richard A. Wood as Exhibit D.)

(5) Andre Luiz Costa Soares v. National Credit Systems and Avana Sunset Apartments, filed on June 22, 2021, in Los Angeles County Superior Court, Case No. 21STCV23241. Dismissed on February 15, 2022. (See Complaint, Court Order Re Case Management Conference, Court Order Re Case Management Conference, Order Dismissing Case without Prejudice, attached to the Declaration of Richard A. Wood as Exhibit E.)

Thus, the court finds that Plaintiff, “[i]n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations” in state or federal court, and that these litigations have been “finally determined adversely” to him by nature of the dismissals. [FN 2]

Thus, Plaintiff meets the statutory threshold of a vexatious litigant under section § 391, subdivision (b)(1).

Accordingly, Defendant’s motion to declare Plaintiff a vexatious litigation is GRANTED on this ground alone.

B. Previously Declared a Vexatious Litigant

Finding that Plaintiff has met the five-count numerical threshold under section 391(b)(1), the court continues for discussion purposes only.  Defendant also argues that Plaintiff is a vexatious litigant under section 391 subdivision (b)(4).  This section provides a vexatious litigant is someone who “[h]as 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.” (CCP § 391(b)(4).)

Defendant presents evidence that Judge Terry Hatter of the United States District Court for the Central District of California has already declared Plaintiff a vexatious litigant. (See Andre Luiz Costa Soares v. U.S. Department of Homeland Security, U.S. District Court (Central District of California) Case No. CV 22-7337, RJN, Exh. V.) The Court stated in its order that it “reviewed the Report and Recommendation of United States Magistrate Judge re Respondent's Request that [Plaintiff] Be Deemed a Vexatious Litigant,” and “accept[ed] and adopt[ed] the findings, conclusions and recommendations of the Magistrate Judge.” (Id.) The Court therefore ordered that “Andre Luiz Costa Soares [be] deemed a vexatious litigant.” (Id.)

Judge Hatter’s order declaring Plaintiff a vexatious litigant apparently arose after Plaintiff filed numerous actions in Federal Court asserting he is a citizen of the United States, and therefore, should not be deported by the Department of Homeland Security. Defendant contends that the cases now pending between this court “are based upon substantially similar facts, transactions, or occurrences as these federal Homeland Security cases.” (Mtn. 18: 4-6.) 

Defendant Tehrani’s only involvement with Mr. Soares—which gave rise to the cases against her here—is that she was appointed to assess Soares’ mental competency for purposes of his U.S. Immigration Court case. (See Declaration of Jasmine Tehrani, Ph.D., ¶ 2, 6.) Plaintiff alleges in case no. 20STCV42618 that Defendant committed professional negligence in finding him incapable of representing himself. 

After appearing in this case, on the evening of January 18, 2022, Defendant Tehrani received a phone call on her personal cell phone from a blocked number. (Tehrani Decl. ¶ 11.) The caller stated: “Jasmine Tehrani, I don’t know what you’re thinking, but you’re going to die, bitch.” (Id. ¶ 11.) The person did not identify himself, but Tehrani recognized the male voice as Plaintiff’s. (Id.)

Tehrani, understandably, took this to be a threat against her life. (Id.) She therefore contacted the LAPD and filed a complaint. (Id. ¶ 12.) Following an investigation, Costa-Soares was charged with making a threatening telephone call. That criminal court proceeding is still pending. 

In response, Plaintiff filed his second action against Defendant, 22VECV01309, alleging Tehrani defamed him by making the police report. This court found the two cases related on January 10, 2023. 

Here, the court finds that the instant case against Tehrani are based on the “same or substantially similar facts, transaction, or occurrence” upon which Judge Hatter based his vexatious litigant finding. (CCP § 391(b)(4).) The federal case and this case share a common starting point: Plaintiff’s immigration court proceedings. The issues in all are inextricably linked, as it was those immigration proceedings that linked Defendant to Plaintiff and gave rise to the claims at issue here.

This conclusion is supported by the legislative purpose of the statute. Indeed, the “critical finding” is whether the litigant’s action “are unreasonably impacting the objects of [opposing party’s] actions and the courts as contemplated by the statute.” (In re Kinney (2011) 201 Cal. App. 4th 951, 958.) Here, this finding is met. “The purpose of the [vexatious litigant statute] is to deal with the problem created by the persistent and obsessive litigant who has constantly pending a number of groundless actions, often against the judges and other court officers who decided, or were concerned in the decision of previous actions adversely to him.”  (First W. Dev. Corp. v. Superior Ct. (1989) 212 Cal. App. 3d 860, 867–68.)

Where, as here, Plaintiff continues to “harass the other party, to postpone the result, or simply to satisfy some urge to engage in litigation[,]…[t]he court cannot permit such litigation to continue without offering the protection provided in the vexatious litigant statutes.”  (First W. Dev. Corp., supra, 212 Cal. App. 3d at 870.) 

Thus, Plaintiff also meets the statutory threshold of a vexatious litigant under section § 391, subdivision (b)(4).

Accordingly, Defendant’s motion to declare Plaintiff a vexatious litigation is GRANTED on this separate and independent ground as well.

III. Prefiling Order

Defendant asks the court to enter a prefiling order requiring that Plaintiff obtain permission from the presiding judge to file new litigation. Under CCP section 391.7(a), the court may enter a prefiling order against a vexatious litigant. A prefiling order prohibits the vexatious litigant from filing “new litigation” in propria persona without first obtaining permission from the presiding judge or presiding judge’s designee. 

Here, the court finds that Plaintiff meets the statutory definition of a vexatious litigant under section 391(b)(1) and/or (b)(4).  Accordingly, Defendant’s request that the court enter a prefiling order is GRANTED.

IV. Requirement to Furnish Security

Defendant also requests that Plaintiff be required to furnish security. In support, CCP section 391.1(a) provides:

In 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 they will prevail in the litigation against the moving defendant.

Thus, “[i]n pending litigation, a defendant may have the plaintiff declared a vexatious litigant and, if the plaintiff has no reasonable probability of prevailing, ordered to furnish security. If the plaintiff fails to furnish the security, the action will be dismissed.” (Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1171 [citing §§ 391.1–391.6].) Section 391.7—under which a “defendant may prevent the vexatious litigant plaintiff from filing any new litigation in propria persona by obtaining a prefiling order”— “did not displace the remedy provided in section[] 391.1.” (Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1170 [citing § 391.7, subd. (a)].)

In moving for an order requiring a vexatious litigant to post security, the defendant has the burden of showing there is no reasonable likelihood plaintiff will prevail in the action. (Golin v. Allenby (2010) 190 Cal.App.4th 616, 640, 642.) “A court's decision that a vexatious litigant does not have a reasonable chance of success in the action is based on an evaluative judgment in which the court weighs the evidence.” (Id. at 636.)

As an initial note, Defendant refers to the two cases against her as “consolidated.” (Mtn. 4: 10.) The cases, however, are related, but not consolidated. (See January 10, 2023, Minute Order.) No party has moved to consolidate the cases. 

Thus, the court focuses its analysis on the case in which this motion was filed, Case No. 20STCV42618. [FN 3]  In this case, Plaintiff alleges professional negligence against Defendant. The FAC alleges that Defendant, a psychologist, gave Plaintiff a psychiatric exam pursuant to the order of an immigration judge.  (FAC ¶¶ 5, 6.)  Defendant found Plaintiff was “schizophrenic and incompetent to represent himself in Immigration proceedings.”  (Id. ¶ 8.) 

As a result of the diagnosis, Plaintiff “had to wait months until he had an attorney appointed to take care of his case -which delayed his case and extended his time in detention center.”  (Id. ¶ 10.)  Plaintiff alleges Defendant’s diagnosis caused him “emotional distress,” “medical expenses to have new evaluations showing he is not schizophrenic,” “mental and emotional sorrow and anguish,” “permanent physical injuries during the time he was detained in a facility he was not supposed to be,” and “other damages.”  (Id. ¶ 22.)  

To state a cause of action for professional negligence, a party must show “(1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.” (Giacometti v. Aulla, LLC (2010) 187 Cal. App. 4th 1133, 1137.)

In her motion, Defendant contends it is “highly likely” that she will prevail in the action. (Mtn. 18: 28.) This Court couldn’t agree more.  First, Defendant presents evidence that Immigration Judge Amy Lee referred Plaintiff to her for evaluation, as Judge Lee noted that Plaintiff was “erratic and aggressive” and had made statements alarming to a reasonable observer. (Tehrani Decl. ¶ 2(a)-(h).) 

Plaintiff’s evaluation occurred on November 6, 2019. (Id. ¶ 3.) Prior to the evaluation, deportation officers “placed the respondent in a holding cell away from other detainees because he had become ‘combative’.” (Id.) During the evaluation, Defendant obtained “substantial data upon which to arrive at opinions regarding his competency to represent himself in his immigration proceedings.” (Id.) During the interview, Mr. Costa-Soares remained “very angry,” “highly agitated,” “showed tangential thought processes with paranoid delusional content,”  “continually ranted that he was in custody for the presiding judge’s own personal gain,” and “expressed conspiratorial beliefs.” (Id. ¶ 5.)

On these observations and with the Immigration Judge’s referral notes, Defendant “concluded that [Plaintiff] suffered from a severe psychotic illness (schizophrenia) and, as a result, he was not competent to participate in his immigration proceedings directly.” (Id. ¶ 6.)

Defendant presents evidence that another expert psychologist, Alexandra C. Linscott, Ph.D., performed an assessment of Plaintiff on February 19, 2021 and concluded that he suffers from a “major mood disorder, Bipolar I Disorder, most recent episode manic with psychotic features.” (See Declaration of Richard A. Wood, Exhibit HH.) Defendant asserts these conclusions are “similar to those reached by Dr. Tehrani in her forensic mental status report which forms the basis for the plaintiff’s initial lawsuit for professional negligence against Dr. Tehrani.” (Mtn. 9: 5-7.) 

Plaintiff fails to counter this corroborating evidence with his own competent evidence. Thus, at the very least, Defendant has established that Plaintiff cannot meet an essential element of his claim for professional negligence, namely, breach of a duty. 

Accordingly, the request that Plaintiff be required to furnish security is GRANTED.

The amount of security in the instant action is set as $7,500.00.  If Plaintiff fails to adequately furnish said security within 60 days, this case will be dismissed, pursuant to CCP § 391.3 (b).

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated:   July 20, 2023 ___________________________________