Judge: Robert S. Draper, Case: 20STLC01042, Date: 2022-07-25 Tentative Ruling

Case Number: 20STLC01042    Hearing Date: July 25, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Defendant Wal Mart Inc.’s Motion for an Order Declaring Plaintiff a Vexatious Litigant is GRANTED.

Defendant Wal Mart Inc.’s Motion for an Order Requiring Plaintiff to Post Security is GRANTED in an amount to be determined at hearing.  

FACTUAL BACKGROUND   

This is an action for breach of contract, negligence, and premises liability. The First Amended Complaint (“FAC”) alleges as follows. Plaintiff Nicole Jackson (“Plaintiff”) visited a Defendant WalMart Inc. (“WalMart”) store to make a purchase on February 2, 2018. (FAC ¶ 1.) Plaintiff’s credit card was declined, and Plaintiff left her items with the clerk and left the store several times to call the credit card company. (FAC ¶ 2.) Plaintiff was ultimately able to successfully make her purchase using her credit card. (FAC ¶ 2.) While exiting the store after making her purchase, WalMart security personnel grabbed Plaintiff’s shopping cart and refused to let go without Plaintiff showing a receipt. (FAC ¶ 3.) After a supervisor arrived, security let go of the cart and allowed Plaintiff to leave. (FAC ¶ 5.)

PROCEDURAL HISTORY

On February 3, 2020, Plaintiff filed the initial Complaint in the Limited Civil division asserting two causes of action:

1.    Breach of Contract;

2.    Negligence.

On January 14, 2021, Plaintiff filed the FAC asserting six causes of action and reclassifying to the Civil Unlimited division:

1.    Breach of Contract;

2.    Negligence;

3.    Violation of Civ. Code § 1714 – Negligent Hiring and Supervision;

4.    Premise Liability;

5.    Negligent Infliction of Emotional Distress; and

6.    Intentional Infliction of Emotional Distress.

On March 30, 2021, this case was reclassified to Civil Unlimited and reassigned to the instant Dept. 78.

On April 28, 2021, WalMart filed a Demurrer with Motion to Strike as to the First Amended Complaint.

On August 4, 2021, this Court sustained WalMart’s Demurrer with leave to amend as to the First through Fourth Causes of Action and Overruled the Demurrer as to the Fifth and Sixth Causes of Action. Additionally, this Court granted the Motion to Strike as to Plaintiff’s Prayer for Punitive Damages. Plaintiff has not filed a Second Amended Complaint.

On June 21, 2022, WalMart filed the instant Motion to Declare Vexatious Litigant.

On July 11, 2022, Plaintiff filed an Opposition.

On July 15, 2022, WalMart filed a Reply.

DISCUSSION 

                         I.     REQUEST FOR JUDICIAL NOTICE

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)  

Evidence Code Section 452 provides that judicial notice may be taken for facts and propositions that are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Cal. Evid. Code § 452(h).) Further, “a court may take judicial notice of [recorded documents and] the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.)  

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In addition, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.”  (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.) However, “[w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).) 

The party requesting judicial notice must (a) give each adverse party sufficient notice of the request to enable the adverse party to prepare to meet the request and (b) provide the court with sufficient information to enable it to take judicial notice of the matter. (Cal. Evid. Code § 453.) 

WalMart requests judicial notice of the following in support of its Motion:

1.    Nicole Y. Jackson v. Logan Property Management, et al., Los Angeles Superior Court Case No. BC590775; filed on August 7, 2015; dismissed on January 7, 2016.

2.    Nicole Y. Jackson v. Cudahy Inn, Inc., Los Angeles Superior Court Case No. BC598864; filed on October 26, 2015; dismissed with prejudice by the court on February 21, 2017.

3.    Nicole Y. Jackson v. California Grand Promenade, Inc., Los Angeles Superior Court Case No. BC624404; filed on June 17, 2016; dismissed on December 7, 2016, for Plaintiff’s failure to appear.

4.    Nicole Y. Jackson v. Slauson Atlantic Hotel, Los Angeles Superior Court Case No. BC625940; filed on July 5, 2016; dismissed on February 6, 2017, for non-appearance.

5.    Nicole Y. Jackson v. Mediscan, LLC, Los Angeles Superior Court Case No. 16K14759; filed on December 5, 2016; dismissed by the court on June 5, 2018 for Plaintiff’s failure to file a Proof of Service of Summons.

6.    Nicole Y. Jackson v. Logan Property Management, et al., Los Angeles Superior Court Case No. BC657202; filed on April 10, 2017; dismissed by the court on July 31, 2018, for Plaintiff’s failure to appear and failure to prosecute the case.

7.    Nicole Y. Jackson v. California Grand Promenade, Inc., Los Angeles Superior Court Case No. BC667682; filed on July 5, 2017; dismissed on March 27, 2018, following demurrer. Plaintiff’s appeal (B28970) fell into default and was dismissed by Remitter on March 25, 2019.

8.    Nicole Y. Jackson v. Aspire Public Schools, Los Angeles Superior Court Case No. BS170641; filed on August 29, 2017; dismissed on May 23, 2018, for Plaintiff’s failure to prosecute. Plaintiff’s appeal (B294962) dismissed by Remitter on May 15, 2019.

9.    Nicole Y. Jackson v. Cudahy Inn, Inc., Los Angeles Superior Court Case No. BC719288; filed on August 24, 2018; dismissed by the court pursuant to a successful vexatious litigant motion on October 1, 2019, after Plaintiff failed to post a bond.

10.                   Nicole Y. Jackson v. Logan Property Management, et al., Los Angeles Superior Court Case No. BC723699; filed on September 28, 2018; dismissed on September 23, 2019, following a demurrer sustained without leave to amend. On May 25, 2021, judgment was affirmed on appeal (B301787).

11.                   Nicole Y. Jackson v. Los Angeles County Metropolitan Transit Authority, Los Angeles Superior Court Case No. 20STLC06213; filed on July 22, 2020; dismissed with prejudice on July 22, 2021, following a demurrer sustained without leave to amend.

12.                   Nicole Jackson v. Los Angeles County Metropolitan Transit Authority, Los Angeles Superior Court Case No. 19STLC02275; filed on March 6, 2019. Dismissed on January 3, 2022.

13.                   A pre-filing order from Case No. BC719288; on October 1, 2019 (attached hereto), four (4) months before she filed the present action. This prefiling order required Plaintiff to seek leave of the Court before filing any new litigation in the State of California.

WalMart’s Requests for Judicial Notice are GRANTED.

                       II.          MOTION TO DECLARE A VEXATIOUS LITIGANT

WalMart moves the Court to declare Plaintiff a vexatious litigant.

Code of Civil Procedure Section 391 provides, in pertinent part:¿¿ 

“(b) ‘Vexatious litigant’ means 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.”¿¿ 

Section 391.7, subdivision (a) provides that “[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.”¿

“When considering a motion to declare a litigant vexatious, the court must weigh the evidence to decide whether the litigant is vexatious based on the statutory criteria and whether the litigant has a reasonable probability of prevailing.” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265)

Here, WalMart notes that Plaintiff has filed 31 lawsuits, all pro per, the vast majority of which have been dismissed. (Colbert Decl. ¶ 16.) Additionally, WalMart notes that three courts have previously declared Plainttiff a vexatious litigant. (Colbert Decl. ¶ 15.) Finally, WalMart contends that Plaintiff has filed numerous meritless motions in the instant action to delay proceedings. (Colbert Decl. ¶ 17.)

In Opposition, Plaintiff argues that the instant Motion is moot, as she has previously been declared a vexatious litigant. Additionally, Plaintiff notes that she has not filed any other suit against WalMart, and therefore argues WalMart cannot show that the instant action arises from “essentially the same facts, transaction, or occurrence” as any previous actions.

Plaintiff’s arguments are unavailing. First, that Plaintiff has previously been declared a vexatious litigant is indicative of, not contrary to, her standing as a vexatious litigant in the instant action. Second, while it is true that Plaintiff has not previously filed a similar action against WalMart, section 391 requires a defendant to show that the plaintiff in question has done “any of the following.” (Emphasis added.) Section 391(b)(1) states that any person who 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.”

As WalMart has shown, this is clearly the case here. That these cases have not been filed against WalMart does not preclude Plaintiff from vexatious litigant status.

Accordingly, WalMart’s Motion for an Order Declaring Plaintiff a Vexatious Litigant is GRANTED.

                     III.          SECURITY BOND

Next, WalMart moves the Court for an order requiring Plaintiff to post a security bond to proceed with the instant action.

Section 391.1 provides that a motion for order to furnish security a defendant must show “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.”  

Here, WalMart argues that most of Plaintiff’s causes of action have been dismissed via demurrer, and that for those that have not; Plaintiff’s causes for Negligent Infliction of Emotional Distress and Intentional Infliction of Emotional Distress; Plaintiff has not shown any facts supporting the causes or any facts demonstrating damages.

WalMart notes that in response to a discovery request, when WalMart asked for facts supporting her allegation that she was racially profiled in the incident in question, Plaintiff responded that she “did not have facts,” and instead relied on the history of WalMart’s racial practices.” (Colbert Decl ¶ 9.)

Additionally, the Court notes that in overruling Walmart’s demurrer to the NIED and IIED causes of action, this Court stated that the “allegations, in a vacuum, may not amount to sufficient extreme or outrageous conduct,” but that WalMart’s history of racial profiling made the claim “sufficient for purposes of demurrer.”

Here, absent further evidence of any racial profiling on the date of the incident in question, the Court cannot reasonably find that Plaintiff has a reasonable probability of prevailing in this action.

Accordingly, WalMart’s Motion for an Order Requiring Plaintiff to Post Security is GRANTED in an amount to be determined at hearing.

                    IV.          REQUEST FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Finally, the Court notes that in Plaintiff’s Opposition, Plaintiff requests leave to file an amended Complaint.

Plaintiff argues that the Court is obligated to grant such a request liberally. However, as WalMart notes, Plaintiff did not file a separately noticed motion under California Rules of Court rule 3.124. Additionally, Plaintiff states no facts which would place her in any different position than the position she is in this case or the multiple other cases where she has been declared a vexatious litigant. The request for leave to amend is DENIED.

DATED:  July 25, 2022

___________________________

Hon. Robert S. Draper 

Judge of the Superior Court