Judge: Ronald F. Frank, Case: YC070538, Date: 2024-01-05 Tentative Ruling
Case Number: YC070538 Hearing Date: February 26, 2024 Dept: 8
Tentative Ruling¿¿
¿¿¿
HEARING DATE: February 26, 2024
¿¿¿
CASE NUMBER: YC070538
¿¿¿
CASE NAME: Fred Tucker; Zula
Tucker Living Trust v. PNC Bank N.A., et al.
¿¿¿ ¿¿¿
MOVING PARTY: Defendant, PNC Bank, N.A.
OPPOSING PARTY: Plaintiffs, Fred Tucker,
individually and as Trustee of the Zula Tucker Living Trust Dated September 15,
2006 (No Opposition)
TRIAL DATE: None; case is on appeal after granting of
dispositive motion
¿¿¿
MOTION:¿ (1) Motion for Order
Declaring Plaintiff a Vexatious Litigant
¿¿
Tentative Rulings: (1) ARGUE. Does Mr. Tucker meet the statutory definition
of a vexatious litigant when the litigation (Case #3) has not been finally
determined against him, and when the three different judges who denied his TRO
applications in Cases #4, 5, and 6 did not reach the merits? Further, is a determination in Nevada as to
vexatiousness regarding the litigation of property in Nevada the sort of
misconduct the Legislature had in mind under section 391(b)(4) when the moving party
seeks a vexatious litigant determination in California as to litigation as to
property located in California?
¿¿
I. BACKGROUND¿¿¿
¿¿¿
This motion was originally filed on November 8, 2023 by
Defendant, ONC Bank, N.A.. The original hearing on this motion was scheduled
for January 5, 2024, where this Court continued the hearing noting that an
amended motion as well as hard copies of the additional evidence supporting the
motions are due to be filed on or before January 19, 2024, and must be served
on Plaintiff via U.S. Mail. This Court further noted that oppositions to the
motion are to be filed by mid-February.
On January 19, 2024, Defendant filed an amended Motion
for Order Declaring Plaintiff a Vexatious Litigant and Entering a Prefiling
Order Prohibiting Plaintiff from filing any new litigation. To date, no
opposition has been filed.
II. JUDICIAL NOTICE
Filed concurrently with PNC’s Motion are three documents
of Requests for Judicial Notice. PNC has requested this Court to take Judicial
Notice of its Exhibits 32 through 37. The Court GRANTS PNC’s request and takes
judicial notice of all exhibits.
III. ANALYSIS¿¿
A. Legal Standard
Under the vexatious litigant statutes,
(CCP §§ 391-391.7), a defendant may move the court for an order requiring
plaintiff to furnish security on the ground that plaintiff is a vexatious
litigant and the litigation lacks merit. (Code Civ. Proc. §§ 391.1, 391.2.)
“In addition to any other relief provided
in [the vexatious litigants statutes], the court may, on its own motion or the
motion of any party, enter a pre-filing 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.” (Code
Civ. Proc. § 391.7.) A pre-filing order under Code of Civil Procedure section
391.7 may be made on the court’s own motion, without “pending litigation” as a
prerequisite. (See Bravo v. Ismaji (2002) 99 Cal.App.4th 211, 222, 223.)
Because being declared a vexatious
litigant limits access to the courts, “the Legislature has provided that,
before a plaintiff may be declared vexatious, he or she is entitled to a
noticed motion, and a hearing which includes the right to oral argument and the
presentation of evidence.” (Bravo v. Ismaj, supra, 99 Cal.App.4th at
225; see Code Civ. Proc. §§ 391.1, 391.2.)
The Vexatious Litigants Statutes provide
the following four alternate definitions of a “vexatious litigant”:
(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.
(4) Has 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.
(Code Civ. Proc. § 391(b).)
Plaintiff’s litigation conduct must fit
within one of these definitions; the court may not “mix and match” portions of
each definition. (Weil & Brown, Civ. Pro. Before Trial (TRG) ¶ 1:918
(citing Holcomb v. United States Bank Nat'l Ass'n (2005) 129 Cal.App.4th
1494, 1501).)
To satisfy the requirement that the
relitigating be “repeatedly” under Code of Civil Procedure section 391(b)(2),
plaintiff must have attempted such litigation of the same issue more than two
times. (Holcomb v. United States Bank Nat'l Ass'n (2005) 129 Cal.App.4th
1494, 1504.
What constitutes “repeated” and
“unmeritorious” filing under Code of Civil Procedure section 391(b)(3) is
generally within trial court's discretion. (See Morton v. Wagner
(2007) 156 Cal.App.4th 963, 971-972.)
B. Discussion
Previously,
this Court – in the tentative ruling for the January 5, 2024 hearing – noted
that it was unlikely, based on the information provided by PNC, that Plaintiff
could be found to be a vexatious litigant pursuant to Code of
Civil Procedure § 391(b)(2) or (3) when the litigation (Case #3) has not been
finally determined against him, and when the three different judges who denied
his TRO applications in Cases #4, 5, and 6 did not reach the merits.
Since this, PNC’s
amended motion includes a request for judicial notice of additional cases
including: (1) U.S. District Court, District of Nevada, Case No.
2:15-cv-00961-JAD-NJK; (2) Further information relating to Lawsuit #5 (LASC
Case No. 23LBCV01626); and (3) Bankruptcy Filings from the United States
Bankruptcy Court, Central District of California (Case No. 2:23-bk-18256-SK)
PNC moves on this
motion pursuant to Code of Civil Procedure section 391, and cites to Garcia
v. Lacey (2014) 231 Cal.App.4th 402, where the Fifth District Court of
Appeal noted that for purposes of section 391, “ [a] litigation is finally
determined adversely to a plaintiff if he does not win the action or proceeding
he began, including cases that are voluntarily dismissed by a plaintiff.” (Garcia,
supra, 231 Cal.App.4th at 406.)
Here, PNC
specifically moves on the basis of Code of Civil Procedure 391(b)(2), which
states: “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.” Based on this code section,
PNC argues that Lawsuit #1 and #2 qualify under this section. Although the
Court concedes that section 391(b)(2) does not preclude small claims cases like
section 391(b)(1) does, the issue of PNC’s involvement in the case raises an
issue.
In order for Lawsuits
1 and 2 to be included in description of section 391(b)(2), Plaintiff would
have to be relitigating the validity of the determination against a defendant
to whom the litigation was finally determined or possess same cause of action,
claim, controversy, or issues of fact/law determined or concluded by the final
determination against the same defendant or defendants as to whom the
litigation was finally determined. In Lawsuits 1 and 2, the Court dismissed the
actions without prejudice, and PNC concedes that it does not look like it was
even served with process in those cases. As such, even if this Court were to “count”
the dismissals, the determinations by the Court in Lawsuit 1 and 2 were not per
se dismissed in favor of PNC. The Court requests oral argument as to this
issue. A plain reading of the Code suggests that the determination (even if a
dismissal) must implicate the merits. If PNC was not even served and brought
into Lawsuits 1 and 2, then how would the Court’s final determination to
dismiss the small claims cases be a final determination in favor of Defendant?
Next, PNC also moves
pursuant to Code of Civil Procedure § 391(b)(3), which states that a vexatious
litigant can be someone who ““[i]n any litigation while acting in propria
person, repeatedly files unmeritorious motions, pleadings, or other papers” or
“engages in other tactics that are frivolous or solely intended to cause
unnecessary delay.” (Civ. Proc. Code §391(b)(3).) PNC argues that Plaintiff
meets both criteria under section 391(b)(3), noting lawsuits 3-6 have
repeatedly filed unmeritorious applications for TROs/preliminary injunctions
which have been denied. Additionally, PNC argues that Plaintiff has also
engaged in tactics that are frivolous and solely for the purpose of delating
the foreclosure of the subject property that went into default over eight years
ago. For example, in lawsuits 3 and 4, Plaintiff’s TROs/preliminary injunctions
were denied because Plaintiff had failed to meet his burden of proving a
substantial likelihood of success on the merits. Further, in lawsuit 5,
Plaintiff’s TRO was denied due to not providing service pursuant to the Code,
and the Court also there expressed that Plaintiff has failed to explain why he
waited to make an ex parte application in December when the notice of intent to
sell was issued in January.
PNC asserts that the
sheer number of unsuccessful ex parte applications for TROs and requests for
preliminary injunctions filed by Plaintiff in various courthouses across Los
Angeles County demonstrate that the filings were frivolous and brought solely
for the purpose of delaying the foreclosure of the Subject Property. The Court
finds this argument to be more persuasive.
Lastly, PNC contends
that it also moves pursuant to section 391(b)(4) which states that a vexatious
litigant can also be 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.” PNC has provided this Court with a United States District Court,
District of Nevada, in Tucker, et al. v. South Shore Villas Homeowners
Association, et al., United States District Court, District of Nevada, Case
No. 2:15-cv-00961-JAD-NJK, where the Court there declared Plaintiff a vexatious
litigant. In that action, PNC notes that the District Court issued a prefiling
order to prevent Plaintiff and any parties in privity with him from filing any
further litigation involving Plaintiff’s property in Nevada without prior court
approval. The Court finds this argument to be more persuasive, but seeks oral
argument as to whether a determination of vexatiousness in another state
regarding property in that other state is the sort of misconduct the
Legislature intended to support a determination in California as to suits concerning
a property located in California under section 391(b)(4).