Judge: Stephen P. Pfahler, Case: 22CHCV00734, Date: 2023-08-17 Tentative Ruling

Case Number: 22CHCV00734    Hearing Date: December 12, 2023    Dept: F49

Dept. F-49 

Date: 12-12-23 c/f 9-12-23

Case # 22CHCV00734  

Trial Date: Not Set

SUPPLEMENTAL HEARING ON BOND FOR VEXATIOUS LITIGANT ORDER

MOVING PARTY: Defendants, Nasch Properties, et al.

RESPONDING PARTY: Ashlie Anderson, Pro Per

RELIEF REQUESTED 

Supplemental Briefing for Determination of Bond Amount on Vexatious Litigant Order as to Ashely Anderson

SUMMARY OF ACTION 

Plaintiffs Michael Perry and Ashley Anderson reside in an apartment building owned and/or managed by Defendant Nasch Properties, LLC. The assigned property manager on the premises is identified as defendant Charly Taylor.

On May 7, 2022, Anderson alleges a co-tenant in the building, defendant Stanley Nathanson, committed a sexual assault and attempted within the apartment building laundry room common area. Plaintiffs submitted a complaint with property manager Taylor, but allege defendant landlords refused to conduct any independent investigation and/or seek eviction of Nathanson. Instead, on August 17, 2022, Plaintiffs were served with a three day notice to quit. Plaintiffs additionally allege the interruption of “essential services,” such as hot water.

On September 7, 2022, Plaintiffs, in pro per, filed their complaint for “stay of unlawful detainer, restitution, civil penalties, preliminary and permanent injunction, and other equitable relief Business & Professions Code [section] 17200.” The 18 individual causes of action are listed as Sexual Harassment in Violation of California Civil Code section 51.9; Sexual Assault and Harassment … in Violation of California Civil Code section 51.9; Color, Race and Sex-Based Discrimination Based on Status as Sexual Assault Victim; Violation of RALPH Act California Civil Code section 51.7; Interference with Exercise of Civil Rights in Violation of Bane Act, California Civil Code section 52.1, Retaliation; Discrimination prohibited by the 14^th Amendment; Breach of Duty to Protect Tenants from Foreseeable Crimes; Strict Liability under Special Relationship Doctrine; Gender Violence; Negligent Infliction of Emotional Distress; Negligence and Failure to Disclose Tenants Criminal Propensities; Negligent Refusal of Landlord to Investigate and Screen Prospective Tenants; Intentional Infliction of Emotional Distress; Unfair Competition under Business and Professions Code section 17200; Defamation; Breach of Contract; and, Claim for Declaratory and Injunctive Relief.

On October 24, 2022, the court denied the ex parte application to stay the pending unlawful detainer case in Department 44. The court also denied the ex parte order for a restraining order.

On January 26, 2023, the court granted the motion to dismiss Michel Perry from the lawsuit, due to the failure to obtain leave to file the subject complaint as a designated vexatious litigant. The court also sustained the demurrer of Nasch Properties, LLC with 30 days leave to amend.

Plaintiffs filed a notice of appeal on the order dismissing Perry on February 8, 2023.

The first amended complaint was late filed on March 20, 2023.

RULING: Granted.

On August 17, 2023, the court found plaintiff Anderson a vexatious litigant and ordered the posting of a security reflective of the potential damages to defendants if the action continues. (Code Civ. Proc., § 391.3, subd. (a); Muller v. Tanner (1969) 2 Cal.App.3d 445, 452 [“the amount of the security is defined as the moving party's ‘reasonable expenses, including attorney's fees and not limited to taxable costs, incurred in, or in connection with’ the litigation”].) The court requested supplemental briefing in order to determine the amount of fees and costs in order to determine the undertaking amount due.

On August 18, 2023, both Perry and Anderson filed a notice of appeal with a requested “notice of stay” on the August 17, 2023, motion for attorney fees against Perry and the motion to deem Anderson a vexatious litigant. The “perfecting” of an appeal imposes an automatic stay on the case on “matters embraced therein…but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a).)

The motion for attorney as to Perry in no way embraces the subject matter of the vexatious litigant order exclusively applicable to Anderson. As to Anderson, the appeal itself challenges the order designating Anderson a vexatious litigant and setting the hearing for bond amount determination. Given both the bond remains integral to the actual order deeming Anderson a vexatious litigant, and the bond amount remains the only determination for the court to conclude the hearing on the vexatious litigant hearing, the court finds the subject supplemental briefing and hearing in no way alters the fundamental basis of the appeal itself—the vexatious litigant order—and in fact remains integral to the appeal. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189; Henry M. Lee Law Corp. v. Superior Court (2012) 204 Cal.App.4th 1375, 1383-1384.)

Nevertheless, on September 5, 2023, Anderson filed a notice of unavailability based on the prior hospitalization in July 2023. The notice provided NO NEW information or updates and appeared as an updated copy of the prior notice relied upon by Anderson. The notice also came after Anderson in fact submitted a substantial opposition to the motion seeking to deem Plaintiff a vexatious litigant, which was filed after the hospitalization stay period.

The court acknowledged the prior notice of unavailability as well: “Anderson holds a right to appear for oral argument, and the court presumes Anderson in no way intends to waive the right to participate in oral argument. (Moles v. Regents of University of California (1982) 32 Cal.3d 867, 871.) Given the filing of the opposition, and the lack of any updated information on Anderson’s medical condition regarding impacts to an appearance, including video conference, however, the court finds Anderson maintains the ability to appear and therefore proceeds with the hearing. (Cal. Rules Ct, rule 3.1304(d).)” In an abundance of caution, the court continued the hearing to December 12, 2023, with instructions requiring updated information regarding specific medically documented information either regarding the continuing inability to appear, or an expectation for an appearance.

Anderson submitted no request or justified support for any further continuances. The court therefore finds no basis for any additional unsupported, open ended continuances based on prior opposition and selective use of notice without any follow-up factual support. The court proceeds with the hearing.

Defendants supplemental brief represent incurring $36,986 in attorney fees defending the action as to Anderson only. Counsel specifically distinguishes fees between Anderson and Perry. [Declaration of Alexandra Iman.] The court finds the amount reasonable for purposes of determining the bond amount regardless of any potential further review in a motion for attorney fees given the extensive history of the action both before and after the dismissal of co-plaintiff Perry. The court therefore accepts the unopposed declaration, and sets the bond amount for $37,000.

Upon entry of the bond amount, the vexatious litigant has 30 days to comply with the order. Failure to comply with the undertaking order can lead to dismissal of the action. (Code Civ. Proc., § 391.4.) Nevertheless, the court finds the notice of appeal on the order designating Anderson a vexatious litigant stays enforcement of the order pending appeal. (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th 189.) On November 28, 2023, the Court of Appeal set a 10-day response window for the order designating Anderson a vexatious litigant.

Given the extensive history of defaults and subsequent dismissals of the Anderson and Perry filed appeals, the court will set an OSC re: Status of the Appeal for 90 days from the date of this hearing. The parties may update the court as to the presentation of any such brief. Upon any notice of dismissal of the appeal documented by the court in a minute order, the subject order requiring the posting of the $37,000 bond within 30 days will immediately go into effect. At the time of any order requiring bond, the court will also set a follow-up hearing regarding the posting of the bond and dismissal of the entire action for non-compliance.

The motion deeming Anderson a vexatious litigant otherwise remains in place pending the appeal barring a reversal by the Appellate Division. “In 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.” (Code Civ. Proc., § 391.7, subd. (a).) Any new action filed by Anderson pending the appeal can and will be subject to dismissal and potential contempt sanctions.

As for the concurrent Demurrer and Motion to Strike, the motions are off-calendar, due to the stay on enforcement of the bond and pending appeal. The court once again offers the parties the opportunity to continue the hearings, or take the items off-calendar, pending the appeals and the hearing regarding compliance with the bond. If no action is taken in advance of the hearing(s), the court will continue any and all items into 2024. If the action is dismissed, all dates will be vacated.

Moving Defendants to give notice to all parties.