Judge: Teresa A. Beaudet, Case: 22STCV39045, Date: 2023-10-04 Tentative Ruling

Case Number: 22STCV39045    Hearing Date: October 4, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Tai Soon Lee, in pro per, (“Plaintiff”) filed this action on December 16, 2022 against a number of Defendants, including Susan Lee. Plaintiff filed the operative First Amended Complaint (“FAC”) on February 2, 2023, alleging causes of action for (1) “set aside fraudulent transfer between Mu Yong Lee and Helen-Lee-Doulis & Grace Lee,” (2) “deprivation of the Plaintiff’s 16^th Amendment to the U.S. Constitution: Federal Incomes [sic] Tax (1913)…” (3) physical and mental abuse (cruelty), and (4) civil assault. 

As set forth in the July 25, 2023 minute order in this action, “[o]n March 17, 2023, Judge Terry Green issued an Order relating cases 22STCV39045, 22STCV39068, 22STCV39070, 22STCV39075, 22STCV39078, 22STCV39083, and 23STCV00050.”

Susan Lee now moves for an order: (1) designating Plaintiff a vexatious litigant, (2) requiring Plaintiff to furnish security in this action in the amount of $50,000, or dismiss it, and (3) prohibiting Plaintiff 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. No opposition to the motion was filed.

Request for Judicial Notice

The Court grants Susan Lee’s request for judicial notice as to paragraphs 1-7 of the request.

The Court denies Susan Lee’s request for judicial notice as to paragraphs 8-15. The Court notes that pursuant to California Rules of Court, rule 3.1306, subdivision (c), “[a] party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material. If the material is part of a file in the court in which the matter is being heard, the party must: (1) Specify in writing the part of the court file sought to be judicially noticed; and (2) Either make arrangements with the clerk to have the file in the courtroom at the time of the hearing or confirm with the clerk that the file is electronically accessible to the court.” It does not appear that the case material referenced in paragraphs 8-15 are part of a file in the Court in which the instant action is being heard.

The Court grants Susan Lee’s request for judicial notice in paragraph 16 of the request only as to Exhibits 16 and 22. The Court denies the request as to paragraphs 17 and 18. The Court does not find that sufficient documentation has been provided as to the matters in these paragraphs. As discussed, pursuant to California Rules of Court, rule 3.1306, subdivision (c), “[a] party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material.”

Discussion

As an initial matter, the Court notes that on September 1, 2023, before the instant motion was filed, Plaintiff filed a request for dismissal as to the “[e]ntire action of all parties and all causes of action.” (Plaintiff’s September 1, 2023 Request for Dismissal, Item 1(b)(5).) Dismissal was entered on September 5, 2023, and Susan Lee filed the instant motion on September 5, 2023.

On September 27, 2023, Susan Lee filed a notice of non-receipt of opposition to the instant motion, in which she asserts that Plaintiff’s request for dismissal does not divest the Court of jurisdiction to hear the instant motion. Susan Lee cites to Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1024-1025, where the Court of Appeal held as follows:

“Like a motion for attorney fees or sanctions, a motion to declare a self-represented plaintiff a vexatious litigant deals with an ancillary issue and has no bearing on the finality of the judgment or dismissal. Retaining jurisdiction to decide a vexatious litigant motion is consistent with the purpose of the statutes, which are designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants. A dismissal does not rectify the harm already done by the filing of a groundless action. Nor does the dismissal extinguish the court’s interest in deterring and punishing the waste of judicial resources. A contrary rule would allow a litigant to strategically escape a vexatious litigant finding altogether by dismissing a party or an action prior to a ruling on the vexatious litigant motion and then refiling his or her claims in a later proceeding. This is precisely the tactic Pittman has engaged in here. To fulfill the statute’s aim of protecting future potential litigants, the ability to declare an individual a vexatious litigant must survive even after the action has been dismissed.” (Internal quotations and citations omitted.)

Thus, based on the foregoing, the Court finds that it has jurisdiction to rule on the instant motion.[1]

“Evidence that a litigant is a frequent plaintiff or defendant alone is insufficient to support a vexatious litigant designation. [A] person is not a vexatious litigant unless a court has found that he comes within the definitions in [Code of Civil Procedure] section 391…”
(Morton v. Wagner (2007) 156 Cal.App.4th 963, 969 [internal quotations and citation omitted].)

Pursuant to Code of Civil Procedure section 391, subdivision (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.

(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.

(5) After being restrained pursuant to a restraining order issued after a hearing pursuant to Chapter 1 (commencing with Section 6300) of Part 4 of Division 10 of the Family Code, and while the restraining order is still in place, they commenced, prosecuted, or maintained one or more litigations against a person protected by the restraining order in this or any other court or jurisdiction that are determined to be meritless and caused the person protected by the order to be harassed or intimidated.” 

“What constitutes ‘repeatedly’ and ‘unmeritorious’ under subdivision (b)(3), in any given case, is left to the sound discretion of the trial court.” (Morton v. Wagner, supra, 156 Cal.App.4th at p. 971.)

Susan Lee asserts that Plaintiff is a vexatious litigant. First, Susan Lee asserts that Plaintiff “repeatedly litigates or attempts to relitigate claims, controversies, and issues of fact or law concluded by the final determination against Defendant in the EARO Petition.” (Mot. at p. 13:10-12.)

Susan Lee’s counsel’s declaration in support of the motion provides that “Plaintiff is the estranged spouse of co-defendant Mu Yong Lee. In July 2022, Mu Yong Lee filed a petition for legal separation from Plaintiff, which is pending under case number 22STFL07291…” (Schneider Decl., ¶ 2.) Susan Lee’s counsel states that “[o]n or about November 10, 2022, Plaintiff filed Petitions for Elder Adult Abuse Restraining Orders (‘EARO’ Petitions’) against Defendant and each of the other co-defendants in this action except Mu Yong Lee. A hearing on the EARO Petitions took place on December 5, 2022. Two of the EARO Petitions (against Adam Streets and Grace Lee) were dismissed without prejudice because of Plaintiff’s failure to serve these defendants. The other four EARO Petitions (against Defendant SUSAN LEE, Helen Lee-Doulis, Mable Lee, and Christopher Grigg) were decided on the merits in favor of the Defendants and against Plaintiff.” (Schneider Decl., ¶ 3.)

Susan Lee cites to a copy of the “transcript of the hearing on the EARO Petitions,” which is dated December 5, 2022. (Schneider Decl., ¶ 4, Ex. 5.) Susan Lee cites to the following determination from the Court set forth in the transcript: “BASED ON ALL THE EVIDENCE I HAVE BEFORE ME I’M NOT ABLE TO FIND THAT THE PETITIONER’S MET HER BURDEN TO PROVE ANY OF THESE CASES BY A PREPONDERANCE OF THE EVIDENCE THAT THESE FOUR FAMILY MEMBERS HAVE PHYSICALLY ABUSED HER, NEGLECTED HER, ISOLATED HER, ABANDONED HER, ABDUCTED HER OR SOME OTHER BEHAVIOR THAT CAUSED PHYSICAL HARM, PAIN OR MENTAL SUFFERING OR FINANCIAL ABUSE. SO AT THIS TIME ALL FOUR OF YOUR RESTRAINING ORDERS ARE DENIED.” (Schneider Decl., ¶ 4, Ex. 5, p. 52.) Susan Lee asserts that “[t]he law of Issue preclusion prevents Plaintiff from relitigating the issue of abuse against Defendant or the co-defendants who prevailed against Plaintiff in the EARO Petitions.” (Mot. at p. 13:18-20.) The Court notes that in the FAC in the instant action, Plaintiff’s third cause of action is for “physical and mental abuse (cruelty) by Mu Yong Lee, Helen-Lee-Doulis, Grace Lee, Mable Lee, Susan Lee, & Two Son-in Laws; Chriss Grigg, & Adams Streets.”  

The Court also notes that the foregoing argument appears to pertain to the definition of “vexatious litigant” set forth in Code of Civil Procedure section 391, subdivision (b)(2). However, Susan Lee moves for an order “[d]esignating Plaintiff TAI SOON LEE…a vexatious litigant (Cal. Code Civ. Proc.§ 391(b)(3))…” (Mot. at p. 2:6-7, emphasis added.)

Susan Lee also asserts that Plaintiff has engaged in a number of vexatious tactics. As set forth above, Code of Civil Procedure section 391, subdivision (b)(3) provides that a “[v]exatious litigant” means a person who “[i]n 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.”

Susan Lee’s counsel states that “[d]espite admonishing Plaintiff that Jonathan D. Chang, Plaintiff’s purported ‘attorney-in-fact,’ was not licensed to practice law in the State of California, on March 21, 2023, Plaintiff filed a ‘NOTICE of Jonathan D. Chang as Plaintiff’s attorney-in-fact,’ in which there is an admission that Mr. Chang ‘is not a lawyer’ but nevertheless ‘has prepared for [sic] all legal documents in connection with the lawsuit.’” (Schneider Decl., ¶ 17, Ex. 16.) Susan Lee’s counsel attaches to her declaration a copy of the results of an “Attorney Search” for “Jonathan D. Chang” from the website of the State Bar of California, which “returned no results.” (Schneider Decl., ¶ 27, Ex. 22.)

Susan Lee also states that “[o]n December 16, 2022, Plaintiff filed a procedurally defective notice of related case, relating this case only to the FL Proceeding. On January 11, 2023, the court issued a minute order citing the numerous deficiencies in Plaintiff’s filing.” (Schneider Decl., ¶ 7, Ex. 7.) The Court’s January 11, 2023 minute order in this action provides, inter alia, that “Plaintiff did not file the Notice in the family law action as required. The proof of service attached to the Notice filed in civil law case 22STCV39045 is blank and Plaintiff did not file a separate proof of service. Pursuant to California Rules of Court, rule 3.300(d), ‘[t]he Notice of Related Case must be filed in all pending cases listed in the notice and must be served on all parties in those cases.’ There is no evidence that Plaintiff served counsel for Mu Yong Lee in the family law action. To satisfy due process, all parties in all listed actions must be served with the Notice.” (Ibid.)

Susan Lee’s counsel also states that she sent a letter to Plaintiff noting that Plaintiff “failed to file a notice of change of address in one of the Related Cases, creating administrative burden.” (Schneider Decl., ¶ 10.)

Susan Lee also asserts that “Plaintiff served, and/or unsuccessfully attempted to file, multiple versions of Second Amended Complaints without leave of Court and after Defendant and her co-defendants advised they would not stipulate to permit their filing.” (Mot. at p. 8:9-11.) Susan Lee’s counsel indicates that “[o]n February 24, 2023, Ms. Smith’s office received a facsimile from Plaintiff, consisting of a ‘stipulation and order’ for filing of a second amended complaint under the case caption for 22STCV39083 only…” (Schneider Decl., ¶ 11; emphasis omitted.) On March 6, 2023, Susan Lee’s counsel wrote to Plaintiff, noting, inter alia, that Defendant would not stipulate to the proposed amendment. (Schneider Decl., ¶ 13.) Susan Lee’s counsel asserts that “[d]espite knowing that she required an order granting leave to file a second amended complaint, and despite Defendant’s refusal to stipulate to the filing of a defective second amended complaint, Plaintiff served Defendant (and most but not all of the co- defendants) with two documents purporting to be ‘second amended complaints’ in each of the Related Cases (even though Case No. 23STCV00050 does not have a ‘First Amended Complaint’) and a notice of same filed in the FL Proceeding.” (Schneider Decl., ¶ 14.) Susan Lee’s counsel states that “[o]n or about March 16, 2023, our office determined through the LA Court Attorney Portal that the court had rejected Plaintiff’s attempt to file a second amended complaint…because leave of court was necessary.” (Schneider Decl., ¶ 16.)

Susan Lee’s counsel also indicates that “[i]n the operative pleading in this case (First Amended Complaint, ¶¶ 67-68), and in each of the other Related Cases, Plaintiff continues to pursue claims for damages relating to personal property which she claims Defendants are wrongfully withholding from her, despite the fact that she has instructed Defendants to discard the items. A true and correct copy of a letter dated April 9, 2023 from Plaintiff to me, instructing that she does not want the personal property items mentioned as elements of damage in her operative complaint, is attached as Exhibit 23 and incorporated by reference. While Plaintiff has filed a motion for leave to file a second amended complaint in this case, the proposed second amended complaint still alleges that Defendants harmed her by taking her personal belongings (proposed Second Amended Complaint, ¶¶ 67-69).” (Schneider Decl., ¶ 21, emphasis omitted.)

Susan Lee also indicates that on May 16, 2023, Plaintiff filed a request in this action for a court order that she undergo an ‘independent medical examination,’ under the purported authority of Code of Civil Procedure sections 2032.210-2032.260. (Schneider Decl., ¶ 23, Ex. 20.) Susan Lee asserts that “[t]hese sections do not authorize a medical examination of the plaintiff requested by a plaintiff, but only a medical examination of a plaintiff requested by a defendant. This motion is not supported by any evidence.” (Mot. at p. 11:3-6.) Indeed, pursuant to Code of Civil Procedure section 2032.220, subdivision (a), “[i]n any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee.”

Susan Lee also asserts that “[o]n May 31, 2023, Plaintiff filed a nearly 600 page request for judicial notice for no apparent reason, seeking judicial notice of several items which do not fall within any recognized category for taking judicial notice…” (Schneider Decl., ¶ 24.) The Court notes that the request for judicial notice filed by Plaintiff on May 31, 2023 in this action does not appear to indicate that it is filed in support of any motion or other filing.

Susan Lee also indicates that on June 28, 2023, Plaintiff filed a document captioned “Plaintiff Tai Soon Lee’s Request for a Court-Appointed Attorney (Sixth Amendment to the U.S. Constitution) or ‘Temporary Relief.’” (Schneider Decl., ¶ 26, Ex. 21.) The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” (U.S. Const., 6th Amend.) As noted by Susan Lee, the instant case is a civil action, not a criminal action.

Based on the foregoing, the Court finds that Susan Lee has demonstrated that Plaintiff “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.” (Code Civ. Proc., § 391, subd. (b)(3).) Moreover, as set forth above, no opposition to the instant motion was filed. Thus, Plaintiff does not dispute Susan Lee’s assertion that Plaintiff is a vexatious litigant.

Susan Lee also moves for an order “[r]equiring Plaintiff to furnish security in this action in the amount of $50,000, or dismiss it.” (Mot. at p. 2:8-9.) Pursuant to Code of Civil Procedure section 391.1, subdivision (a), “[i]n 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.” The Court notes that Susan Lee’s motion does not appear to contain a discussion as to whether there is a reasonable probability that Plaintiff will prevail in the instant action. Moreover, as set forth above, Plaintiff already filed a request for dismissal of this action, which was entered on September 5, 2023. Thus, Susan Lee’s request that the Court require Plaintiff to furnish security in this action in the amount of $50,000, or dismiss it, is denied.

Lastly, Susan Lee moves for an order “[p]rohibiting Plaintiff 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.” (Mot. at p. 2:10-12.) Pursuant to Code of Civil Procedure section 391.7, subdivision (a), “[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.” Susan Lee asserts that “[u]nder the circumstances, issuance of a prefiling order is necessary and appropriate.”

As set forth above, the Court finds that Susan Lee has demonstrated that Plaintiff “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.” (Code Civ. Proc., § 391, subd. (b)(3).) Thus, the Court grants Susan Lee’s unopposed request for a prefiling order pursuant to Code of Civil Procedure section 391.7, subdivision (a).

Conclusion

Based on the foregoing, Susan Lee’s motion is granted in part and denied in part. The Court grants Susan Lee’s motion to designate Plaintiff a vexatious litigant under Code of Civil Procedure section 391, subdivision (b)(3), and for 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.” (Code Civ. Proc., § 391.7, subd. (a).) Susan Lee’s motion is otherwise denied. 

Susan Lee is ordered to provide notice of this ruling. 

DATED:  October 4, 2023                                                                             

________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court