Judge Thomas D. Long, Case 22STCV03858 2022-09-15 Tentative Ruling

On August 18, 2022, Trevor Candler filed a motion for vexatious litigant declaration. Jimmy Hillman filed an opposition, amended opposition, and second amended opposition.

Candler’s counsel declares that Hillman filed Hillman v. Owner Manager, Case No. 21STCV19384, on May 20, 2021 (“First Action”), and the complaint alleged only, “Defendant refused to refund money back to plaintiff.” (Ness Decl. ¶ 2 & Ex. A.) Hillman failed to respond to discovery, did not serve certain filings, and did not meet and confer. (Ness Decl. ¶¶ 3-7.) Before the continued hearing date on Candler’s demurrer, Hillman filed a request for dismissal of the action. (Ness Decl. ¶ 8.)

Five days later, on September 27, 2021, Hillman filed Hillman v. Ness, Case No. 21STCV35819 (“Second Action”), alleging that Candler’s counsel inflicted emotional distress on Hillman during a phone conversation on September 17, 2021. (Ness Decl. ¶ 9 & Ex. G.) After Ness filed a demurrer, Hillman voluntarily dismissed the complaint. (Ness Decl. ¶ 10.) The action remains pending due to Ness’s cross-complaint, and Hillman has not properly served notices or attempted to contact Ness. (Ness Decl. ¶ 10.)

On December 22, 2021, Hillman filed Hillman v. Candler, Guerra, and Guerra, Case No. 21-CV-9938-JLS-KS (C.D. Cal.) (“Third Action”), alleging discrimination. (Ness Decl. ¶ 12 & Ex. K.) The court dismissed the action as frivolous and for lack of federal jurisdiction. (Ness Decl. ¶ 12 & Ex. K.)

On February 1, 2022, Hillman filed Hillman v. Ness, Case No. 22-CV-00489-JLS-KS (C.D. Cal.) (“Fourth Action”), alleging elder abuse based on a harassing phone call while Hillman was in the hospital. (Ness Decl. ¶ 13 & Ex. L.) The court dismissed the action as frivolous and for lack of federal jurisdiction. (Ness Decl. ¶ 13 & Ex. L.)

On January 28, 2022, Hillman filed this action against Trevor Candler, Fabio Guerra, and Lorena Guerra (“Fifth Action”). On February 25, 2022, Candler filed a Cross-Complaint against Hillman and Ramon Ortiz. After Candler filed a demurrer to the Complaint, Hillman filed a First Amended Complaint (“FAC”) on March 14, 2022. On May 13, 2022, the Court sustained Candler’s demurrer to Hillman’s FAC without leave to amend.

A defendant may move for an order requiring the plaintiff to furnish security or for an order dismissing the litigation if the defendant shows that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the moving defendant. (Code Civ. Proc., § 391.1.)

A vexatious litigant is a person who (1) in the immediately preceding seven-year period, 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; or (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, subd. (b).)

Candler seeks an order declaring Hillman a vexatious litigant under subdivisions (b)(1), (b)(2), and (b)(3).

Hillman argues that two cases remain pending and three others were dismissed without an adverse final determination. (Opposition at p. 2.)

“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 v. Lacey (2014) 231 Cal.App.4th 402, 406; see Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779 [“A party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the actions through to completion.”].)

Hillman voluntarily dismissed his complaints in the First Action and Second Action. The federal district court dismissed the Third Action and the Fourth Action after finding that they were frivolous and lacked federal jurisdiction. Hillman did not win these proceedings that he began, and therefore they were finally determined adversely to him. Although the Second Action and the Fifth Action remain pending, those actions remain pending only as to the cross-complaints filed against Hillman.

However, this Court dismissed the FAC in this action (the Fifth Action) only for failure to state a claim against Candler, as only Candler brought the April 1, 2022 demurrer to the FAC. Also on April 1, 2022, the Court granted the motion to quash service of summons and complaint filed by Fabio Guerra and Lorena Guerra. Fabio Guerra and Lorena Guerra were later served with the summons and complaint by substituted service on April 6, 2022, and they have not yet filed a responsive pleading or made a general appearance.

Because Hillman’s claims against Fabio Guerra and Lorena Guerra remain pending, Hillman has not yet lost this entire proceeding, and he does not have five litigations finally determined adversely to him. Accordingly, the Court finds that it cannot make a vexatious litigant declaration on this ground.

The First Action was initially filed against Doe defendants. (Ness Decl., Ex A.) A subsequent filing by Hillman identifies “T. Candler, F. Guerra, L. Guerra” as defendants. (Ness Decl., Ex. C.) The sole claim is one for negligence, with an allegation that the defendants refused to refund money to Hillman and with damages of $950,000.00. (Ness Decl., Ex. A.)

The Third Action was also brought against Trevor Candler, Fabio Guerra, and Lorena Guerra. (Ness Decl., Ex. K.) But the Third Action alleges that the defendants discriminated against him by refusing him access to their place of business. This is therefore not an attempt to relitigate the claims from the First Action.

The Fifth Action was also brought against Trevor Candler, Fabio Guerra, and Lorena Guerra. The FAC does not contain facts, but it purports to bring a claim for general negligence with general damages of $2.5 million. It is not clear whether this complaint is based on the same claim in the First Action. Even if it is, a single attempt to relitigate a matter is not repeated litigation that supports a vexatious litigant determination. (See Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1503-1504 (Holcomb).)

The Second Action was brought against Paul L. Ness, alleging intentional infliction of emotional distress caused by a phone call on September 21, 2021 while Hillman was in the hospital. (Ness Decl., Ex. G.) The Fourth Action was also brought against Paul L. Ness, again alleging emotional distress and elder abuse caused by a phone call when Hillman was in the hospital. (Ness Decl., Ex. L.)

The Fourth Action is not sufficient by itself to show that Hillman is “repeatedly” relitigating the same claim. (See Holcomb, supra, 129 Cal.App.4th at pp. 1503-1504.) Additionally, these claims are not present in this action, and Ness is not a defendant here.

In the First Action, Hillman failed to respond to discovery, filed a FAC on the last possible day, and prematurely served discovery and moved to compel responses. (Ness Decl. ¶ 3.) He also filed several requests for continuances due to medical emergency. (Ness Decl. ¶¶ 4-5 & Exs. B-C.) Many of Hillman’s filings were not properly served and falsely declared that he had met and conferred with opposing counsel. (Ness Decl. ¶¶ 4-5, 7.) The defendants’ counsel filed a notice about Hillman’s alleged misconduct. (Ness Decl. ¶ 7.)

In the Second Action, Hillman filed a request for continuance of a status conference, which he did not serve on the defendant. (Ness Decl. ¶ 10.) Ness filed a notice regarding Hillman’s bad faith tactics and misrepresentations. (Ness Decl. ¶ 11.)

The motion further argues that Hillman has twice filed complaints that were subject to demurrer and waited until the last day to file substantially identical amended complaints. (Motion at p. 11.) Hillman also used a process server who provided false and incorrect proofs of service. (Ibid.)

Based on the limited described actions, the Court cannot conclude that Hillman engaged in tactics that are frivolous or solely intended to cause unnecessary delay such that those actions require a vexatious litigant declaration.

Even if the Court could make a vexatious litigant determination, an order requiring Hillman to furnish security would not be appropriate.

“Security” is an undertaking to assure payment of the defendant’s reasonable expenses incurred in connection with litigation instituted or maintained by the vexatious litigant. (Code Civ. Proc., § 391, subd. (c).) A motion for an order requiring furnishment of security must show that there is not a reasonable probability that the plaintiff will prevail in the litigation against the moving defendant. (Code Civ. Proc., § 391.1.)

The Court sustained Candler’s demurrer to the FAC without leave to amend. Accordingly, there are no remaining claims by Hillman against Candler in this action. This action remains active with respect to movant Candler due only to Candler’s own cross-complaint filed against Hillman. And with respect to cross-complaint’s surviving first and second causes of action, Candler has not made any showing regarding either party’s likelihood of success.

Moreover, the legislative purpose behind section 391.1 is “to minimize the number of frivolous filings.” (Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1582.) Candler has not shown that there are or will be frivolous filings in response to his cross-complaint to support an undertaking.

Hillman’s request for sanctions (Amended Opposition at p. 2; 2nd Amended Opposition at p. 2) is also denied.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court