Foreman et al v. Freedman et al

Filing 35

ORDER Denying 23 Motion to have Plaintiffs declared vexatious litigants and to furnish security. Signed by Judge Michael M. Anello on 10/15/2012. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LORENE FOREMAN, et al.,

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CASE NO. 11-CV-1187-MMA(RBB)
Plaintiffs,

ORDER DENYING
DEFENDANTS’ MOTION TO
DECLARE PLAINTIFFS
VEXATIOUS LITIGANTS AND TO
FURNISH SECURITY

vs.

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[Doc. No. 23]

ROBERT FREEDMAN, et al.,

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Defendants.

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On May 31, 2011, Plaintiffs Lorene and Earnest Foreman (“Plaintiffs”) brought this action

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against Defendants 3960 Arizona Street, Julie Dong, First Light Properties, Robert Freedman, and

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Taylor Williams (collectively “Defendants”) for alleged violations of the Fair Housing Act and

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Americans with Disabilities Act, as well as personal injury and breach of warranty claims. [Doc.

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No. 1.] Presently before the Court is Defendants’ motion to declare Plaintiffs vexatious litigants,

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and to require Plaintiffs to furnish security before proceeding with this action. [Doc. No. 23.]

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Plaintiffs, proceeding pro per, oppose the motion. [Doc. No. 33.] On August 21, 2012, the Court

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took the matter under submission on the papers and without oral argument pursuant to Civil Local

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Rule 7.1(d)(1). [Doc. No. 34.] For the reasons stated below, the Court DENIES Defendants’

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motion.

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I.

VEXATIOUS LITIGANTS

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A.

Legal Standard for Issuing Pre-filing Orders

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The All Writs Act, 28 U.S.C. § 1651(a), provides District Courts with the inherent power

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to enter pre-filing orders against vexatious litigants. Molski v. Evergreen Dynasty Corp., 500 F.3d

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1047, 1057 (9th Cir. 2007). However, such orders are an extreme remedy that should rarely be

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used. Id. (citing De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)). “A court should

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enter a pre-filing order constraining a litigant’s scope of actions in future cases only after a

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cautious review of the pertinent circumstances.” Id. at 1057.

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The Ninth Circuit has held that before a plaintiff can be enjoined as a vexatious litigant, a

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court must find that: (1) the plaintiff had notice of the motion and an opportunity to be heard; (2)

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there was an adequate record for review showing that the litigant’s activities were numerous and

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abusive; (3) the court has made substantive findings as to the frivolousness or harassing nature of

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the litigant’s actions; and (4) the order has an appropriate breadth and is narrowly tailored to fit the

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specific vice encountered. Molski, 500 F.3d at 1057 (citing De Long, 912 F.2d at 1146). A court

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may also consider: (1) the litigant’s history of litigation and whether it entailed vexatious,

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harassing, or duplicative lawsuits; (2) the litigant’s motive in pursuing litigation; (3) whether the

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litigant is represented by counsel; (4) whether the litigant has caused needless expense to other

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parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether

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other sanctions would be adequate to protect the other parties. Id. at 1058.

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B.

Analysis

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Defendants’ motion deals primarily with the allegedly frivolous nature of Plaintiffs’

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current action. (See generally Defs.’ Mot.) Although Defendants provide a list of cases that

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Plaintiffs have filed since 1991, Defendants’ motion entirely fails to address the nature of these

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suits. As Ninth Circuit case law dictates, the Court must identify an adequate record for review

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showing that Plaintiffs’ activities were numerous and abusive. Molski, 500 F.3d at 1057 (citing De

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Long, 912 F.2d at 1146). Further, the Court must determine that Plaintiffs’ prior actions are

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“frivolous” and “harassing in nature.” Id. Because Defendants fail to provide any detail

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whatsoever as to the nature of Plaintiffs’ prior litigations, the Court is unable to make such
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findings. As an “injunction cannot issue merely upon a showing of litigiousness,” the Court

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declines to declare Plaintiffs vexatious litigants. Id. (quoting Moy v. United States, 906 F.2d 467,

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470 (9th Cir. 1990)).

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II.

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REQUEST TO FURNISH SECURITY
Defendants also request that Plaintiffs be required to post $80,000 as security for their

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costs in litigating this action. [Defs.’ Mot. 8.] “While no federal statute authorizes security for

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costs, the District Courts may make their own rules not inconsistent with the Federal Rules of

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Civil Procedure.” Russell v. Cunningham, 233 F.2d 806, 811 (9th Cir. 1956) (citing Fed. R. Civ.

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P. 83). The Southern District of California’s Civil Local Rule 65.1.2(a) permits the Court at any

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time, on its own motion or that of a party, to order a party to furnish security for costs which may

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be awarded against such party in an amount and on such terms as are appropriate. S.D. Cal. Civ.

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L.R. 65.1.2(a). In establishing the requirements for a costs bond, the Court may look to the law of

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the forum state. Simulnet East Associates v. Ramada Hotel Operating Co., 37 F.3d 573, 574 (9th

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Cir. 1994).

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In California, requiring a plaintiff who has been declared a vexatious litigation to post a

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security bond is appropriate to protect defendants from costs and attorney’s fees they might incur.

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California Code of Civil Procedure section 391 requires a party to furnish security on a showing

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that (1) the party is a vexatious litigant and (2) there is no reasonable probability that she will

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prevail in the instant litigation. California Code of Civil Procedure section 391(b) defines a

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vexatious litigant as a person who does any of the following:

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(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.

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(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.
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(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.

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(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.

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Cal. Code Civ. P. § 391(b).
Although unclear, it appears that Defendants argue that Plaintiffs should be declared

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vexatious litigants under subsection (b)(1), as Defendants attached the case numbers of actions

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Plaintiffs filed between December 19, 1991 and May 31, 2012. [See Defs.’ Mot. 3, Ex. A.] To

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declare Plaintiffs vexatious litigants under section 391(b)(1), the Court must be able to discern

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from the record whether the previous cases were dismissed, whether the Plaintiffs were

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represented by counsel, whether the cases had adverse outcomes to Plaintiffs, or whether they

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were unjustifiably permitted to remain pending at least two years without having been brought to

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trial or hearing. Cal. Code Civ. P. § 391(b)(1). Defendants make no showing as to these factors.

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Rather, Defendants simply state that Plaintiffs, jointly and separately, have filed seventeen actions

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over a twenty-year period, and attach the related case numbers. [Defs.’ Mot. 3, Ex. A.] This is

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insufficient.

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Defendants do not invoke subsections (b)(2) or (b)(4) as possible grounds for finding

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Plaintiffs vexatious litigants. This leaves subsection (b)(3), which Defendants do raise. [See

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Defs.’ Mot. 2-3.] It is unclear from Defendants’s motion whether they argue that Plaintiffs have

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“repeatedly file[d] unmeritorious motions, pleadings, or other papers,” or “engage[d] in other

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tactics that are frivolous or solely intended to cause unnecessary delay.” Cal. Code Civ. P. §

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391(b)(3). “While [California courts have not identified] a bright-line rule as to what constitutes

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‘repeatedly,’ most [California] cases affirming the vexatious litigant designation involve situations

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where litigants have filed dozens of motions either during the pendency of an action or relating to

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the same judgment.” Morton v. Wagner, 67 Cal. Rptr. 3d 818, 825 (Cal. Ct. App. 2007). Here,

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Defendants make no showing that Plaintiffs repeatedly filed motions, pleadings, or other papers in

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this action. Certainly, the filing of the complaint itself does not qualify as “repeatedly.” In
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addition, although Defendants discuss at length the allegedly frivolous nature of Plaintiffs’

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complaint, Defendants do not argue that Plaintiffs engaged in “tactics that are frivolous or solely

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intended to cause unnecessary delay.” Cal. Code. Civ. P. § 391(b)(3) (emphasis added). As such,

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the Court declines to declare Plaintiffs vexatious litigants under section 391(b)(3).

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Accordingly, any discussion regarding Plaintiffs’ probability of success in this case is

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irrelevant, as this question is raised only after the Court determines that Plaintiffs are vexatious

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litigants. See Cal. Code. Civ. P. § 391.1 (requiring a motion requiring plaintiff to furnish security

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“be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant

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and that there is not a reasonable probability that he will prevail in the litigation against the

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moving defendant.”).

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In sum, Defendants fail to show that Plaintiffs’ conduct rises to the level

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of “vexatious litigants” as set forth by California Code of Civil Procedure section 391. Therefore,

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the Court will not require that Plaintiffs post security before proceeding with this action.

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III.

CONCLUSION
For the reasons set forth above, the Court DENIES Defendants’ motion to

declare Plaintiffs vexatious litigants and to furnish security.
IT IS SO ORDERED.
DATED: October 15, 2012

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Hon. Michael M. Anello
United States District Judge

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