Bernier et al v. Travelers Property Casualty Insurance Company et al

Filing 12

ORDER granting in part and denying in part 3 Defendant's Motion to Dismiss; and granting 4 Defendant's Motion re: Vexatious Litigants. The Clerk of this Court may not file or accept any further complaints filed by or on behalf of Plai ntiffs Rejeanne Bernier or Hans Croteau which pertain to Travelers Property Casualty Insurance Company Policy no. 976025623. IT IS FURTHER ORDERED that Plaintiffs each post a bond in the amount of $50,000 on or before 1/5/2018 to be applied towa rd the fees and costs incurred by Travelers should the instant lawsuit proceed and Travelers prevail, or to be returned to Plaintiffs should they prevail. If no bond is posted by that date, this action will be dismissed; and The matter is STAYED pending Plaintiffs' posting of bond. Signed by Judge Michael M. Anello on 11/29/2017. (All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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REJEANNE BERNIER and HANS
CROTEAU,

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ORDER:

Plaintiffs,

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Case No.: 17cv1028-MMA (BLM)

v.

GRANTING IN PART AND
DENYING IN PART DEFENDANT'S
MOTION TO DISMISS; AND

TRAVELERS PROPERTY CASUALTY
INSURANCE COMPANY, et al.,
Defendants.

[Doc. No. 3]

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GRANTING DEFENDANT’S
MOTION RE: VEXATIOUS
LITIGANTS

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[Doc. No. 4]

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On May 18, 2017, Plaintiffs Rejeanne Bernier (“Bernier”) and Hans Croteau

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(“Hans”), proceeding pro se, commenced this action by filing a complaint for breach of

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contract and breach of the covenant of good faith and fair dealing. Doc. No. 1

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(“Compl.”). The matters presently before the Court are Defendant Travelers Property

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Casualty Insurance Company’s (“Travelers”) “Motion to Dismiss Under FRCP 12(b)(6)”

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[Doc. No. 3-1 (“MTD”)], and “Motion to Require Vexatious Litigant Plaintiffs to Obtain

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Court’s Permission for Further Filing or Post Security” [Doc. No. 4-1 (“Vex. Mtn”)].
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Plaintiffs opposed both motions [Doc. No. 9 (“MTD Oppo.”); Doc. No. 7 (“Vex.

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Oppo.”)], and Travelers replied [Doc. No. 8 (“MTD Reply”); Doc. No. 10 (“Vex.

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Reply”)]. The Court took the matters under submission on the papers and without oral

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argument pursuant to Civil Local Rule 7.1.d.1. Doc. No. 11. For the reasons stated

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herein, the Court GRANTS IN PART AND DENIES IN PART Travelers’ motion to

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dismiss [Doc. No. 3] and GRANTS Travelers’ motion re: vexatious litigants [Doc. No.

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4].

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JUDICIAL NOTICE

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Travelers requests the Court judicially notice 57 documents in support of its

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vexatious litigant motion and 7 documents in support of its motion to dismiss. See Doc.

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Nos. 4-3 (“Requests for Judicial Notice”), 3-2. All 7 of the documents in support of the

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motion to dismiss and 56 of the documents in support of the vexatious litigant motion are

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court filings. See Requests for Judicial Notice, Exhibits 1-55; Doc No. 3-2, Exhibits 1-7.

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The remaining documents include a settlement agreement for case no. 37-2011-00091919

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(“case 91919”) between Jessie Croteau (“Jessie”), ICS Professional Services, Inc.

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(“ICS”), and Travelers, and correspondence from Hans and Bernier regarding the

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proposed settlement of case 91919 and demand to act pro se. Requests for Judicial

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Notice, Exhibits 56-57. Plaintiffs also request the Court judicially notice 30 documents

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in support of their opposition to the motion to dismiss, which also consists of court

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filings. See Doc. Nos. 7 at 33-38.

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In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not

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look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903,

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908 (9th Cir. 2003). “A court may, however, consider certain materials—documents

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attached to the complaint, documents incorporated by reference in the complaint, or

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matters of judicial notice—without converting the motion to dismiss into a motion for

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summary judgment.” Id.; see also Fed. R. Evid. 201; Lee v. City of Los Angeles, 250

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F.3d 668, 688 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cnty. of Santa

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Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002). “[E]ven if a document is not attached to
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17cv1028-MMA (BLM)

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a complaint, it may be incorporated by reference into a complaint if the plaintiff refers

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extensively to the document or the document forms the basis of the plaintiff’s claim.”

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Ritchie, 342 F.3d at 908 (internal citations omitted). A court “may consider a document

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the authenticity of which is not contested, and upon which the plaintiff’s complaint

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necessarily relies.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded

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by statute on other grounds in Abrego v. Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006);

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Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The Court may also judicially

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notice court filings in other tribunals and other matters of public record. Fed. R. Evid.

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201; Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006);

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Biggs v. Terhune, 334 F.3d 910, 916 n.3 (9th Cir. 2003).
The complaint relies on and references the settlement agreement in case 91919

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(Requests for Judicial Notice, Exhibit 56) and Plaintiffs’ correspondence demanding they

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be permitted to act pro se (Requests for Judicial notice, Exhibit 57). Therefore, they are

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appropriate for incorporation by reference. See Davis v. HSBC Bank Nevada, N.A., 691

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F.3d 1152, 1159-61 (9th Cir. 2012). Additionally, the court filings are appropriate for

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judicial notice. See Reyn’s Pasta Bella, LLC, 442 F.3d at 746 n.6; Biggs, 334 F.3d at 916

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n.3. However, Travelers requests that the Court judicially notice some of the documents

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in both its request in support of the vexatious litigant motion and its request in support of

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the motion to dismiss. Additionally, Plaintiffs request the Court judicially notice some of

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the same documents as Travelers. Further, Plaintiffs do not attach Exhibits 23 through 30

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to either of their oppositions.

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As such, the Court GRANTS Travelers’ request to judicially notice Exhibits 1-12,

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14, and 16-57 attached in support of Travelers’ vexatious litigant motion and Exhibits 2,

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4, and 7 attached in support of Travelers’ motion to dismiss, and DENIES AS MOOT

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Exhibits 13 and 15 attached in support of Travelers’ vexatious litigant motion and

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Exhibits 1, 3, and 5-6 attached in support of Travelers’ motion to dismiss. Additionally,

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the Court GRANTS Plaintiffs’ request to judicially notice Exhibits 2-5, 7-8, 11-12, 15-

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19, and 21-22, DENIES AS MOOT Exhibits 1, 6, 9-10, 13-14, and 20, and DENIES

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Exhibits 23-30.
MOTION TO DISMISS

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Travelers moves to dismiss portions of Plaintiffs’ complaint pursuant to Federal

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Rules of Civil Procedure 12(b)(6) and 8(a).1 See MTD. Travelers argues that some of

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Plaintiffs’ claims are barred by res judicata and that one claim fails to state a claim. See

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id. Plaintiffs oppose the motion. See MTD Oppo.

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1.

Relevant Background 2
In 2004, Travelers issued a homeowners insurance policy (“Policy”) to Bernier,

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which Travelers renewed annually until it cancelled the policy in 2011. Compl. ¶ 8.

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Hans resided in Bernier’s home and was a beneficiary of the Policy. Id.

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On August 26, 2007, Bernier filed a claim with Travelers for damage to her home

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caused by an unexpected rainstorm that struck after Jessie and ICS (Jessie’s construction

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company) removed the roof. Compl. ¶ 31. Travelers’ claim notes state that it needed to

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investigate conflicting claims between Jessie and Bernier, but Bernier alleges that

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Travelers instead closed her insurance claim without compensating her or defending her

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against Jessie and ICS in a related construction lawsuit. Id.

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On May 26, 2011, Attorney Patrick Howe, on behalf of Jessie and ICS, filed a

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lawsuit against Plaintiffs for malicious prosecution in case 91919. Compl. ¶¶ 9, 31.

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Pursuant to the Policy, Travelers defended Plaintiffs under a complete reservation of

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rights, but did not indemnify Plaintiffs against the malicious prosecution claim. Compl.

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¶¶ 10, 33.

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Travelers states that it is moving to dismiss all of Plaintiffs claims, but fails to address one of three
allegations supporting Plaintiffs’ causes of action. See MTD.
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The Court must accept as true the allegations set forth in the complaint in determining the pending
motion to dismiss. See Hosp. Bldg. Co. v. Trs. Of Rex Hosp., 425 U.S. 738, 740 (1976). However, the
Court does not make any findings of fact.
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In September 2012, Bernier filed for bankruptcy, which stayed case 91919.

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Compl. ¶ 11. Unbeknownst to Plaintiffs, Travelers negotiated a $325,000 settlement with

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Jessie, ICS, and their attorney in October 2012. Compl. ¶12. When Plaintiffs learned of

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the settlement, they informed Travelers a conflict had arisen and demanded to substitute

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Travelers’ appointed attorneys so that Plaintiffs could proceed pro se. Compl. ¶ 13.

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Travelers denied Plaintiffs’ requests to proceed pro se and claimed that the Policy

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permitted Travelers to settle any claim it deemed appropriate. Compl. ¶ 14.

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Jessie and ICS subsequently moved for relief from Bernier’s bankruptcy stay to

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consummate the settlement with Travelers. Compl. ¶ 16. The bankruptcy court granted

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their relief and gave Bernier notice of her right to file suit regarding the negotiation and

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execution of the settlement in state court. Id. Bernier appealed the bankruptcy court’s

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order to the Ninth Circuit Bankruptcy Appellate Panel. Id. While the appeal was

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pending on December 24, 2012, Travelers executed the settlement, which listed Plaintiffs

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as third party beneficiaries. Compl. ¶¶ 17, 18. Thereafter, the Ninth Circuit Bankruptcy

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Appellate Panel dismissed Bernier’s appeal as moot. Compl. ¶ 18.

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On July 22, 2013, Plaintiffs filed a complaint for breach of contract, bad faith, and

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declaratory relief through their attorneys, Glenn Rosen and the Rosen Law Firm, against

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Travelers in state court, case no. 37-2013-58680-CU-BC-CTL (“case 58680”), seeking

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damages caused by Travelers’ refusal to relinquish control of Plaintiffs’ defenses and

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execution of the settlement in case 91919. Compl. ¶¶ 19, 41. On May 20, 2015, the state

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court dismissed case 58680 with prejudice for Plaintiffs’ failure to each post $50,000 in

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order to maintain their lawsuit. Compl. ¶ 20. Plaintiffs appealed the state court’s

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dismissal order and the appellate court dismissed the appeal. Compl. ¶ 21.

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On February 16, 2017, Plaintiffs were each served with deposition subpoenas in

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San Diego Superior Court case no. 37-2015-38886-CU-NP-CTL (“case 38886”), a

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malicious prosecution case filed by Jessie and ICS against Plaintiffs’ attorneys for their

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representation of Plaintiffs in case 58680 and case 91919. Compl. ¶ 22. Jessie and ICS

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allege they successfully sued Plaintiffs in case 91919. Compl. ¶ 23. Plaintiffs allege case

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38886 violates case 91919’s settlement. Compl. ¶ 23.

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Plaintiffs filed a claim with Travelers for an attorney and for damages from Mr.

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Howe’s deposition subpoenas in case 38886. Compl. ¶ 24. Travelers denied the claim

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on the grounds that Plaintiffs were not named directly in the lawsuit and because the

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allegations were filed after Travelers cancelled the Policy in 2011. Id. Additionally,

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Travelers did not respond to Plaintiffs’ claim of damages caused by violating case

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91919’s settlement. Id.

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On April 14, 2017, Plaintiffs lodged with Travelers “voluminous documents”

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Plaintiffs had filed in case 38886 and requested Travelers review the documents and

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protect Plaintiffs’ rights. Compl. ¶ 25. On April 25, 2017, Plaintiffs submitted a revised

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insurance claim with Travelers and attached a copy of a draft federal complaint against

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them. Id. Even though the draft complaint demanded less than what Travelers owed

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Plaintiffs, Travelers rejected Plaintiffs’ demand. Compl. ¶ 26.

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Accordingly, Plaintiffs allege that Travelers breached the Policy contract and

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breached the covenant of good faith and fair dealing by: (1) improperly settling case

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91919, causing damages in excess of $200,000; (2) improperly causing the dismissal of

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case 58680; and (3) refusing to represent Plaintiffs in case 38886. Compl. ¶¶ 27-52.

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Plaintiffs allege these breaches caused special damages in the amount of $2,914,725 and

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general damages. Id. In addition to monetary damages, Plaintiffs seek declaratory relief.

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Compl. ¶¶53-57.

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2.

Legal Standard

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A Rule 12(b)(6) motion tests the legal sufficiency of the claims made in the

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complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2011). A pleading must

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contain “a short and plain statement of the claim showing that the pleader is entitled to

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relief . . . .” Fed. R. Civ. P. 8(a)(2). However, plaintiffs must also plead “enough facts to

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state a claim to relief that is plausible on its face.” Fed. R. Civ. P. 12(b)(6); Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard demands more
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than “a formulaic recitation of the elements of a cause of action,” or “naked assertions

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devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(internal quotations omitted). Instead, the complaint “must contain allegations of

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underlying facts sufficient to give fair notice and to enable the opposing party to defend

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itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth

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of all factual allegations and must construe them in the light most favorable to the

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nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

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The court need not take legal conclusions as true merely because they are cast in the form

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of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).

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Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to

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defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

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Where dismissal is appropriate, a court should grant leave to amend unless the

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plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of

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Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).

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3.

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Analysis
Travelers contends that its alleged improper settlement in case 91919 has already

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been adjudicated in the San Diego Superior Court, that the judgment is entitled to full

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faith and credit, and therefore, this Court is precluded from considering this claim. MTD

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at 2. In addition, Travelers contends that its declination to defend Plaintiffs against a

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deposition subpoena served in case 38886 should be dismissed because Travelers’ was

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not required to defend them under the Policy. MTD at 2-3. Travelers does not challenge

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Plaintiffs’ contention that it improperly caused the dismissal of case 58680. See MTD.

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A.

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Travelers asserts that the Full Faith and Credit Clause of the United States

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Constitution precludes Plaintiffs from re-litigating the breach of contract and breach of

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the covenant of good faith and fair dealing claims resulting from Travelers improper

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settlement of case 91919. MTD at 8. Plaintiffs contend that res judicata does not bar the

Full Faith and Credit Clause

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instant action because the prior action was dismissed with prejudice pursuant to a

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vexatious litigant finding, which is not a final judgment on the merits. MTD Oppo. at 19-

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21.

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“It is now settled that a federal court must give to a state-court judgment the same

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preclusive effect as would be given that judgment under the law of the State in which the

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judgment was rendered’ under the Constitution’s Full Faith and Credit Clause and under

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28 U.S.C. § 1738.” Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir. 2007) (quoting

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Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)). “To determine

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the preclusive effect of a state court judgment, federal courts look to state law.” Intri-

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Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).

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“Under California law, res judicata precludes a party from relitigating (1) the same claim,

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(2) against the same party, (3) when that claim proceeded to a final judgment on the

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merits in a prior action.” Adam Bros. Farming, Inc. v. County of Santa Barbara, 604

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F.3d 1142, 1148-49 (9th Cir. 2010) (citing Mycogen Corp. v. Monsanto Co., 28 Cal. 4th

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888, 896 (Cal. 2002)).

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Generally, a dismissal of a case with prejudice is a final judgment on the merits,

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and therefore bars subsequent suits on the same cause of action. Torrey Pines Bank v.

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Superior Court (White), 216 Cal. App. 3d 813, 820-21 (Cal. Ct. App. 1989). However,

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“a mere statement that a judgment of dismissal is ‘with prejudice’ is not conclusive. It is

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the nature of the action and the character of the judgment that determines whether it is res

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judicata.” Gagnon Co. v. Nevada Desert Inn, Inc., 45 Cal. 2d 448, 455 (Cal. 1955).

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California law regarding vexatious litigants specifies that “[e]xcept for an order

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dismissing the litigation pursuant to subdivision (b) of Section 391.3, no determination

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made by the court in determining or ruling upon the motion shall be or be deemed to be a

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determination of any issue in the litigation or of the merits thereof.” Cal. Code Civ. Pro.

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§ 391.2. Section 391.3(b) states that the court must dismiss the litigation if it finds it “has

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no merit and has been filed for the purposes of harassment or delay.” Cal. Code Civ. Pro.

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§ 391.3(b).
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Travelers asserts that Plaintiffs’ improper settlement claim is the same allegation

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presented in case 58680. MTD at 8. Travelers contends that, in case 58680, the San

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Diego Superior Court dismissed Plaintiffs’ improper settlement claims with prejudice. In

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this regard, Travelers contends that it prevailed in the San Diego Superior Court action on

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the merits of the case and thus, this action is barred by the doctrine of res judicata. See

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id.

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In case 58680, Plaintiffs filed a complaint against Travelers for breach of contract,

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bad faith, and declaratory relief caused by “Travelers’ refusal to relinquish control of

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Plaintiffs’ defenses to case 91919 and Travelers’ payment of $325,000 to Jessie, ICS, and

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Howe to execute the settlement.” Compl. ¶ 19; see Doc. No. 3-2, Exhibit 2; see also

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Requests for Judicial Notice, Exhibit 11. On November 24, 2014, Travelers filed a

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“Motion to Require Vexatious Litigant Plaintiffs to Post a Security” pursuant to

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California Code of Civil Procedure §§ 391-391.3. Bernier v. Croteau, 37-2013-

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00058680-CU-BC-CTL, Register of Actions No. 159, (Nov. 16, 2017),

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https://roa.sdcourt.ca.gov/roa/faces/CaseSearch.xhtml; see Requests for Judicial Notice,

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Exhibit 13. After reviewing the parties’ briefing, the San Diego Superior Court

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determined that Plaintiffs are vexatious litigants and found there was no reasonable

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probability that they would prevail on any of their alleged causes of action. See Requests

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for Judicial Notice, Exhibit 13. Thus, the San Diego Superior Court ordered Plaintiffs to

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each furnish security in the amount of $50,000 under California Code of Civil Procedure

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§ 391.3(a). See Cal. Code Civ. Pro. § 391.3(a) (stating that the court finds a litigant

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vexatious under this section if “there is no reasonable probability that the plaintiff will

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prevail in the litigation against the moving defendant”); Doc. No. 3-2, Exhibit 4. After

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Plaintiffs failed to post the security bond, the San Diego Superior Court dismissed

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Plaintiffs’ complaint “with prejudice.” Doc. No. 3-2, Exhibit 4; see also Cal. Code Civ.

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Pro. § 391.4.

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The San Diego Superior Court dismissed the action relied upon by Travelers for its
res judicata argument due only to Plaintiffs’ failure to post the $50,000 security as
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ordered by the court pursuant to California Code of Civil Procedure § 391.3(a). Id.

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California law provides that such a dismissal does not involve a determination on the

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merits and, for that reason, the San Diego Superior Court did not reach a final judgment

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on the merits for purposes of barring this action under the Full Faith and Credit Clause or

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res judicata. See Nguyen v. Sacramento County, No. CIV S-03-2635 FCD EFB P, 2010

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WL 580185, at *2 (E.D. Cal. Feb. 12, 2010) (finding that the state court dismissal with

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prejudice is not a final judgment on the merits); Ensher v. Ensher, Alexander & Barsoom,

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Inc., 187 Cal. App. 2d 407, 411 (Cal. Ct. App. 1960) (“where the dismissal of an action

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does not purport to go to the merits of the case, the trial court has no authority to include

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within the judgment of dismissal an order which in effect precludes the plaintiff from

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instituting another action”); Crowe v. Gogineni, No. 2:11-cv-3438 JAM DAD PS, 2012

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WL 6203124, at *12-13 (E.D. Cal Dec. 12, 2012) (finding res judicata did not bar

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litigation of the same claims where the prior case was dismissed with prejudice for a

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vexatious litigant’s failure to post security even where the state court found the plaintiff

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had no reasonable probability of prevailing on the merits of the case); see also Cal. Code

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Civ. Pro. § 391.2. Accordingly, the Court DENIES Travelers’ motion to dismiss

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Plaintiffs’ improper settlement claims under the Full Faith and Credit Clause of the

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United States Constitution.

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B.

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Travelers next contends that Plaintiffs’ claims arising out of “Travelers’

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declination to provide defense counsel to [P]laintiffs in their depositions in case no.

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8886,” must be dismissed because Travelers has no duty to defend Plaintiffs in claims or

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suits not against Plaintiffs. MTD at 9.

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Failure to Defend

A federal court sitting in diversity must apply state law in construing an insurance

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policy. See Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003) (quoting

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Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996)). Under California

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law, ordinary rules of contract interpretation apply to insurance policies. Bank of the

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West v. Superior Court, 2 Cal. 4th 1254, 1264 (Cal. 1992). “To determine whether a duty
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to defend is present, a court ‘compar[es] the allegations of the third party complaint with

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the terms of the policy.” Cort v. St. Paul Fire & Marine Ins. Cos., 311 F.3d 979, 983

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(9th Cir. 2002) (quoting El-Com Hardware, Inc. v. Fireman’s Fund Ins. Co., 92 Cal.

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App. 4th 205, 212 (Cal. Ct. App. 2001)). The test is “whether the underlying action for

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which defense . . . is sought potentially seeks relief within the coverage of the policy.” La

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Jolla Beach & Tennis Club, Inc. v. Indus. Indem. Co., 9 Cal. 4th 27, 44 (Cal. 1994)

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(emphasis in original). “If the alleged injuries against the claimant by the insured are

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within the terms of the policy, then the duty to defend attaches regardless of the insurer’s

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determination that the suit is without merit.” Farmer v. Allstate Ins. Co., 311 F. Supp. 2d

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884, 890-91 (C.D. Cal. 2004) (citing Wausau Underwriters Ins. Co. v. Unigard Sec. Ins.

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Co., 68 Cal. App. 4th 1030, 1045 (Cal. Ct. App. 1998)). The only time a duty to defend

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does not exist is where there is “no possibility of coverage.” Waller v. Truck Ins. Exch.

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Inc., 11 Cal. 4th 1, 19 (Cal. 1995) (quoting Fire Ins. Exchange v. Abbott, 204 Cal. App.

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3d 1012, 1029 (Cal. Ct. App. 1988)). Thus, the duty to defend arises when, based on the

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allegations of the complaint or on extrinsic facts known by the insurer at the inception of

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a third party lawsuit, “a suit potentially seeks damages within the coverage of the policy.”

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Montrose Chemical Corp. v. Superior Court, 6 Cal. 4th 287, 295 (Cal. 1993) (emphasis

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in original).

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Travelers’ policy states that it will defend the insured “[i]f a claim is made or a

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suit is brought against any insured for damages . . .” Compl., Exhibit A. Plaintiffs claim

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that Travelers had a duty to provide defense counsel to Plaintiffs in their depositions in

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case 38886 filed by Jessie and ICS against Glenn Rosen and the Rosen Law firm over

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their prior representation of Plaintiffs in case 58680 and case no. 37-2014-11015 (“case

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11015”). Compl. ¶ 46. In case 38886, Jessie and ICS alleged that Glenn Rosen and the

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Rosen Law Firm continued to represent Bernier and Hans in multiple lawsuits against

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Jessie and ICS despite “not believ[ing] the claims made in such lawsuits were valid.”

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Requests for Judicial Notice, Exhibit 16 at 5. Jessie and ICS prayed for relief from Glenn

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Rosen and the Rosen Law Firm, not Plaintiffs. Id. at 6. Thus, no claim was made and no
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suit was brought against Bernier or Hans for damages arising from case 38886 and

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Travelers had no obligation to defend them. See Waller, 11 Cal. 4th at 18; see also

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Montrose, 6 Cal. 4th at 295. Accordingly, the Court GRANTS Travelers’ motion to

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dismiss Plaintiffs’ failure to defend claims without leave to amend. See Knappenberger,

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566 F.3d at 942 (stating that the court should grant leave to amend unless plaintiffs could

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not possibly cure the defects in the pleading).
VEXATIOUS LITIGANTS

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Travelers also moves the Court “for an order that the Clerk of this Court may not

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file or accept any further pleadings, papers or documents from Plaintiffs which pertain to

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Travelers policy no. 970625623 without first obtaining leave of the Court,” or to require

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Plaintiffs to post security. Vex. Mtn at 4; see also Vex. Reply. Plaintiffs oppose the

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motion. See Vex. Oppo.

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1.

Relevant Background

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Travelers contends that this is the fourth lawsuit Plaintiffs have filed against

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Travelers for breach of insurance contract, insurance bad faith, and declaratory relief for

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its alleged refusal to defend Plaintiffs in various lawsuits, all of which arise from the

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2007 remodel of Bernier’s home on Maury Drive (“Maury Property”). Vex. Mtn at 4.

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Plaintiffs have filed 17 lawsuits arising from the 2007 remodel and repair of the Maury

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Property. Id. These cases allege “wrongs ranging from breach of contract against

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subcontractors, including Jessie (Bernier’s son and Hans’ brother), to bad faith against

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Travelers, to legal malpractice against several of their former attorneys.” Id. Travelers

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further states that “Plaintiffs have been declared vexatious litigants in several lawsuits

23

arising out of the 2007 remodel of the Maury Drive Property.”3 Id. When those actions

24

failed, Plaintiffs filed a lawsuit against the San Diego County District Attorney’s Office,

25

the California State Attorney General, the State of California, and other defendants

26
27
3

28

Hans was also declared a vexatious litigant in the San Diego County Superior Court in 2005 for a
different matter. Requests for Judicial Notice, Exhibit 45.
12
17cv1028-MMA (BLM)

1

alleging conspiracy and corruption among private individuals and public officials in

2

connection with the California vexatious litigation statute and court orders declaring

3

Plaintiffs vexatious litigants. Id.

4

2.

5

Legal Standard
“The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent

6

power to enter pre-filing orders against vexatious litigants.” Molski v. Evergreen Dynasty

7

Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). However, such orders are an extreme

8

remedy that should rarely be used. Id. (citing De Long v. Hennesy, 912 F.2d 1144, 1147

9

(9th Cir. 1990)). “A court should enter a pre-filing order constraining a litigant’s scope

10

of actions in future cases only after a cautious review of the pertinent circumstances.” Id.

11

at 1057.

12

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

13

litigant, a court must find that: (1) the plaintiff had notice of the motion and an

14

opportunity to be heard; (2) there was an adequate record for review showing that the

15

litigant’s activities were numerous and abusive; (3) the court has made substantive

16

findings as to the frivolousness or harassing nature of the litigant’s actions; and (4) the

17

order has an appropriate breadth and is narrowly tailored to fit the specific vice

18

encountered. Molski, 500 F.3d at 1057 (citing De Long, 912 F.2d at 1147-48).

19

“To determine whether the litigation is frivolous, district courts must look at both

20

the number and content of the filings as indicia of the frivolousness of the litigant’s

21

claims.” Ringgold-Lockhart, 761 F.3d at 1064 (internal quotations and citation omitted).

22

“[E]ven if [a litigant’s] petition is frivolous, the court [must] make a finding that the

23

number of complaints was inordinate.” Id. (quoting De Long, 912 F.2d at 1148). “As an

24

alternative to frivolousness, the district court may make an alternative finding that the

25

litigant’s filings ‘show a pattern of harassment.’” Id. (quoting De Long, 912 F.2d at

26

1148). “Finally, courts should consider whether other, less restrictive options, are

27

adequate to protect the court and parties.” Id. at 1064-65 (holding that the district court

28
13
17cv1028-MMA (BLM)

1

abused its discretion by failing to consider whether “imposing sanctions such as costs or

2

fees on the [plaintiffs] would have been an adequate deterrent”).

3

3.

Analysis

4

A.

5

The first De Long factor requires that the litigants be given notice and an

Notice

6

opportunity to be heard. See De Long, 912 F.2d at 1147. Plaintiffs concede that the first

7

factor is met. Vex. Oppo. at 8. Plaintiffs were served with Defendant’s “Motion to

8

Require Vexatious Litigant Plaintiffs to Obtain Court’s Permission for Further Filings or

9

Post Security” on July 7, 2017. See Doc. No. 4-9 at 2. Plaintiffs were given an

10

opportunity to, and did, file a response to Travelers’ motion. See Vex. Oppo. Thus, the

11

Court finds that the first De Long factor has been satisfied. See Molski, 500 F.3d at 1058-

12

59 (citing Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th

13

Cir. 2000)) (finding that opportunity to brief the issue was sufficient without providing an

14

oral or evidentiary hearing).

15

B.

16

The second De Long factor requires that the Court set forth an adequate record for

17

review, which lists “all the cases and motions that led the district court to conclude that a

18

vexatious litigant order was needed” and must at least “show, in some manner, that the

19

litigant’s activities were numerous or abusive.” De Long, 912 F.2d at 1147.

20

Adequate Record

Travelers contends this factor is satisfied because its request for judicial notice

21

includes 57 exhibits containing the relevant records for 17 cases relating to the 2007

22

remodel of the Maury Property filed in this Court or in state courts. Vex. Mtn at 16.

23

Travelers states that this list of cases and motions permit the Court to conclude that a

24

vexatious litigant order is needed. See id. Plaintiffs contend the second factor fails

25

because Travelers has “shown only a record of reasonable, albeit numerous litigation.”

26

Vex. Oppo. at 8. Travelers replies that the 17 lawsuits at least show that Plaintiffs

27

activities are numerous and abusive. See Vex. Reply at 3.

28
14
17cv1028-MMA (BLM)

1

The Court has reviewed each of the 17 cases relating to the Maury Property

2

remodel in 2007. These cases and their dispositions are listed below:

3

Case Number and Court
10cv1698-LAB (POR)
United States District Court for
the Southern District of California
2011-91919-CU-NP-CTL
San Diego Superior Court

4
5
6
7
8

37-2013-58680-CU-BC-CTL
San Diego Superior Court

9
10

37-2014-11015-CU-BC-CTL
San Diego Superior Court

Case Name
Bernier, et al. v.
Croteau, et al.

Disposition
Dismissed without prejudice via
Plaintiffs’ voluntary dismissal

[Jessie] Croteau,
et al. v. Bernier,
et al.
Bernier, et al. v.
Croteau and
Travelers
Bernier, et al. v.
Croteau, et al.

Bernier’s cross-complaint was
stricken and complaint settled
by Travelers
Judgment entered in favor of
Travelers for Plaintiffs failure to
post security
Complaint was stricken and
judgment entered in favor of
Defendants
Judgment entered in favor of
Plaintiffs

11
12

37-2015-38886-CU-NP-CTL
San Diego Superior Court

13
14
15

37-2007-76023
San Diego Superior Court

[Jessie] Croteau,
et al. v. Glenn T.
Rosen et al.
Bernier v. Jessie
Croteau, et al.

16
17
18
19

11cv78-JLS (RBB)
United States District Court for
the Southern District of California

20
21

37-2007-72488
San Diego Superior Court

22
23

37-2011-97681-CU-BC-CTL
San Diego Superior Court

Bernier v.
Travelers
Property
Casualty Ins. Co.,
Inc.
South Coast Pool
Plastering, Inc. v.
Bernier
Bernier v.
Freedman

24
25
26
27

37-2008-87054-CU-BC-CTL
San Diego Superior Court

Hans Croteau v.
Jessie Croteau
and ICS
Professional
Services

Judgment entered in favor of
Defendants on the complaint
and entered in favor of crossdefendant Bernier on the crosscomplaint
Travelers’ motion for summary
judgment was granted

Case settled and the Court
granted a stipulated judgment
against Bernier
Bernier dismissed the action
with prejudice because the case
settled
Hans awarded nothing and
Jessie awarded costs after trial

28
15
17cv1028-MMA (BLM)

1
2
3
4
5
6

37-2011-97017-CU-BC-CTL
San Diego Superior Court

Bernier v. Dearn

37-2011-97016
San Diego Superior Court

Bernier v. Royal
Electric, Inc.

37-2011-101949
San Diego Superior Court

Bernier v. Parker
Stanbury LLP

12-12593-MM13
U.S. Bankruptcy Court for the
Southern District of California
12-12593-MM13 Adversary
Proceedings
U.S. Bankruptcy Court for the
Southern District of California
37-2010-83059
San Diego Superior Court

In re Bernier

Bernier was declared a
vexatious litigant and required
to post security
Bernier deemed a vexatious
litigant and case dismissed with
prejudice
Demurrer sustained as to First
Amended Complaint without
leave to amend and judgment
entered in favor of Defendant
Dismissed without prejudice

In re Bernier

Dismissed without prejudice

7
8
9
10
11
12

16

Bernier v. Herron Summary Judgment granted in
favor of Defendants and case
dismissed
37-2011-102822
Bernier v.
Bernier voluntarily dismissed
San Diego Superior Court
Travelers, et al.
case without prejudice
Thus, an adequate record exists to support a vexatious litigant finding. See Pierce v. U.S.

17

Government, No. CV 16-8010-VAP (JEM), 2016 WL 6581156, at *2 (C.D. Cal. Nov. 7,

18

2016) (fifteen frivolous cases constituted adequate record).

13
14
15

Substantive Findings as to the Frivolous Nature of Plaintiffs’ Actions

19

C.

20

Under the third De Long factor, the Court must “look at both the number and

21

contents of the filings as indicia of the frivolousness of the litigant’s claims.” Molski,

22

500 F.3d at 1059 (citations and quotation marks omitted). “An injunction cannot issue

23

merely upon a showing of litigiousness. The plaintiff’s claims must not only be

24

numerous, but also patently without merit.” Id. (citations and quotation marks omitted).

25

“As an alternative to frivolousness, the district court may make an alternative finding that

26

the litigant’s filings ‘show a pattern of harassment.’” Ringgold-Lockhart, 761 F.3d at

27

1064 (quoting De Long, 912 F.2d at 1148).

28
16
17cv1028-MMA (BLM)

1

Travelers asserts that “the record clearly supports a substantive finding as to the

2

frivolous or harassing nature of Plaintiffs’ litigation history.” Vex. Mtn at 17. It claims

3

that each of the 18 lawsuits (including the instant action) make “baseless and exaggerated

4

claims of injuries,” which were mostly dismissed and “prompted at least two courts to

5

emphasize in their written decisions that Plaintiffs lacked all credibility.” Id. Further,

6

Travelers contends that this action should be dismissed because Plaintiffs have already

7

sued Travelers for the exact same grievances alleged in this case. Id. Thus, Travelers

8

concludes that “Plaintiffs’ claims exceed any notion of legitimacy and were made for the

9

purpose of coercing settlement.” Id. Plaintiffs contend that the fact they have “pled the

10

same set of facts is evidence they’re telling the truth.” Vex. Oppo. at 22-23.

11

Additionally, Plaintiffs assert that because Travelers was a defendant in only 3 of the 17

12

cases, it cannot use the other 14 cases to support its argument that Plaintiffs are vexatious

13

litigants. Id. at 24.

14

Plaintiffs can be declared vexatious litigants where the defendant in the current

15

action is not a defendant in prior actions. See Molski, 500 F.3d at 1059 (noting that

16

Molski filed numerous claims against numerous businesses). Further, Plaintiffs can be

17

declared vexatious litigants even if some of their claims have merit if their filings show a

18

pattern of harassment. Ringgold-Lockhart, 761 F.3d at 1064. Courts should “be careful

19

not to conclude that particular types of actions filed repetitiously are harassing, and must

20

instead discern whether the filing of several similar types of actions constitutes an intent

21

to harass the defendant or the court.” Id. (internal quotations, citations, and alterations

22

omitted). The Ninth Circuit has identified five factors courts should consider in

23

determining whether a party’s litigation qualifies as frivolous or harassing:

24
25
26
27

(1) the litigant’s history of litigation and in particular whether it entailed
vexatious, harassing or duplicative lawsuits; (2) the litigant’s motive in
pursuing the litigation, e.g., does the litigant have an objective good faith
expectation of prevailing?; (3) whether the litigant is represented by counsel;
(4) whether the litigant has caused needless expenses to other parties or has
posed an unnecessary burden on the courts and their personnel; and (5)

28
17
17cv1028-MMA (BLM)

1
2
3
4

whether other sanctions would be adequate to protect the courts and other
parties.
Id. at 1062.
Having considered these five factors, the Court concludes Plaintiffs are vexatious

5

litigants. The first and second factors weigh heavily in favor of declaring Plaintiffs

6

vexatious. Bernier has filed at least 15 lawsuits and Hans has filed at least 5 lawsuits, all

7

seeking monetary damages for alleged wrongs arising from the 2007 remodel of the

8

Maury Property or the following litigation that ensued. The San Diego Superior Court,

9

where majority of the cases were filed, found Plaintiffs to be vexatious litigants. See

10

Requests for Judicial Notice, Exhibits 1, 12, 17, 29, 32, 44, 45. Further, Plaintiffs were

11

found to lack credibility with respect to the factual scenario giving rise to these actions in

12

at least two cases. See Requests for Judicial Notice, Exhibits 19, 28. Additionally,

13

Plaintiffs’ settlement demand prior to filing this action illustrates the duplicative nature of

14

the lawsuit. Plaintiffs demanded $2,914,725 “in complete settlement of all our claims,”

15

including $1,400,000 from case 5860, $1,400,000 in interest since 2007, $50,000 in

16

attorneys’ fees and costs for case 58680 and case 11015, $60,000 in judgments Jessie and

17

ICS obtained against Plaintiffs in violation of the settlement from case 91919, and $4,725

18

“in damages to Hans’ capitalistic venture.” Doc. No. 4-2, Declaration of Joyce C. Wang

19

in Support of Travelers’ Motion to Require Vexatious Litigant Plaintiffs to Obtain

20

Court’s Permission for Further Filings or Post Security (“Wang Decl.”), Exhibit A.

21

Further, the similarities of the complaints filed by Bernier and Hans suggest to this

22

Court that Plaintiffs may be attempting to circumvent the outcome of Plaintiffs’ prior

23

cases and the California Superior Court’s order declaring Bernier a vexatious litigant with

24

respect to the Maury Property cases. See Loumena v. Kennedy, No. 15-CV-00951-LHK,

25

2015 WL 5963988, at *16 (N.D. Cal. Oct. 13, 2015) (noting that a vexatious litigant was

26

trying to circumvent orders declaring her a vexatious litigant by filing cases through the

27

plaintiff). This illustrates the harassing, vexatious, and duplicative nature of this action.

28
18
17cv1028-MMA (BLM)

1

Further, several of the prior cases explained that Plaintiffs had no probability of

2

prevailing on the merits of their actions.

3

The third factor asks the Court to consider whether Plaintiffs are pro se. Ringgold-

4

Lockhart, 761 F.3d at 1062. The record amply shows that Plaintiffs litigation has been

5

frivolous and harassing. In fact, Plaintiffs have frequently filed legal malpractice

6

lawsuits in an attempt to prove their cases have merit. See Requests for Judicial Notice,

7

Exhibits 25-26, 33-34, 37-40, 49-50. Plaintiffs concede that they “contacted numerous

8

attorneys to file the instant federal litigation[, but] were turned down due to the

9

convolutedness of said proposed federal litigation, [their] extensive litigation history, and

10

in some cases, the Court’s prior declarations that [they] had been declared to be . . .

11

vexatious litigant[s].” Vex. Oppo. at 34, 37. Further, “pro se litigants are not immune

12

from a vexatious litigation finding.” Sepehry-Fard v. Select Portfolio Servicing, Inc., No.

13

14-CV-05142-LHK, 2015 WL 1063070, at *11 (N.D. Cal. Mar. 10, 2015) (internal

14

quotation marks and citation omitted). Thus, the third factor weighs in favor of declaring

15

Plaintiffs vexatious litigants.

16

The fourth factor also weighs in favor of declaring Plaintiffs vexatious litigants.

17

Plaintiffs’ prior lawsuits have required Travelers and the Court to duplicate effort to

18

address similar claims before different judges. Indeed, one judge found that Bernier

19

“repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary

20

discovery, or engages in other tactics that are frivolous or solely intended to cause

21

unnecessary delay.” Requests for Judicial Notice, Exhibit 29 at 2. In the instant action,

22

Plaintiffs have filed roughly 1,500 pages of documents in support of their oppositions to

23

Travelers’ motion to dismiss and vexatious litigant motion. See Doc. Nos. 7, 8. Majority

24

of the exhibits, spanning over a thousand pages, evince Plaintiffs’ frivolous or harassing

25

practices. For example, in case 58680, Plaintiffs propounded 158 requests for production

26

of documents, 94 requests for admission, and 284 special interrogatories. Doc. No. 8 at

27

72-419. Thus, Plaintiffs have caused unnecessary expense to opposing parties and have

28

posed an unnecessary burden on the courts.
19
17cv1028-MMA (BLM)

1

The fifth and final factor also weighs in favor of declaring Plaintiffs vexatious

2

litigants. Based on the prior lawsuits and Plaintiffs’ attempts to file lawsuits in the San

3

Diego Superior Court notwithstanding being declared vexatious litigants, the court does

4

not believe that other sanctions would adequately protect the courts and prospective

5

defendants. See Ringgold-Lockhart, 761 F.3d at 1062.

6

Plaintiffs’ previous filings are numerous, harassing, meritless, and largely

7

duplicative or repetitive. In addition to the Court’s analysis above, the following

8

summaries of the 17 cases adequately demonstrate the frivolous and harassing nature of

9

Plaintiffs’ litigations:

10

1.

Case No. 37-2007-72488

11

On August 6, 2007, South Coast Pool Plastering, Inc. (“South Coast”) filed a

12

malicious prosecution action against Bernier (“case 72488”). Requests for Judicial

13

Notice, Exhibit 23. South Coast alleged that Bernier filed a lawsuit against it on March

14

9, 2007, which she knew lacked merit and filed for the improper purpose and desire to

15

annoy and wrong South Coast. Id. at 2. In that case, the court granted summary

16

judgment in favor of South Coast. Id. Case 72488 went to trial on August 11, 2008, but

17

the parties ultimately entered into a settlement agreement. South Coast Pool Plastering

18

Inc. v. Bernier, 37-2007-72488-CU-NP-CTL, Register of Actions nos. 80, 111 (Nov. 14,

19

2017), https://roa.sdcourt.ca.gov/roa/faces/CaseSearch.xhtml; Requests for Judicial

20

Notice, Exhibit 24. On November 17, 2009, the court found Bernier had breached the

21

settlement agreement and, pursuant to a stipulation for entry of judgment, entered

22

judgment against Bernier in the amount of $9,036.45. Requests for Judicial Notice,

23

Exhibit 24.

24
25

2.

Case No. 37-2007-76023

On October 1, 2007, Bernier filed a complaint against Jessie, ICS, and American

26

Contractors Indemnity Company for breach of an oral contract, recovery of compensation

27

paid to an unlicensed contractor, and claim on a contractor’s license bond (“case 76023”).

28

Requests for Judicial Notice, Exhibit 18. The alleged contract pertained to the Maury
20
17cv1028-MMA (BLM)

1

Property remodel. Id. Jessie, ICS, and the Indemnity Company filed a cross-complaint

2

against Bernier. See Requests for Judicial Notice, Exhibit 19 at 3. The case went to trial

3

on April 6, 2009, and the matter was submitted on April 16, 2009. Id. at 2. In a

4

statement of decision, Judge Nevitt found the key evidence and court’s findings as

5

follows:

6
7
8
9
10
11
12
13
14
15
16
17

During trial, the Court listened carefully to each witness, observed their
demeanor and weighed their credibility. The least credible witnesses were the
two individual parties, Ms. Bernier and Mr. [Jessie] Croteau. Each of them
lacked credibility. Observing the demeanor of Ms. Bernier and Mr. Croteau
on the witness stand, considering their testimony in light of the documentary
evidence and the testimony of other witnesses, and considering the
inconsistencies and, in some instances, the improbabilities, in their testimony,
the Court does not believe either of them.
Neither side established any cause of action. It is undisputed there was
some arrangement that caused remodeling work to be done at Ms. Bernier’s
house. However, neither side established what that arrangement was. The
two individuals who know what the arrangement was, Ms. Bernier and Mr.
Croteau, were not credible. The stories told by Ms. Bernier and Mr. Croteau
were both false. Mother and son each seemed to be trying to tell a more
convincing set of lies than the other one. Even considering the testimony of
third-party witnesses who were generally more credible than Ms. Bernier and
Mr. Croteau, the Court has been left to guess what the true arrangement was
that caused remodeling work to be done at Ms. Bernier’s house.

18
19

Id. at 2-3. Accordingly, Judge Nevitt entered judgment for defendants on the complaint

20

and for cross-defendant (Bernier) on the cross-complaint. Requests for Judicial Notice,

21

Exhibit 20 at 2.

22

3.

23

Case No. 37-2008-87054

On May 2, 2008, Hans filed a complaint for intentional misrepresentation and

24

breach of an employment contract against Jessie and ICS (“case 87054”). Requests for

25

Judicial Notice, Exhibit 27. In March of 2007, Hans allegedly contracted with Jessie to

26

perform construction related work on the Maury Property. Id. at 3. On May 2, 2007,

27

Hans allegedly severely injured his left foot while working. Id. Jessie and ICS allegedly

28

fraudulently told Hans there was no worker’s compensation insurance for his injury. Id.
21
17cv1028-MMA (BLM)

1

at 3-4. Thus, Hans paid for his own medical treatment. Id. Hans also alleged he was

2

owed past wages from Jessie. See generally, id. The court held a bench trial and, on

3

August 30, 2010, Judge Oberholtzer entered judgment awarding nothing to Hans and

4

awarded costs to Jessie. Requests for Judicial Notice, Exhibit 28. Judge Oberholtzer

5

summarized the proceedings as follows:

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The court, having heard the witnesses, reviewed admitted exhibits,
heard the testimony and, most importantly, assessed the credibility of the
witnesses, granted Jessie’s motion for judgment after Hans had rested.
Trial was to determine if Hans was owed past wages from Jessie. Hans
lived with the parties’ mother, Rejeanne Bernier, and had agreed with her any
work he did on a remodel of their house would be a credit on what he owed
to her. Jessie, a general contractor, would undertake the construction, and
agreed to credit his mother’s invoice for the work performed by Hans at $20
per hour.
Two issues were presented: (1) Was Hans an employee of Jessie’s
company or Jessie personally, and (2) how much credit should Bernier receive
for work performed by Jesse [sic] under the contract between Bernier and
Jessie.
Hans’ status as Jessie’s employee is pending before the Workers’
Compensation Appeals Board because of Hans’ application for benefits from
an injury at the work site. The court therefore abated this issue on its own
motion.
The court found no contract had been formed between Jessie and Hans,
but that each was performing on their respective contracts with Bernier. The
court further found Hans was a third-party beneficiary of the contract between
Jessie and Bernier, and could bring the breach of contract cause against Jessie
on that basis. However, in an earlier trial between Bernier and Jessie,
Rejeanne Bernier v. Jocelyn Gabrial Croteau, SDSC Case No. 2007-076023CTL, a court found Bernier and Jessie owed one another nothing from the
construction work and remodel, and judgment was entered accordingly.
Therefore, because no money was due to Jessie from Bernier, no credit could
be applied, and Hans’ suit enforcing that contract is barred.
The court found neither Hans nor Jessie to be reliable witnesses.
Id. at 1-2.
4.

Case No. 37-2010-00083059

On January 4, 2010, Bernier filed a complaint (“case 83059”) for legal malpractice
against Curtis Herron, Eugene Kinsey, Edward W. Freedman, and Eugene Kinsey, Inc.
22
17cv1028-MMA (BLM)

1

for their representation of Bernier in case 76023. Requests for Judicial Notice, Exhibit

2

39. The court granted Defendant Edward Freedman’s motion for summary judgment on

3

April 15, 2011, and found Bernier’s claims failed as a matter of law. Requests for

4

Judicial Notice, Exhibit 40. The court recorded judgment as follows for the remaining

5

defendants: “for Eugene E Kinsey Inc; Herron, Curtis; Kinsey, Eugene E and against

6

Bernier, Rejeanne for . . . a grand total of $0.00.” Bernier v. Herron, 37-2010-83059-

7

CU-PN-CTL, Register of Actions No. 217 (Nov. 14, 2017),

8

https://roa.sdcourt.ca.gov/roa/faces/CaseSearch.xhtml.

9
10

5.

Case No. 10cv1698-LAB (POR)

On August 12, 2010, Bernier and Hans initiated a civil rights action pursuant to 42

11

U.S.C. § 1983 (“case 1698”). Requests for Judicial Notice, Exhibit 1. Specifically,

12

Plaintiffs alleged “Ten (10) Counts of a Conspiracy to Violate plaintiffs’ Civil Rights,

13

and for a Declaratory Judgment that California’s Vexatious Litigant Statute be held

14

Unconstitutional under the First, and Fourteenth Amendments to the United States

15

Constitution.” Id. at 2. The allegations indicated that Jessie inspected and attempted to

16

repair air and water leaks in Bernier’s pool at the Maury Property. Id. at 12. In 2006 and

17

2007, Jessie also agreed to remodel the Maury property, including a room over the

18

garage, the exterior deck over the new room addition, expansion of the front entryway,

19

reorganization of the stairwell, expansion of the kitchen, and a backyard balcony on the

20

second story. Id. at 13. Jessie demolished and dumped the main roof of the property, and

21

then went on vacation in Mexico before completing the project. Id. at 14-15. While

22

Jessie was on vacation, the property sustained water damage from a rain storm. Id.

23

Thereafter, Jessie abandoned the project. Id. Hans alleges that he worked on the

24

remodeling project and was not paid for all of his work. Id. at 14. Subsequently,

25

Plaintiffs filed several lawsuits against several defendants. See generally, id. Plaintiffs

26

alleged that all private co-conspirator defendants wrongfully communicated to various

27

courts and agencies that Plaintiffs were vexatious litigants and/or were subject to pre-

28

filing orders. See id.
23
17cv1028-MMA (BLM)

1

Defendants filed a motion to strike the First Amended Complaint and a motion to

2

dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

3

Bernier, et al. v. Croteau, et al., No. 10cv1698-LAB (POR), Doc. Nos. 20, 26, 27, 30.

4

District Judge Larry A. Burns set a hearing date on both motions for November 29, 2010.

5

Id. On November 18, 2010, after briefing on the motions completed, Judge Burns

6

indicated that “the Court has serious concerns about the merits of Plaintiffs’ case,” took

7

the hearing date off calendar and stayed the motions pending further direction from the

8

Court. Id., Doc. No. 33. Thereafter, Plaintiffs filed a notice of voluntary dismissal

9

pursuant to Federal Rule of Civil Procedure 41. Id., Doc. No. 34. Judge Burns dismissed

10

the action with prejudice, despite that voluntary dismissals under Rule 41 are typically

11

without prejudice. Id., Doc. No. 35. In support, Judge Burns found Plaintiffs claims to

12

be meritless, noting that Plaintiffs have already been labeled as vexatious litigants in state

13

court. Id. Plaintiffs appealed and the Ninth Circuit vacated the dismissal, noting that it

14

should have been dismissed without prejudice. Id., Doc. No. 45.

15
16

6.

Case No. 11cv78-JLS (RBB)

This case (“case 78”) was removed to the United States District Court for the

17

Southern District of California on January 14, 2011. The following facts are taken from

18

District Judge Janis L. Sammartino’s order granting Defendant Travelers’ motion for

19

summary judgment:

20
21
22
23
24
25
26
27
28

It all started in the summer of 2007, after a heavy rain. Plaintiff
Rejeanne Bernier (“Bernier”) was in the middle of renovations to her home in
San Diego, where she lived with her son, Hans. These renovations were being
performed by her other son, Intervenor Jessie Croteau (“Jessie”), and his
construction company ICS Professional Services, Inc. (“ICS”). After the rain
storm, Bernier initiated a claim for rain damage with her insurer, Defendant
Travelers Property Casualty Insurance Co. (“Travelers”), a Connecticut
corporation headquartered in Hartford Connecticut. Travelers began
investigations to assess the extent and cause of the damage, under the claim
number UMZ7908. At some time during this investigation, Travelers had
conversations with Jessie regarding his knowledge of and potential
responsibility for the damage. Travelers’ investigation revealed some
evidence that damage had already been done prior to the rain incident, as well
24
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5
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11
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as questions about possible contributing factors to the damage—specifically,
that the property was roofless at the time of the rain storm due to incomplete
construction. Plaintiff alleges Travelers denied her rain incident claim, but
Travelers states it paid the claim to Bernier and further considered the idea of
seeking subrogation from Jessie and/or ICS, but ultimately decided not to do
so.
Fast forward to November 2009, past a few lawsuits between Bernier
and Jessie in state court to when Bernier filed another claim with Travelers
for damage to her home. It seems this claim arose out of the same “rain”
damage, but Bernier now had reason to believe the damage was actually
caused by “malicious mischief” or vandalism by Jessie. Travelers assigned
Bernier’s malicious mischief claim the number HAY7166. Bernier claims
Travelers failed to investigate this claim diligently, instead summarily
denying it with an “exact repetition” of the original denial. And here there is
no disagreement that Travelers denied this claim in a letter dated December
14, 2009.
On October 29, 2010, Bernier filed the instant breach of contract action
in San Diego Superior Court against Travelers and “Does 1 through 20” based
on the denial of this malicious mischief claim. The Complaint asserts three
causes of action under state law: (1) breach of contract; (2) breach of the
implied obligation of good faith and fair dealing (“bad faith”); and (3) breach
of contractual confidentiality. Under these theories, she seeks compensation
for Travelers’ failure to pay her second insurance claim, including future
construction costs, and for its alleged breach of confidentiality in divulging
her confidential information to Jessie. She further seeks damages for other
harm she incurred “in relation to this entire incident,” including attorney’s
fees, mental suffering and emotional distress, and punitive damages.
Travelers removed the case to this Court on January 14, 2011, asserting
jurisdiction based on diversity of citizenship. Since then, there have been
almost endless discovery disputes and other delays.

21
22

Bernier v. Travelers Property Casualty Insurance Company, Inc., No. 11cv78-JLS

23

(RBB), Doc. No. 78 at 2-3 (internal footnotes omitted). Judge Sammartino found that

24

Bernier’s breach of contract and bad faith claims under the Travelers Policy were

25

untimely and that she failed to give Travelers “immediate notice” of the loss as required

26

by the Policy. Id. at 23. Accordingly, the court found Bernier’s breach of contract and

27

bad faith claims barred as a matter of law. Id. The court also found Bernier’s breach of

28

confidentiality claim failed as a matter of law because Travelers’ policy did not contain
25
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1

any confidentiality provisions and Travelers did not reveal any personal or privileged

2

information. Id. at 22-25. Plaintiffs strongly disagree with the outcome of this case,

3

calling the order granting Traveler’s motion for summary judgment “factually incorrect,

4

inappropriate, condescending and spiteful.” Vex. Oppo. at 25. However, the Ninth

5

Circuit affirmed the Court’s decision to grant Travelers’ motion for summary judgment,

6

noting that there is “ample support in the record” supporting the district court’s decision.

7

Bernier v. Travelers Property Casualty Insurance Company, Inc., No. 11cv78-JLS

8

(RBB), Doc. No. 111 at 2.

9

7.

10

Case No. 37-2011-91919

On May 25, 2011, Jessie and ICS filed a complaint for malicious prosecution and

11

defamation against Bernier and Hans in the San Diego Superior Court. Requests for

12

Judicial Notice, Exhibit 6. Jessie and ICS alleged that they remodeled the Maury

13

Property in late 2006 and early 2007. See id. Thereafter, Bernier and Hans allegedly

14

filed several lawsuits against Jessie, ICS, and others, resulting in Jessie and ICS’

15

initiation of a malicious prosecution and defamation lawsuit against Bernier and Hans.

16

See id. Bernier filed a cross-complaint for malicious prosecution, elder abuse, indemnity

17

and contribution. See Requests for Judicial Notice, Exhibits 7-10. The court found that

18

Bernier could not show a probability of prevailing on the merits and cross-defendants’

19

demurrers were sustained without leave to amend. Id.; Requests for Judicial Notice,

20

Exhibit 30.

21
22

8.

Case No. 37-2011-97017

On August 29, 2011, Bernier filed a complaint for legal malpractice, breach of

23

fiduciary duty, breach of contract, fraud, and elder abuse against Alicia I. Dearn and the

24

Dearn Law Group, Inc (“case 97017”). Requests for Judicial Notice, Exhibit 29. Bernier

25

hired Ms. Dearn and the Dearn Law Group, Inc. to represent her in case 83059. Id. at 3.

26

“The gravamen of this lawsuit is legal malpractice against attorney Alicia Dearn that

27

represented plaintiff in an attorney malpractice [lawsuit] against other attorneys,

28

Freedman, Kinsey and Herron.” Requests for Judicial Notice, Exhibit 30. Bernier
26
17cv1028-MMA (BLM)

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specifically alleged that Alicia Dearn is responsible for the dismissal of the underlying

2

action against Freedman, Kinsey, and Herron. See Requests for Judicial Notice, Exhibit

3

29. On June 9, 2014, Judge Pressman found Bernier to be a vexatious litigant with no

4

reasonable probability of prevailing, stating that “plaintiff repeatedly files unmeritorious

5

motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other

6

tactics that are frivolous or solely intended to cause unnecessary delay.” Id. at 2.

7

Accordingly, Judge Pressman required Bernier to furnish security in the amount of

8

$100,000 and entered a pre-filing order prohibiting her from filing new litigation without

9

approval. Id. at 3. Judge Pressman concluded that “Plaintiff’s vexatious pattern of

10

litigation, including her attempts to delay the resolution of this matter by failing to

11

comply with discovery orders, bad-faith bankruptcy stays, improper court filings and

12

failure to appear at noticed hearings, warrant such an order.” Id.

13

Bernier moved for reconsideration of Judge Pressman’s order declaring her to be a

14

vexatious litigant. Requests for Judicial Notice, Exhibit 44. On reconsideration, Judge

15

Wohlfeil noted that “a litigant may be found vexatious for commencing five actions

16

(other than small claims) that have been finally determined adversely to the litigant in the

17

preceding years” and that Judge Pressman’s order identified seven cases. Id. at 2.

18

Accordingly, Judge Wohlfeil denied Bernier’s motion for reconsideration. Id.

19
20

9.

Case No. 37-2011-97016

On August 29, 2011, Bernier filed a complaint (“case 97016”) for breach of

21

contract, accounting, money had and received, and unjust enrichment against Royal

22

Electric, Inc. (“Royal”). Requests for Judicial Notice, Exhibit 31. Bernier alleged that

23

Royal was a subcontractor who was hired for electrical work on the 2007 remodel of the

24

Maury Property. Id. at 2-3. Royal and Bernier allegedly agreed to electrical work

25

amounting to $23,784 with a 29.32% deposit, which allegedly violates California

26

Business and Professions Code § 7159(d). Id. at 3. From August 17, 2007 until

27

September 5, 2007, Bernier alleged that Royal did not provide any electrical work on the

28

property. Id. On September 5, 2007, the general contractor (Jessie and ICS) abandoned
27
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the project. Id. As a result, Bernier prayed for return of the deposit (totaling $6,975),

2

plus interest. Id. at 6. On September 17, 2014, Judge Pressman noted that Bernier had

3

been deemed a vexatious litigant in case 97017, found no reasonable probability that

4

Bernier would prevail in this action as they were previously litigated in case 76023,

5

required Bernier to furnish security in the amount of $86,500 within 15 days of the

6

court’s order, and stayed the case until the security is posted. Requests for Judicial

7

Notice, Exhibit 32. The court dismissed the action with prejudice upon Bernier’s failure

8

to furnish security. Bernier v. Royal Electric, Inc., 37-2011-97016-CL-BC-CTL,

9

Register of Actions Nos. 127-33 (Nov. 14, 2017),

10
11
12

https://roa.sdcourt.ca.gov/roa/faces/CaseSearch.xhtml.
10.

Case No. 37-2011-00097681

On September 9, 2011, Bernier filed a legal malpractice complaint (“case 97681”)

13

against Edward W. Freedman, who represented her in the malicious prosecution action

14

brought by South Coast, case 72488. Requests for Judicial Notice, Exhibit 25.

15

Specifically, Bernier alleged that Mr. Freedman committed legal malpractice by not

16

advising her to tender the South Coast defense to Travelers under her policy with them.

17

Id. at 4. The case settled for $57,200. Requests for Judicial Notice, Exhibit 49. Mr.

18

Freedman explained that he had “numerous defenses,” but “opted to continue with

19

settlement negotiations as a more economic [sic] alternative than trying the case and

20

potentially having to handle an appeal and defend further cases.” Id. On August 14,

21

2012, Bernier filed a request for dismissal with prejudice. Requests for Judicial Notice,

22

Exhibits 26, 49; Vex. Mtn at 9.

23
24

11.

Case No. 37-2011-00101949

On April 9, 2012, Bernier filed an amended complaint for legal malpractice and

25

negligent infliction of emotional distress against Parker Stanbury, LLP (“case 101949”).

26

Requests for Judicial Notice, Exhibit 33. Bernier alleged that in September 2009, she

27

contracted with Prepaid Legal services, Inc. (“PPL”) for legal advice. Id. at 2. PPL

28

allegedly assigned Parker to provide Bernier with legal advice “concerning the
28
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entanglement of several pre-existing litigations related to plaintiff’s home improvement

2

disputes.” Id. at 2-3. Specifically, Bernier sought to pursue a malicious prosecution

3

action against Jessie and his former attorneys for the breach of contract action and a legal

4

malpractice action against her former attorneys, Freedman, Herron, and Kinsey. Id. at 4.

5

Parker referred Bernier to a professional malpractice attorney, Joseph M. Aliberti, who

6

filed suit against Freedman, Herron, and Kinsey on Bernier’s behalf. Id. Mr. Aliberti

7

declined to represent Bernier in a malicious prosecution action against Jessie. Id.

8

Bernier went back to Parker, who referred attorneys specializing in malicious

9

prosecution. Id. at 5. However, none of those attorneys wanted to handle Bernier’s

10

malicious prosecution action. Id. Bernier alleges that none of the attorneys she spoke to

11

informed her that she had only one year to sue Jessie’s former attorneys and two years to

12

sue all anticipated defendants to her malicious prosecution action. Id. On May 26, 2011,

13

Jessie sued Bernier for malicious prosecution and Bernier cross-complained against

14

Jessie and his former attorneys. Id. On November 4, 2011, the court granted Jessie’s

15

former attorneys’ demurrer to Bernier’s malicious prosecution cross-complaint based

16

upon the one year statute of limitations. Id. Accordingly, Bernier sought damages for the

17

failure of counsel to properly advise her about the statute of limitations. See generally,

18

id. On September 28, 2012, Judge Lewis sustained Parker’s demurrer without leave to

19

amend and entered judgment against Bernier. Requests for Judicial Notice, Exhibit 34.

20
21

12.

Case No. 37-2011-00102822

On August 30, 2012, Bernier filed a second amended complaint for breach of

22

insurance contract, breach of the implied covenant of good faith and fair dealing, breach

23

of implied warranty, negligence, and disgorgement against Travelers and several

24

contractors for the 2007 Maury Property remodel—Fred Charles Barnhart, Michael

25

Maung, and Daniel Clifford Niemira (“case 102822”). Requests for Judicial Notice,

26

Exhibit 41. Bernier alleged that Travelers was required to indemnify her for the rain

27

damage to the Maury Property. Id. at 4. Bernier’s civil engineer reported that the

28

damage was the direct result of storm damage and indicated that there was damage to the
29
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stucco of her home. Id. at 5. Travelers then denied Bernier’s claim because damage to

2

the stucco was not covered by the policy. Id. Bernier argued the damage was separate

3

and underneath the stucco and, therefore, covered by the policy. Id. Travelers also

4

denied Bernier’s claim on the grounds that the home was in an “unfinished condition.”

5

Id. Bernier alleged that Travelers failed to continue its obligations in good faith and to

6

fully consider all facts and information and accept Bernier’s claim. Id. In September

7

2011, Travelers refused, allegedly in bad faith, to renew Bernier’s property insurance

8

policy due to the unrepaired damage to the Maury Property. Id.

9

Travelers filed a demurrer and motion to strike the punitive damages sought in the

10

second amended complaint. See Requests for Judicial Notice, Exhibit 45. Three days

11

prior to the hearing on the motions, Bernier requested the case be dismissed without

12

prejudice as to Travelers only. Id. On May 6, 2014, the court dismissed the second

13

amended complaint without prejudice as to Travelers. Id.; Requests for Judicial Notice,

14

Exhibit 45. On March 4, 2015, the court granted Bernier’s request to dismiss without

15

prejudice the amended complaint as to Niemira. Bernier v. Travelers Property Casualty

16

Insurance Company, Inc., 37-2011-102822-CU-BC-CTL, Register of Actions nos. 333-

17

34 (Nov. 14, 2017), https://roa.sdcourt.ca.gov/roa/faces/CaseSearch.xhtml. On March 6,

18

2015, judgment was entered in favor of Bernier by way of default against Barnhart for

19

$195131.22 and against Maung for $26,850.20. Id., Register of Actions nos. 335-41.

20
21

13.

Case No. 12-12593-MM13 Adversary Proceedings re Stay

On September 13, 2012, Bernier filed a voluntary Chapter 13 Bankruptcy petition

22

in the United States Bankruptcy District Court for the Southern District of California.

23

See Requests for Judicial Notice, Exhibit 52. The Bankruptcy Court issued an automatic

24

stay of all Bernier’s pending cases. See id. On October 5, 2012, Jessie and ICS filed for

25

relief from the automatic stay entered pursuant to Bernier’s filing for Bankruptcy. Id.

26

On December 11, 2012, the Bankruptcy Court explained at a hearing that it would grant

27

the motion, stating that “it’s a positive outcome for the estate. . . . because this

28

bankruptcy estate is being benefited by the elimination of a significant claim against it
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because it’s being paid by the insurance.” Requests for Judicial Notice, Exhibits 53 at 6-

2

8, 54. On December 17, 2012, Bernier commenced adversary proceedings for Jessie’s,

3

ICS’, and Travelers’ violation of an automatic stay relating to claims against Travelers

4

for wrongfully settling case 91919. Requests for Judicial Notice, Exhibit 35.

5

On December 20, 2012, the Bankruptcy Court granted Jessie and ICS’ motion for

6

relief from the automatic stay. Request for Judicial Notice, Exhibit 54. Bernier filed an

7

emergency ex parte motion and objection to the Court’s order for relief from the stay,

8

requesting the court delay the effect of the order until a hearing on Bernier’s motion for

9

stay pending appeal. See Requests for Judicial Notice, Exhibit 55 at 1. On December 21,

10

2012, the Bankruptcy Court found no good cause to delay the order granting relief from

11

the stay and denied Bernier’s ex parte motion. Id. at 2-3. On March 21, 2013, the

12

Bankruptcy Court dismissed the case without prejudice. Requests for Judicial Notice,

13

Exhibit 36.

14

14.

Case No. 12-12593-MM13 Adversary Proceedings re Attorney Fees

15

On January 7, 2013, Bernier commenced adversary proceedings for disgorgement

16

of attorney’s fees, legal malpractice, and breach of fiduciary duty against Derik Roy and

17

Roylaw P.C. relating to case 97681, her Chapter 13 bankruptcy petition, and other cases.

18

Requests for Judicial Notice, Exhibit 37. Specifically, Bernier alleged that she retained

19

attorneys Roylaw, P.C. and Derik Roy to file and maintain a Chapter 13 bankruptcy

20

petition with the United States Bankruptcy Court for the Southern District of California

21

and paid them $6,600 to do so. Id. at 3. Bernier alleged that her attorneys advised her to

22

lose all of her state court litigations. Id. at 4. Additionally, Mr. Roy failed to oppose, and

23

instead authorized without her consent, disputed creditors Jessie and ICS’ motion for

24

relief from the automatic bankruptcy stay in order to consummate a settlement between

25

them and Travelers. Id. Bernier alleged this constituted legal malpractice and breach of

26

fiduciary duties owed to her by Mr. Roy and Roylaw P.C. Id. Accordingly, Bernier

27

sought disgorgement of the $6,600 she paid Mr. Roy and Roylaw P.C. to file and

28

maintain the bankruptcy petition and additional monetary damages. Id. On May 7, 2013,
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the Bankruptcy Court dismissed the case without prejudice, dismissed all related

2

adversary proceedings that were then pending, and vacated any stays that were then in

3

effect. Requests for Judicial Notice, Exhibit 38.

4
5

15.

Case No. 37-2013-00058680

On March 6, 2014, Bernier and Hans filed a First Amended Complaint against

6

Jessie, ICS, Travelers, and Does 1 through 100 in the San Diego Superior Court.

7

Requests for Judicial Notice, Exhibit 11. Plaintiffs alleged breach of contract, breach of

8

the implied covenant of good faith and fair dealing, and sought declaratory judgment and

9

to set aside a judgment obtained by extrinsic fraud from case 76023. Id. Plaintiffs

10

alleged that the judgment was procured by extrinsic fraud and “caused and continues to

11

cause severe inequity in Bernier’s pending related cases which all stem from the facts of

12

this same Construction Case.” Id. at 5. Specifically, Plaintiffs allege that in 2005, Jessie

13

recommended a swimming pool contractor to repair Bernier’s swimming pool. Id. The

14

recommended contractor’s work was substandard and Jessie tried to repair Bernier’s

15

swimming pool and wrote a surety bond report to claim that pool’s contractor’s surety on

16

behalf of Bernier. Id. This triggered an interpleader lawsuit (referenced in case 72488)

17

and Bernier cross-complained against the recommended pool contractor. Id. Plaintiffs

18

then summarize all the lawsuits previously summarized in this order. Plaintiffs also

19

summarized additional lawsuits as follows:

20

Plaintiffs alleged that Jessie and ICS sued their insurer on September 18, 2009 for

21

failure to defend them in the construction case. Id. The case allegedly settled and Jessie

22

received at least $75,000. Id.

23

On March 5, 2012, Jessie and ICS threatened to, and eventually did, file a

24

complaint in intervention in each of Bernier’s proceedings. Id. at 13. Bernier alleged

25

that Jessie and ICS contacted the insured parties opposing Bernier in each of her cases

26

with an offer to join Jessie’s “attack” on Plaintiffs, including the following cases: (1) case

27

102822; (2) case 97681; (3) case 97017; and (4) case 97016. Id. 13-14. Bernier also

28

explained that, at the time of filing the complaint, she still had the following pending
32
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1

matters: (1) a small claims disgorgement lawsuit against her first bankruptcy attorney; (2)

2

a Ninth Circuit appeal in her original case against Travelers; and (3) an appeal before the

3

California Court of Appeal in the malicious prosecution action. Id. at 14. Also in 2011,

4

Plaintiff Bernier sued Travelers for breach of insurance contract and bad faith (case 78).

5

Id. at 12.

6

On March 21, 2013, Bernier filed a claim with Jessie’s and ICS’ insurance

7

company, UCIC, for damages caused by ICS’ improper installation of her property’s

8

sewer in 2007. Id. UCIC denied Bernier’s claim based on the “corrupt” vexatious

9

litigant judgment. Id at 16.

10

During the bankruptcy stay on January 16, 2014, Jessie alleged that Hans

11

vandalized his property and obtained a temporary restraining order against Hans. Id.

12

Jessie also charged Hans for the clean-up bill and summoned him to defend “this

13

purported domestic violence accusation in Family Court.” Id.

14

On January 30, 2015, Judge Strauss filed tentative rulings on Travelers’ motion to

15

declare Plaintiffs as vexatious litigants and to post security, or in the alternative, to

16

dismiss the first amended complaint in case 58680. Requests for Judicial Notice, Exhibit

17

12. Judge Strauss tentatively granted the motion, finding Plaintiffs are vexatious litigants

18

under California Code of Civil Procedure § 391(b)(1) and “that there is no reasonable

19

probability that Plaintiffs will prevail on their claims for breach of contract, breach of

20

implied covenant of good faith and fair dealing, and/or declaratory relief.” Id.

21

Specifically, Judge Strauss found that:

22
23
24
25
26
27
28

[t]o the extent that Plaintiffs’ claims are based on Defendant’s [Travelers’]
settlement of [case 91919] under the policy Defendant had the right to settle
any claim or suit it decided was appropriate up to policy limits without
Plaintiffs’ consent. . . . To the extent that Plaintiffs’ claims are based on the
failure to provide a defense to Plaintiff(s) in earlier actions (Superior Court
Case Nos. 2007-76023 and 2007-72488) a duty to defend does not arise until
there is a tender of defense by the insured. . . . Thus, Defendant had no
obligation or duty to defend Plaintiffs in those cases. . . . To the extent that
Plaintiffs base their claims on Defendant’s decision not to renew Plaintiffs’
policy, the insurer has no obligation to renew a policy of insurance. . . . To
33
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1
2
3
4

the extent that Plaintiffs’ claims are based on Defendant’s denial of the
malicious mischief claim it is barred by res judicata/collateral estoppel as it
was previously litigated in Bernier v. Travelers Prop. Cas. Ins. Co., Inc. (Case
No. 11-CV-78 JLS (RBB)), and summary judgment was granted in favor of
Defendant.

5

Id. (internal citations omitted). Judge Strauss required Plaintiffs to each furnish security,

6

which they failed to do. Accordingly, judgment was entered in favor of Jessie, ICS, and

7

Travelers. Requests for Judicial Notice, Exhibit 13.

8

16.

Case No. 37-2014-00011015

9

On April 10, 2014, Bernier and Hans filed a complaint against Jessie, ICS, Patrick

10

Howe, and Does 1 through 10, alleging breach of contract (“case 11015”). Requests for

11

Judicial Notice, Exhibit 14. Plaintiffs, who were defended by Travelers in case 91919,

12

allege that Jessie and ICS filed the malicious prosecution case arising out of issues with

13

the 2007 remodel of the Maury Property. See generally, id. On December 24, 2012,

14

Jessie, ICS, and Travelers confidentially contracted to settle case 91919, in which Jessie

15

and ICS agreed to waive liability for all potential claims they had or might have against

16

Plaintiffs based on events occurring prior to the contract. Id. at 5. Jessie and ICS also

17

allegedly agreed to not “collaborate with, assist, encourage, promote, aid, or file further

18

actions against Bernier and H[ans] based on any conduct preceding the date of execution

19

of the Confidential Contract,” and waived any and all future claims against Plaintiffs

20

based upon any pending or future actions. Id. Plaintiffs alleged that Jessie, ICS, Howe,

21

and Does 1 through 10 breached the confidential contract in three court actions: (1)

22

Bernier’s bankruptcy dismissal and dismissal following re-filing for bankruptcy; (2)

23

revealing the confidential contract in a civil case which was then pending on appeal; and

24

(3) the domestic violence action asserted by Jessie against Hans. Id. at 6-7. The Court

25

struck Plaintiffs’ complaint and entered judgment in favor of Jessie, ICS, and Mr. Howe.

26
27
28

17.

Case No. 37-2015-00038886

On November 19, 2015, Jessie and ICS filed suit (“case 38886”) against Glenn T.
Rosen, the Rosen Law Firm, and Does 1 through 20 for malicious prosecution in
34
17cv1028-MMA (BLM)

1

representing Plaintiffs in cases 11015 and 58680. Requests for Judicial Notice, Exhibit

2

16. Hans attempted to intervene, but the court denied his request because he is a

3

vexatious litigant. Requests for Judicial Notice, Exhibit 17. The case went to trial, and

4

on November 3, 2017, judgment was entered for Jessie and ICS against Glenn Rosen and

5

the Rosen Law Firm for a total amount of $529,384.84. Croteau v. Rosen, 37-2015-

6

38886-CU-NP-CTL, Register of Actions no. 190 (Nov. 13, 2017),

7

https://roa.sdcourt.ca.gov/roa/faces/CaseSearch.xhtml.

8

D.

9

“[P]re-filing orders must be narrowly tailored to the vexatious litigant’s wrongful

10

behavior.” Ringgold-Lockhart, 761 F.3d at 1066 (internal quotation marks and citation

11

omitted). A narrowly tailored order should restrain the “plaintiff[s] from filing only the

12

type of claims [they] had been filing vexatiously.” Id. (internal quotation marks and

13

citation omitted); see also Molski, 500 F.3d at 1061. Further, “[w]hile no federal statute

14

authorizes security for costs, the District Courts may make their own rules not

15

inconsistent with the Federal Rules of Civil Procedure.” Russell v. Cunningham, 233

16

F.2d 806, 811 (9th Cir. 1956) (citing Fed. R. Civ. P. 83). The Southern District of

17

California’s Civil Local Rule 65.1.2(a) permits the Court “upon demand of any party,

18

where authorized by law and for good cause shown, require any party to furnish security

19

for costs which may be awarded against such party in an amount and on such terms as are

20

appropriate.” S.D. Cal. Civ. L.R. 65.1.2(a); see also Montserrat Overseas Holdings, S.A.

21

v. Larsen, 709 F.2d 22, 24 (9th Cir. 1983) (holding that a district court did not abuse its

22

discretion in ordering litigant to post security bond under local rules).

23

Narrowly Tailored Order

Here, Travelers requests the Court require Plaintiffs to obtain the Court’s

24

permission to “file any further pleadings pertaining only to the Travelers policy” or

25

require “Plaintiffs to [each] furnish $50,000 security for being allowed to proceed with

26

this action only.” Vex. Mtn at 18; Vex. Reply at 7. Counsel for Travelers, Joyce C.

27

Wang of Carlson, Calladine & Peterson LLP (“CCP”), declares that “[a]s of July 7, 2017,

28

CCP has incurred more than $50,000 in billed and unbilled (work in progress) attorneys’
35
17cv1028-MMA (BLM)

1

fees and costs defending this case” related to the motion to dismiss, vexatious litigant

2

motion, and in reviewing Plaintiffs’ prior litigation files. Wang Decl. at 1-3. Ms. Wang

3

also anticipates “that [her] client will incur substantially more than $50,000 in additional

4

attorneys’ fees and costs to litigate and try this case, which will include: (1) a motion for

5

judgment on the pleadings; (2) a motion for summary judgment; (3) depositions of

6

Bernier and Croteau; (4) trial preparation; and (5) trial.” Id. at 3-4. Travelers states that

7

this is narrowly tailored because it only impacts Plaintiffs’ ability to proceed with the

8

instant action. Vex. Mtn at 18.

9

The Court agrees that this is narrowly tailored and enjoins Plaintiffs from filing

10

any new action in the United States District Court for the Southern District of California

11

which pertain to Travelers policy no. 976025623 without first obtaining leave of the

12

Court. In addition, the Court requires Plaintiffs to each post a bond in the amount of

13

$50,000 to be applied toward the fees and costs incurred by Travelers should the instant

14

lawsuit proceed and Travelers’ prevail, or to be returned to Plaintiffs should they prevail.

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CONCLUSION

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Based on the foregoing, the Court GRANTS IN PART AND DENIES IN PART
Travelers’ motion to dismiss as follows:
1.

The Court DENIES Travelers’ motion to dismiss Plaintiffs’ improper

settlement claims; and
2.

GRANTS Travelers’ motion to dismiss and DISMISSES Plaintiffs’ failure

to defend claims without leave to amend.
Additionally, the Court GRANTS Travelers’ motion re: vexatious litigants as

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follows:

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1.

The Clerk of this Court may not file or accept any further complaints filed

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by or on behalf of Plaintiffs Rejeanne Bernier or Hans Croteau which pertain to Travelers

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Property Casualty Insurance Company Policy no. 976025623. If Plaintiffs wish to file a

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complaint, they must provide the court with an application for the pre-filing order, which

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must be supported by a declaration from Plaintiffs made under penalty of perjury that: (a)
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17cv1028-MMA (BLM)

1

they have not previously brought a lawsuit arising out of the same set of facts or the same

2

transactional nucleus of facts asserted in the new complaint or, if they have previously

3

brought such a lawsuit, the claims asserted in that lawsuit were not previously dismissed

4

with prejudice; (b) that the claims they seek to assert are neither frivolous nor brought in

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bad faith; and (c) that prior to filing they conducted a reasonable investigation of the facts

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and law, and that they support their claims. Plaintiffs must also attach a copy of this

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Order to the application. The Clerk shall then forward the complaint, letter, and copy of

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this Order to a reviewing Judge for a determination of whether the complaint should be

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accepted for filing. Any violation of this Order will expose Plaintiffs to a contempt

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hearing and appropriate sanctions, and any action filed in violation of this Order will be

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subject to dismissal. If the Court does not grant permission to file the document, in

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writing, within 30 days of the date of the letter, permission will be deemed denied;

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2.

IT IS FURTHER ORDERED that Plaintiffs each post a bond in the

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amount of $50,000 on or before January 5, 2018 to be applied toward the fees and costs

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incurred by Travelers should the instant lawsuit proceed and Travelers prevail, or to be

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returned to Plaintiffs should they prevail. If no bond is posted by that date, this action

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will be dismissed; and
The matter is STAYED pending Plaintiffs’ posting of bond.

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3.

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IT IS SO ORDERED.

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Dated: November 29, 2017

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17cv1028-MMA (BLM)