2015-00186923-CU-FR

Daniel Gonzalez vs. California State Automobile Association

Nature of Proceeding: Hearing on Demurrer to the 1st Amended Complaint

Filed By: Gerlt-Ferraro, Mariel

If oral argument is requested, it will be heard at 2:00 pm on Monday, April 2, 2018 in this department.

Defendants JP Morgan Chase Bank, N.A. (DOE 6) and HSBC Bank, N.A.’s (DOE 5) Demurrer to the plaintiff Daniel Gonzalez’s First Amended Complaint is STAYED. The entire action is ordered STAYED until plaintiff obtains leave from the presiding Judge to proceed.

California Code of Civil Procedure § 391.7 provides, in pertinent part, that the court may “enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed.”

On March 1, 2016, in Gonzalez v. Kitay, Sacramento Superior Court case no. 2012-134527, this Court, per Judge Raymond Cadei (Ret.) declared that Daniel Gonzalez is a vexatious litigant.

At that time, Defendant’s request for a pre-filing order was granted. The Court ordered that Mr. Gonzalez may not file any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. CCP section 391.7.

Although the original complaint in this action was filed on Nov. 18, 2015, a date prior to the Court’s finding that plaintiff is a vexatious litigant, the plaintiff has since then filed a First Amended Complaint on Jan. 8, 2018, naming 17 Doe defendants and adding wholly new allegations and causes of action and is thus required to obtain a prefiling order. Indeed, it bears noting that an amended complaint supersedes the original and furnishes the sole basis for the cause(s) of action. The original complaint is dropped out of the case and ceases to have any effect as a pleading. see, Anmaco, Inc. v. Bohlken (1993) 13 Cal. App. 4th 891, 901. There is but one complaint in a civil action. State Compensation Ins. fund. Superior Court (2010) 184 Cal. App. 4th 1124, 1129-1131. It would appear to follow, therefore, that the filing of the new amended complaint triggers the requirement of a prefiling order.

The Court file in this action does not reflect that leave of the Presiding Judge of the Sacramento Superior Court where the litigation is filed has been obtained. CCP section 391.7.

On March 2, 2018, in this action, Defendants JP Morgan Chase Bank, N.A. (DOE 6) and HSBC Bank, N.A. (DOE 5) filed a Notice Of Plaintiff’s Status As A Vexatious Litigant Subject To A Prefiling Order And Notice Regarding Automatic Dismissal Under CCP 391.7.

Pursuant to Code of Civil Procedure section 391.7(c), the litigation “shall be

automatically dismissed” within 10 days of the filing of that notice unless Plaintiff obtains an order from the presiding judge of the Sacramento County Superior Court permitting the filing of the First Amended Complaint. (Civ. Proc. § 391.7(c).)

Self-represented plaintiff must file and serve his motion for leave to proceed with the Presiding Judge of this Court in Dept. 47, not later than Monday, April 9, 2018.

Further, the litigation is automatically stayed until 10 days after defendants are served with a copy of the signed prefiling order by the plaintiff Daniel E. Gonzalez.