BC492600

Tentative Ruling: Vexatious litigant motion is granted; Remaining motions are moot

Plaintiff Susana Chavez filed this employment action against Defendant YKK USA Inc. Defendant now moves for relief under CCP §§391 et seq., the vexatious litigant statutes. In connection with the motion, the parties request judicial notice of various filings and orders in other cases; all RJNs are granted.

Defendant moves for relief under the vexatious litigant statutes on the ground that Plaintiff’s action is being controlled and directed by Randall Pittman, an individual who has been declared a vexatious litigant under §391.7. Defendant contends that Pittman, who requires court approval under §391.7(c) to bring his own litigation, is using Plaintiff as a proxy or puppet to pursue this action in violation of the vexatious litigant statutes. See In re Kinney (2011) 201 Cal.App.4th 951. Defendant seeks dismissal or a bond pursuant to §391.3. Dismissal is only available when a vexatious litigant is represented by an attorney at the time of filing; see §391.3(b). Because those circumstances are not present here, the Court will consider only whether Defendant is entitled to a bond under §391.3(a).

Pittman is a Vexatious Litigant –
The first requirement is proof that Pittman is a vexatious litigant. Defendant has shown that Pittman was formally declared to be a vexatious litigant on 5/28/10 in BC410261. The order states that “Randall Pittman is declared to be a vexatious litigant pursuant to California Code of Civil Procedure Section 391(b)” and that Pittman is prohibited from filing any new litigation without pre-filing approval of the presiding judge. The Court also takes judicial notice that Pittman is currently included as a vexatious litigant on the statewide list maintained by the Judicial Council pursuant to §391.7(f).

Plaintiff argues that the order in BC410261 has been vacated. That argument is wrong. The Court takes judicial notice of the record in BC410261, which shows that Pittman appealed the 5/28/10 order and his appeal was dismissed by the Court of Appeal on 3/10/11 in B229040, and the 5/28/10 order remains in full force and effect. Defendant has shown that Pittman is a vexatious litigant.

Pittman is Controlling Plaintiff’s Litigation –
The next requirement is proof that Pittman is controlling this action and is using Plaintiff as a proxy or puppet to pursue the action in violation of the vexatious litigant statutes.

The vexatious litigant statutes “address the problem created by the persistent and obsessive litigant who constantly has pending a number of groundless actions and whose conduct causes serious financial results to the unfortunate objects of his or her attacks and places an unreasonable burden on the courts.” Morton v. Wagner (2007) 156 Cal.App.4th 963, 970–971. Ordinarily the vexatious litigant statutes apply to individuals who represent themselves in pro per, but the statutes also apply to individuals who use another person to control or direct litigation. See §391(d) (person who “causes” litigation). The Court of Appeal has held that the statutes apply to a vexatious litigant who controls litigation by using a sham attorney. See In re Shieh (1993) 17 Cal.App.4th 1154, 1167. And in In re Kinney, supra 201 Cal.App.4th at 959, the Court of Appeal held that the statutes apply to a vexatious litigant who was controlling litigation through the use of a nominal plaintiff who was acting as a “strawman” or “puppet.”

The holding in In re Kinney applies here. Defendant has shown that Pittman is controlling and directing this litigation, by using Plaintiff as a puppet or strawman to pursue an action that would otherwise require pre-filing approval pursuant to §391.7(f).

This action was filed on 2/24/12 by Plaintiff, representing herself in pro per. Throughout the litigation, Pittman has ghostwritten Plaintiff’s papers and advised her as to how she should proceed. Plaintiff has admitted this in her deposition, and it has been obvious from the court proceedings. Pittman has always accompanied Plaintiff to court and has attempted to speak on her behalf during court hearings. The Court has ordered that Pittman must remain in the audience area and that Plaintiff must speak for herself. Plaintiff has nevertheless relied continually upon Pittman, turning to him in court for signals or prompts. Plaintiff does not act independently but relies entirely upon Pittman for direction.

Pittman has attempted to evade the Court’s order for Plaintiff to speak for herself in court. On 11/20/13 in this Court’s absence, Plaintiff submitted an ADA accommodation request which was granted by another judge. The order permitted Plaintiff to be accompanied and assisted in court by an unnamed person, to accommodate Plaintiff’s anxiety. The “unnamed person” proved to be Pittman, who appeared with Plaintiff at an ex parte hearing on 12/5/13. The Court vacated the ADA determination and once again ordered Pittman to refrain from representing Plaintiff in the courtroom.

Pittman has also attempted to inject himself into the case as a party. On 3/14/13 Pittman filed a notice that he was joining the case as a plaintiff intervenor to pursue PAGA claims against Defendant; this was never brought as a motion, and the Court never recognized Pittman as an intervenor. On 11/27/13 Pittman was added as a Doe party, which he and Plaintiff erroneously believed to grant status as a plaintiff. And on 12/5/13 Pittman filed a preemptory challenge against the Court pursuant to CCP §170.6, which was later denied.

For a short time Plaintiff was represented by an attorney, but the attorney withdrew because of Pittman’s interference. On 7/11/13 Barbara Figari substituted as counsel for Plaintiff, but on 11/5/13 she made an ex parte application to be relieved as counsel immediately. Figari presented a declaration which stated that Plaintiff “is continually guided by a third party, Randall Pittman.” Figari described Pittman as advising Plaintiff on legal matters, calling defense counsel on Plaintiff’s behalf, and continually undermining Figari’s efforts to represent Plaintiff as her attorney. The Court denied the application without prejudice, directing Figari to file a noticed motion, and on 11/8/13 Plaintiff filed a substitution of counsel form which relieved Figari and resumed Plaintiff’s pro per status.

Defendant has also shown that Pittman is pursuing this action as part of his own personal campaign of harassment. Pittman himself unsuccessfully sued Defendant in BC374571 and BC442302; he unsuccessfully sued Defendant’s attorneys in BC442302. And on Plaintiff’s behalf Pittman has filed administrative complaints against Defendant before the Labor Commissioner, Labor & Workforce Development Agency, Dept. of Fair Employment & Housing, and Natl. Labor Relations Board.

Throughout this litigation, the Court has warned Plaintiff repeatedly that she is acting against her own interests by involving Pittman in her case, and that she should obtain independent legal advice. Defendant has now presented evidence which shows convincingly that Pittman was not merely involved in Plaintiff’s case – he has been controlling and directing the entire litigation.

Plaintiff Has No Reasonable Probability of Success –
The final requirement under §391.3(a) is proof that there is “no reasonable probability that the plaintiff will prevail in the litigation”. Plaintiff has agreed to dismiss all causes of action except the 1st COA for PAGA penalties under Lab. Code §2698 et seq., so the determination of merit focuses only on that claim.

Defendant has shown that 1) Plaintiff’s complaint with the Labor and Workforce Development Agency failed to adequately define “aggrieved employees”; 2) Plaintiff is basing her PAGA claim on Labor Code violations that do not provide for penalties; and 3) Plaintiff was an outside sales person who was terminated for good cause and is not owed any wages. Plaintiff has failed to address any of these arguments. Plaintiff merely argues that the Court previously denied Defendant’s demur on the ground that the PAGA claim is barred by the statute of limitations. Plaintiff has ignored the remaining arguments and has not disputed Defendant’s showing that her PAGA claim has no merit.

Ruling –
Defendant has established the requirements of §391.3(a): Pittman is a vexatious litigant, Pittman is controlling Plaintiff’s litigation, and Plaintiff’s claims have no reasonable probability of success. Defendant has also shown that it has incurred approximately $85,000 in defense costs and will incur substantially more if this case moves forward.

The Court therefore orders Plaintiff to post a bond or other security in an amount no less than $100,000 within 30 days. The case remains stayed, and if security is not posted it will be dismissed pursuant to §391.4. The remaining motions are moot.