2016-00195189-CU-MM

Joshua Neil Harrell vs. CCHCS

Nature of Proceeding: Motion to Dismiss

Filed By: Harrell, Joshua N.

This matter will be heard by Judge Brown at the beginning of the calendar.

Oral argument will be heard on October 1, 2018 at 2:00 p.m. in Department 53.

Defendant California Correctional Health Care Services’ Motion to Dismiss for failure of defendant to post the required security after having been declared a vexatious litigant is granted. CCP 391.4.

The Court grants the plaintiff’s request to appear by telephone, for today’s hearing in Department 53. Legal Officer D. Mercado shall have Mr. Harrell available by telephone on October 1, 2018 at 2:00 p.m. Mr. Harrell shall call Courtcall (888-88-COURT) prior to the October 1, 2018 hearing date and set up his appearance with Courtcall. In addition, Mr. Harrell will have to call Courtcall prior to the 2:00 p.m. hearing on October 1, 2018, so Courtcall can connect him to Department 53.

The clerk shall fax a copy of the tentative ruling to Officer Mercado on September 6, 2018, who shall ensure that a copy of the tentative ruling be provided to Mr. Harrell within two days of receiving the fax.

On September 12, 2017, the Court granted defendant’s motion to declare plaintiff, Joshua Neil Harrell (AW-7228), a vexatious litigant. The Court issued a prefiling order, and also ordered plaintiff to post security in the amount of $5,000 no later than October 20, 2017, as a precondition of proceeding with this lawsuit. That date has now long passed, and plaintiff has not posted the required security. Pursuant to CCP 391.4, “when security that has been ordered furnished is not furnished, as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished.” CCP 391.4.

On June 13, 2018, the Court denied plaintiff’s Motion to Set Aside Vexatious litigant determination. (See minute order June 13, 2018) Pursuant to CCP 391.8(b), a vexatious litigant whose application under 391.8(a) is denied shall not be permitted to file another application on or before 12 months has elapsed after the date of the denial of the previous application. CCP 391.8(b).

In opposition, plaintiff does not address the issue of his failure to post security. This Court previously found that plaintiff was a vexatious litigant and issued the pre-filing order because it found that there was no reasonable probability that the plaintiff would prevail in this litigation. Security of $5,000 was ordered posted.(See Minute order September 17, 2018.) Instead of opposing this motion, plaintiff seeks a second order vacating the prefiling order that was entered on September 12, 2017, pursuant to CCP 391.8(c). The request is both an untimely motion under CCP 1005(b), an improper motion for reconsideration of the June 13, 2018 ruling under CCP 1008, and is prohibited under section 391.8(b) because 12 months have not passed since the June 13, 2018 order.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.