Case Number: BC606253 Hearing Date: October 01, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT OF VEXATIOUS LITIGANT PLAINTIFF, OR IN THE ALTERNATIVE, TO REQUIRE PLAINTIFF TO POST A SECURITY BOND; MOTION DENIED

On January 7, 2016, Plaintiff Alyce Spahnn (“Plaintiff”) filed this action for medical malpractice and battery in propria persona. On June 12, 2017, Steven Glickman substituted in as counsel for Plaintiff. On June 16, 2017, Plaintiff filed a First Amended Complaint (“FAC”). Defendants Cedars-Sinai Medical Center (“Cedars”) and Catherine Dang, M.D. (“Dr. Dang”) move to dismiss the complaint on grounds Plaintiff is a vexatious litigant who did not obtain leave to file this action, or in the alternative, to require Plaintiff to post a security bond. Defendant Steven Frankel, M.D. (“Dr. Frankel”) filed a joinder to this motion to dismiss or to require Plaintiff to post a security bond.

A vexatious litigant is one who does any of the following:

In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.

After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.

In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.

Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

(Code of Civ. Proc., § 391.)

“[T]he court may, on its own motion or the motion of any party, enter a pre-filing 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.” (Code of Civ. Proc., § 391.7, subd. (a).) The presiding judge may also condition the filing of the litigation upon furnishing security as provided in section 391.3. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 221.)

It is undisputed that Plaintiff, under her maiden name, Alyce Vrba, was named as a vexatious litigant and was prohibited from filing any actions without prior authorization. (Declaration of Laura Tagmazian, ¶ 2; Exh. A.) On January 7, 2016, Plaintiff, in propria persona, filed this action without first obtaining leave of the court. (Tagmazian Decl., ¶ 5.) Defendants apparently only discovered Plaintiff’s status as a vexatious litigant in July 2018.

On August 1, 2018, Plaintiff’s counsel filed an Application for Order to Vacate Pre-filing Order and Remove Plaintiff from Judicial Council Vexatious Litigant List in Department 1. Department 1 issued a general order denying the application to vacate pre-filing order and issued a second order in Spahnn v. LAPD (Case No. BC661311) staying the case and requiring a pre-filing order within ten days. Plaintiff’s counsel contends that based on Department 1’s specific order in Spahnn v. LAPD, and lack of an order in this case, this Court should infer that Department 1 found this case to be meritorious and since counsel is representing Plaintiff, no further action need be taken.

The Court disagrees that such an inference can be drawn from the lack of a specific order in this case from Department 1. This action was improperly filed by Plaintiff, a vexatious litigant, while in propria persona, and is subject to dismissal. The Court may strike the FAC and require Plaintiff to obtain a pre-filing order. However, Plaintiff is no longer in propia persona, rather has been represented by counsel for over one year. Counsel filed a First Amended Complaint soon after he became Plaintiff’s counsel of record, and counsel believes Plaintiff has a meritorious claim. Counsel for Plaintiff is a long time medical malpractice attorney who is a former President of the Consumer Attorneys Association of Los Angeles. Counsel states that he has reviewed medical records and consulted with multiple experts from which he opines that “there is no question that this case has substantial merit.” (Declaration of Steven C. Glickman, §§ 5, 7.)

The parties have conducted extensive discovery over the past year, thus, the purpose for the vexatious litigant statute would not be served by requiring Plaintiff to refile her action over 2 ½ years after she first commenced it. (See In re Kinny (2011) 201 Cal.App.4th 951, 957 [“The purpose of the vexatious litigant statutes ‘is to address the problem created by 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.’”].) (emphasis added.)

Moreover, a dismissal of this case at this point would deprive Plaintiff from being able to prosecute this medical malpractice action at all as the alleged incident occurred on January 7, 2015. The statutory limitations period for filing this action has undoubtedly long expired. (CCP § 340.5 (establishing either a one year or three year limitations period.)) Preventing this Plaintiff, albeit a vexatious litigant, from prosecuting a meritorious claim does not advance substantial justice or the goals of the vexatious litigation statute.

Defendants delayed in filing their motion to dismiss by over one year from when they first appeared in this action (demurrer filed August 2, 2017.) Defendants explain the delay by arguing that Plaintiff used a different name in this case than the one listed in the Order declaring her a vexatious litigant. It is not uncommon for vexatious litigants to use different names. It is not clear how Defendants have now discovered that Plaintiff is a declared a vexatious litigant, or why they could not have, in the same fashion, discovered her status before this case was extensively litigated for over one year by all the parties.

However, Plaintiff may still be required to furnish a security bond. A party may move the court for an order requiring the plaintiff to furnish security supported by a showing that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant. (Code of Civ. Proc., § 391.1.) If the trial court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail against the moving defendant, the court must order the plaintiff to furnish security for the benefit of the moving party. (Code of Civ. Proc., § 391.3.)

Defendants argue they have already incurred $40,000.00 in attorney’s fees and that Plaintiff should be required to post a bond because she is a vexatious litigant who did not properly file this case, an act that should not go unpunished. They seek a bond of $80,000.00. Dr. Frankel has filed a “joinder” without any additional substantive argument.

Having reviewed the moving, opposition, and joinder papers, the Court finds Defendants have not established that there is not a reasonable probability Plaintiff will prevail in the litigation. (Code of Civ. Proc., §§ 391.1, 391.2.) The Court has considered the Declaration of Isaac Benjamin Paz, M.D., which was filed in support of Defendants’ motion for summary judgment to be heard on November 30, 2018. Dr. Paz opines that Defendants’ treatment and care of Plaintiff complied with the standard of care. Plaintiff’s counsel, an experienced medical malpractice attorney, states that after consulting with multiple experts he is of the opinion that this case has substantial merit. (Declaration of Steven Glickman, ¶¶ 7, 8.) In light of these conflicting opinions, the Court is not able to conclude that there is not a reasonable probability that Plaintiff will prevail in this case.

In light of the foregoing, the motion to dismiss, or in the alternative, to require Plaintiff to furnish a security bond is DENIED.

Moving party to give notice.