2017-00212721-CL-MC

G. Daniel Walker vs. Mike Marlin Director

Nature of Proceeding: Motion to Declare Plaintiff a Vexatious Litigant

Filed By: Perkins, III, Robert M.

Oral Argument will take place on October 17, 2018.

The Clerk shall fax a copy of the tentative ruling to the litigation coordinator on or before October 11, 2018. The litigation coordinator shall provide the tentative ruling to plaintiff G. Daniel Walker. Appearance is required on October 17, 2018.

Plaintiff G. Daniel Walker shall be available, by COURTCALL, to participate in oral argument on the continuance date.

Defendants Mike Marlin’s, et al.’s motion to declare Plaintiff a vexatious litigant is ruled upon as follows.

Defendants’ request for judicial notice is granted.

Incarcerated Plaintiff G. Daniel Walker filed the instant action alleging that he suffers from numerous disabilities including mobility, vision and hearing impairment. Plaintiff alleges that he participates in the California State Library’s (“CSL”) Braille and Talking

Book Library (“BTBL”). He alleges that he applied for an amplifier and 25 audiobooks through CSL’s BTBL. He alleges Defendants failed to respond and then fabricated a document that Plaintiff had no hearing impairments. He alleges that Defendant Deborah Lynch told him that prison regulations prevent him from receiving the maximum number of books and that Defendants had discriminated against him because of his imprisonment. He alleges that Defendants violated the American with Disabilities Act and the Unruh Act.

Defendants seek an order declaring Plaintiff to be a vexatious litigant, requiring him to post security before the action can continue and issuing a pre-filing order.

CCP § 391.1 provides “that at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security…” “The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and 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.” (CCP § 391.1.)

Defendants’ motion is based entirely on litigation in other matters and they cite cases dating back to 1992. Defendants do not argue that Plaintiff is a vexatious litigant pursuant to CCP § 391(b)(1) [requiring at least 5 separate litigations determined adversely in the preceding seven years]. Rather, Defendants move to have Plaintiff declared a vexatious litigant pursuant to CCP § 391(b)(3) which provides that a self-represented Plaintiff may be declared vexatious “[i]n any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in tactics that are frivolous or solely intended to cause unnecessary delay.” (CCP § 391(b)(3).)

A court exercises its discretion in determining whether a person is a vexatious litigant. Singh v. Lipworth (2014) 227 Cal. App. 4th 813, 828; Holcomb v. U.S. Bank Nat. Assn

. (2005) 129 Cal. App. 4th 1494, 1498. Here, the Court finds that Defendants have not established, for purposes of this motion only, that Plaintiff is a vexatious litigant pursuant to CCP § 391(b)(3).

To that end, Defendants, cite to 8 federal cases dating from 1992 to 2018 with a brief synopsis of each and argue that Plaintiff’s conduct in these cases demonstrates that he is a vexatious litigant pursuant to CCP § 391(b)(3). The first two cases are cases in the Northern District of Illinois in 1992. (RJN Exhs. A, B.) In one, Plaintiff’s case was dismissed because he refused to participate in pretrial conferences and Plaintiff was described as an “abusive” litigant. (Id. Exh. A.) In the other Plaintiff’s case was dismissed after his civil rights complaint was found to be frivolous. (Id. Exh. B.)

The next case is an Eastern District [Ca.] case in 2002 where it was determined that Plaintiff was a vexatious litigant. The District Judge found that Plaintiff had filed 11 actions in the Eastern District and in each filed for status in forma pauperis but refused to provide the affidavit required by 28 U.S.C. § 1915(g) despite orders to do so. (RJN Exh. C.) In another Eastern District case in 2003, Plaintiff was found to be a vexatious litigant. At the time, Plaintiff had 26 cases that were either pending or had been dismissed. (RJN Exh. D.)

Defendants then cite a 2009 case from the Northern District. There, Plaintiff’s case was dismissed after he was ordered to show cause why it should not be dismissed

pursuant to 28 U.S.C. § 1915(g). Rather than showing cause, he apparently filed documents denigrating the judge and the law clerks. (RJN Exh. E.)

Defendants then cite to two Eastern District cases in 2018. (RJN Exhs. F, H.) In the first, the matter was removed to Federal Court and Plaintiff was given 30 days to amend his complaint. Over 100 days passed and Plaintiff did not amend his complaint and instead filed numerous documents requesting accommodations. The complaint was dismissed and Plaintiff’s appeal to the Ninth Circuit was deemed frivolous. (Id. Exh. G.) In the second action, the case was again removed to Federal Court. Plaintiff was given 30 days to amend the complaint and rather than amending filed numerous motions which were denied and the matter was remanded. (Id. Exh. H.) Plaintiff’s appeal to the Ninth Circuit was dismissed for lack of jurisdiction. (Id.)

Here, the Court finds that the above is insufficient to demonstrate that Plaintiff is a vexatious litigant pursuant to CCP § 391(b)(3). Indeed, six of the eight cases relied upon by Defendant are almost 10 years old, and two of them are over 20 years old. While CCP § 391(b)(3), unlike CCP § 391(b)(1) does not contain any specific time limitation, the Court find that cases dating back 10 years or more have little tendency to demonstrate that Plaintiff is vexatious under CCP § 391(b)(3). The fact that Plaintiff may have been declared vexatious in two of those older cases is not relevant here as Defendant did not move under CCP § 391(b)(4).

In addition, the two 2018 Eastern District cases also are not particularly helpful. Indeed, each involved a case removed to Federal Court and which was ultimately dismissed or remanded after Plaintiff failed to amend the complaint. While in both of those case, Plaintiff may have filed requests for accommodations rather than amending the complaint as ordered by the court, this by itself does not demonstrate that Plaintiff is vexatious.

Even assuming that the Court may properly consider other lawsuits under CCP § 391 (b)(3) as opposed to only conduct in the instant case, the Court finds that the examples cited by Defendants are insufficient to demonstrate that Plaintiff is vexatious pursuant to CCP § 391(b)(3). To that end, many of the cases are quite old and the showing on the current record is not sufficient in this Court’s opinion to find that Plaintiff has “repeatedly file[d] unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in tactics that are frivolous or solely intended to cause unnecessary delay.” (CCP § 391(b)(3).) Importantly, Defendants have not made any argument that Plaintiff has engaged in any conduct in the instant case that would meet the standard under CCP § 391(b)(3).

The Court therefore finds that Defendants have failed to establish that Plaintiff is a vexatious litigant pursuant to CCP § 391(b)(3) based on his conduct in other lawsuits.

Given the above, the Court need not consider whether Plaintiff has a reasonable probability of success.

Defendants’ motion to declare Plaintiff a vexatious litigant and for a pre-filing order is denied.

The minute order is effective immediately. No formal order pursuant to CRC rule

3.1312 or other notice is required. However, the clerk shall send a copy of the minute order to the Plaintiff.