2012-00134620-CU-PN

Stephen Lohbeck vs. Sacramento Sheriffs Department

Nature of Proceeding: Motion to Declare Plaintiff a Vexatious Litigant

Filed By: Cress, Peter A.

Defendant County of Sacramento’s Motion to Declare Plaintiff Stephen Lohbeck a
vexatious litigant is ruled upon as follows.

This action arises out of Plaintiff’s arrest in August of 2005 for check fraud and
burglary. Plaintiff alleges “there was no probable cause to arrest the plaintiff,” and that
“the actual harm that the plaintiff suffered enhanced his psychological depression
problems.” (Complaint, COA 1, 2.)

Defendant contends that Plaintiff has previously filed two separate lawsuits based on
his 2005 arrest. (Def. RFJN Ex. 14, 16.) Defendant also contends that Plaintiff has filed
numerous other non-meritorious lawsuits in 2011 and 2012, and should be declared a
vexatious litigant.

Under CCP §391(b), “Vexatious litigant” means a person who does any of the
following:
(1) 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.
(2) 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.
(3) 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.
(4) 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.

CCP §391.1 permits a motion “for an order requiring the plaintiff to furnish security”
which “must 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 will prevail
in the litigation against the moving defendant.”

Defendant presents evidence that Plaintiff has, within the past three years, filed five
lawsuits in pro per that have been finally adjudicated against him, and numerous other
suits that remain pending. Defendant contends that Plaintiff filed two suits against U.S.
Bank in this court on the same day in 2011 involving the same claims. (Def. RFJN Ex.
2, 5.) The actions were dismissed after U.S. Bank’s demurrer was sustained without
leave to amend. (Def. RFJN Ex. 8.) Plaintiff’s appeal was dismissed. (Def. RFJN Ex.
10.)

Defendant also presents evidence that Plaintiff has filed two previous lawsuits based
on the same claims of false arrest asserted in this action. (Def. RFJN Ex. 14, 16.) The
summons and complaint in the first suit (Case No. 2011-00114662) have never been
served and no answer has been filed. Defendant contends that Plaintiff has filed
numerous requests for entry of default against Defendant despite the fact that service
has not been effected and despite repeated admonishment from the court. On
September 28, 2012, this court sustained Defendant’s demurrer to the complaint in the
second suit (Case No. 2012-118365) without leave to amend. (Def. RFJN Ex. 18.)
Plaintiff has twice appealed to the Third Appellate District and both appeals were
dismissed. (Def. RFJN Ex. 19, 20.)

Defendant presents further evidence that on March 22, 2012, Plaintiff filed a complaint
in an action against HSBC Card Services. (Case No. 2012-121053.) On February 4,
2013, this court sustained the demurrer to the Second Amended Complaint without
leave to amend. (Def. RFJN Ex. 27.)

Defendant’s evidence indicates that on August 7, 2012, Plaintiff filed suit against his
landlord, Steve Palioudakis. (Def. RFJN Ex. 29.) The case remains open in this court.
(Case No. 2012-129660.)

Defendant also presents evidence that between August 21, 2012 and October 12,
2012, Plaintiff filed three separate lawsuits against Chaddock Fiduciary Services
based on identical claims. (Def. RFJN Ex. 31, 33, 35.) All three suits remain pending.

Additionally, Defendant presents evidence that Plaintiff has filed several other suits
against the County of Santa Clara in the Santa Clara Superior Court. (Def. RFJN Ex.
36, 37.) One of these cases has been dismissed, and the other remains open. (Id.)

As Defendant, argues this record establishes that Plaintiff has filed numerous
duplicative lawsuits and has repeatedly attempted to litigate identical claims even after
suits are finally adjudicated against him.

Defendant also contends that a determination that Plaintiff is a vexatious litigant is
proper because there is no probability that Plaintiff will prevail on his claims in this
instant action. Defendant contends that the conduct giving rise to Plaintiff’s claims
occurred in 2005, more than five years before Plaintiff filed his complaint in this action.
Defendant argues that the claims are therefore barred by the two-year statute of
limitations set forth in CCP §335.1, which applies to claims for “assault, battery, or
injury to…an individual caused by the wrongful act or neglect of another.” Defendant
also argues that Plaintiff’s claims are barred by res judicata, as they are identical to the
claims in Case No. 2012-118365 which was dismissed after Defendant’s demurrer was
sustained without leave to amend.

In opposition, Plaintiff argues that “[a]ny other lawsuits filed by me are heresay [sic]”,
and contends that this suit is meritorious. However, Plaintiff does not address
Defendant’s showing that Plaintiff has previously and unsuccessfully litigated his
claims in this action. Plaintiff also does not address the numerous other duplicative
lawsuits filed in this and other courts. Additionally, Plaintiff makes no substantive
showing that he is likely to prevail in this action.

Accordingly, a determination that Plaintiff is a vexatious litigant, and an order requiring
security, is appropriate.

Defendant’s motion for an order requiring Plaintiff to furnish security is granted. Plaintiff
is hereby ordered to furnish security in the amount of $15,000 no later than October
15, 2013.

A motion pursuant to CCP §391.1 stays the litigation until ten days after the required
security has been posted. (CCP §391.6.) Thus, the action is ordered stayed until ten
days after Plaintiff has posted the required security and provided written notice thereof
to Defendants.

A prefiling order under CCP §391.7 shall be entered against Plaintiff. Plaintiff is
prohibited from filing any new litigation in the courts of this state in propia prersona
without first obtaining leave of the presiding justice or presiding judge of the court
where the litigation is proposed to be filed.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312. Once the order is signed, the clerk shall mail copies of the order to the
Plaintiff and to the Judicial Council.