2017-00209936-CU-CR

Charles R. Cooks vs. Xavier Becerra

Nature of Proceeding: Motion to Require Security from Plaintiff Under the Vexatious Litigant

Filed By: Palma, Neli N.

This matter was originally set for hearing on 2/15/2018 but was continued to this date when defendant appeared for oral argument without notice. The court’s tentative ruling is set forth below.

Specially-appearing defendant Xavier Becerra’s motion to require vexatious litigant Charles Reginald Cooks, plaintiff in pro per, to post security before further prosecution

of this action is UNOPPOSED and is GRANTED as follows.

Plaintiff in pro per Cooks, currently in the custody of California Department of Corrections and Rehabilitation, was recently declared to be a vexatious litigant in Sacramento Superior Court Case No. 34-2016-00205504, Cooks v. Second Appellate District et al.

Defendant now moves to require plaintiff Cooks to post security in the amount of

$5,000 before further prosecuting this action on the ground that plaintiff Cooks has no “reasonable probability” of prevailing on his claims for “Negligence” and “Intentional Tort” against California’s current Attorney General pursuant to by Code of Civil Procedure §391 et seq. More specifically, defendant contends plaintiff cannot prevail in this action because he did not comply with the claim presentation requirement of the Government Claims Act and this action is barred by not only the prosecutorial immunity doctrine but also by Heck v. Humphrey (1994) 512 U.S. 477 [collateral attack on conviction via civil claim not permitted].

Coupled with the lack of opposition to this motion, this Court concludes that plaintiff has no “reasonable probability” of prevailing in the present litigation given the allegations in the complaint and the application of the above-cited absolute defenses on which defendant is entitled to rely. Therefore, pursuant to Code of Civil Procedure §391.6, the present action is stayed until plaintiff furnishes the security which this Court deems appropriate. According to McColm v. Westwood Park Association, the Court need not consider plaintiff’s financial means or lack thereof in determining the amount of security which is to be required since the security is to protect defendants from the fees and costs which are reasonably expected to be incurred as a result of plaintiff’s continued prosecution of a case in which s/he has no “reasonable probability” of prevailing. (McColm, at 1218-1219.) Finding defendant’s request relating to the amount of security to be reasonable under the circumstances, the Court will pursuant to Code of Civil Procedure §391.1 set the amount at $5,000 and give plaintiff until 4/13/2018 to furnish this security in an acceptable form.

Provided that plaintiff post this security by the stated deadline, the stay pursuant to Code of Civil Procedure §391.6 shall be lifted but if plaintiff fails to furnish the security by the 4/13/2018 deadline, defendant may thereafter file and serve a noticed motion to dismiss this action pursuant to Code of Civil Procedure §391.4.

Moving party to provide notice of this ruling and file proof of service of same no later than 3/15/2018.