Case Number: 18STCV09536 Hearing Date: October 09, 2019 Dept: 20

Tentative Ruling

Judge Dalila C. Lyons

Department 20

Hearing Date: Wednesday, October 9, 2019

Case Name: Cory Brookshire v. Michael Nicholson, et al.

Case No.: 18STCV09536

Motion: Order Requiring Vexatious Litigant to Furnish Security

Moving Party: Defendants Michael Nicholson, Southland Income Properties, Inc., and Jay S. Rosenthal

Responding Party: Plaintiff Cory Brookshire

Ruling: Defendants Michael Nicholson, Southland Income Properties, Inc., and Jay S. Rosenthal’s motion for an order requiring Plaintiff Cory Brookshire, a vexatious litigant, to furnish security is GRANTED.

Plaintiff Cory Brookshire is ordered to furnish security in the amount of $30,000 by October 23, 2019. CCP § 391.3(a).

Plaintiff is ordered to file proof that he has furnished the ordered security bond by October 25, 2019.

Pursuant to CCP § 391.6, all proceedings in this case are stayed until November 11, 2019.

A status conference regarding Plaintiff’s compliance with this order and OSC re dismissal of this case is set for November 11, 2019, 8:30 a.m.

WARNING: Failure to comply with this order will subject the Plaintiff to sanctions, including dismissal of this case. Failure of Plaintiff to appear at the November 11, 2019 hearing or to timely furnish the ordered security will be deemed consent for the Court to dismiss this case on November 11, 2019 without further notice or hearing per CCP § 391.3(b).

Given the filing of the First Amended Complaint, as previously ordered by the Court, the hearing set for October 9, 2019 at 8:30 a.m. on the Motion for Judgment on the Pleadings on the Complaint is OFF CALENDAR.

Despite the stay, the parties are ordered to meet and confer regarding the outstanding discovery the subject of the Defendants’ two motions to compel discovery set for November 21, 2019. Discovery sanctions will be issued if appropriate.

Moving party shall give notice and file notice of ruling within 10 days of this ruling.

BACKGROUND

On December 24, 2018, Plaintiff Cory Brookshire (“Plaintiff”) in pro per[1] filed the Complaint against Defendants Michael Nicholson (“Nicholson”), Jay S. Rosenthal (“Rosenthal”), and Southland Income Properties, Inc. (“Southland”) and Does 1-25 for (1) intentional tort – discriminatory failure to add Plaintiff to lease; (2) breach of contract – oral and written agreement to add Plaintiff to lease; (3) intentional tort – negligence in maintaining habitable premises; and (4) “Cause of Action #6” – breach of implied warranty of habitability.

On April 15, 2019 the Court deemed Plaintiff a vexatious litigant in Los Angeles Superior Court Case No. 18STCV03281.

On September 30, 2019, Plaintiff filed the First Amended Complaint (“FAC”) against Defendants Nicholson, Rosenthal, Southland, M&M Nicholson Partners Limited No. 1; Hoffman Family Limited Partnership; Group Family Limited Partnership (collectively, “Defendants”); and Does 1-25 for (1) breach of contract; (2) negligence; (3) breach of covenant of quiet enjoyment; (4) breach of implied warranty of habitability; (5) breach of implied warranty of habitability – contract; (6) breach of implied warranty of habitability – tort; (7) violation of Bus. & Prof. Code § 17200; (8) intentional infliction of emotional distress; (9) fraud: intentional misrepresentation; (10) fraud: negligent misrepresentation; (11) fraud: false promise; (12) intrusion into private affairs.

This case arises from a lease of real property commonly known as 11250 Morrison St, Apartment 208, North Hollywood, CA (“Property”) between Brandon Winston (“Winston”) and Defendant Southland commencing on October 11, 2018 (“Lease”). Plaintiff alleges he entered the Lease on behalf of Winston. Plaintiff alleges Plaintiff was lead to believe that Plaintiff would be added to the Lease for the Property but that Defendants ultimately failed to add Plaintiff to the Lease. Plaintiff further alleges that Defendants failed to keep the Property in a habitable condition. Plaintiff alleges Defendants entered the Property without Plaintiff’s consent and video recorded Plaintiff without Plaintiff’s consent.

MOVING PARTY POSITION

Defendants move for an order requiring Plaintiff to furnish security because Plaintiff has been declared a vexatious litigant and Plaintiff has not reasonable probability of prevailing in this litigation.

OPPOSITION

Plaintiff opposes the present motion because Plaintiff is represented in this matter, Plaintiff cannot afford to furnish security, and Plaintiff has a reasonable probability of prevailing in this litigation now that the FAC has been filed.

REPLY

Defendants argue Plaintiff misstates his financial resources, it is irrelevant that Plaintiff is represented in this matter, and Plaintiff lacks a reasonable probability of prevailing because most of Plaintiff’s claims are barred by collateral estoppel or contradicted by Plaintiff’s other claims.

ANALYSIS

I. Request for Judicial Notice

Defendants request for judicial notice of the following documents pursuant to California Evidence Code Section 452(d) is GRANTED:

Judgment after jury trial entered in Los Angeles Superior Court Case No. 18PDUD04017 (“UD Case”);

Answer filed by Plaintiff in the UD Case;

Completed special verdict form in the UD Case; and

Order Deeming Plaintiff a vexatious litigant in Los Angeles Superior Court Case No. 18STCV03281.

II. Evidentiary Objections

A. Plaintiff’s Objections

Plaintiff’s objections are ruled upon as follows:

OVERRULED: 1-2

Plaintiff is not objecting to evidence, but rather to arguments of opposing counsel. A party cannot object to arguments by reference to the rules of evidence. Plaintiff is ordered to review the evidence code and comply with it in future proceedings.

B. Defendants’ Objections

Defendants’ objection to the Declaration of Eric Sapir is SUSTAINED. Defendants’ objections to the Declaration of Cory Brookshire are ruled upon as follows:

SUSTAINED: 16, 19-23, 29-34, 36-40, 42

OVERRULED: 1-15, 17-18, 24-28, 35, 41

III. Furnish Security

A defendant may move the court anytime before entry of final judgment for an order requiring the plaintiff to furnish security “upon 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. The court shall consider any evidence, written and oral, by witnesses or affidavit, as may be material to the motion. Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 784-786. Where a Plaintiff is a vexatious litigant and there is no reasonable probability that he will prevail in the litigation, the court shall order the plaintiff to furnish security. CCP § 391.3(a). The required security is an undertaking to assure payment of the opposing party’s reasonable expenses, including attorney’s fees and not limited to taxable costs, incurred in connection with a litigation instituted by a vexatious litigant. CCP § 391(c).

Here, Plaintiff shall be required to furnish security because Plaintiff has been deemed a vexatious litigant and Plaintiff lacks a reasonable probability of prevailing in the litigation.

A. Vexatious Litigant

The Court in Los Angeles Superior Court in case No. 18STCV03281 granted a motion to deem Plaintiff a vexatious litigant. Request for Judicial Notice (“RJN”) No. 4.

Plaintiff argues the present motion is improper because Plaintiff is currently seeking reconsideration of the order deeming Plaintiff a vexatious litigant. Plaintiff’s argument is unconvincing because Plaintiff has cited no authority for the idea that a vexatious litigant is not subject to the code sections requiring the vexatious litigant to furnish security while the vexatious litigant is seeking reconsideration of the order deeming him vexatious. At the time this ruling is issued Plaintiff is deemed a vexatious litigant.

Next, Plaintiff argues that the present motion is improper because Plaintiff is represented by counsel in this action. However, Plaintiff fails to provide case law supporting this argument. Plaintiff’s citation to Shalant v. Girardi (2011) 51 Cal.4th 1164 is unavailing because Shalant dealt with a different provision of the code of civil procedure that required a prefiling order for vexatious litigants filing new litigation in propia persona. Plaintiff fails to cite any cases holding a vexatious litigant need not furnish security if the vexatious litigant is represented in the present matter.

Plaintiff next argues the present motion is improper because Defendants motives in filing the motion are improper. Again, Plaintiff cites no case law stating a party’s motive affects the analysis.

Plaintiff also argues that the present motion is improper because it violates the right of Plaintiff’s counsel to represent Plaintiff. This argument lacks logic and case support. First, requiring Plaintiff to furnish security does not prevent Plaintiff from continuing to retain Plaintiff’s counsel. Second, Plaintiff’s citation to In re Marriage of Flaherty (1982) 31 Cal.3d 637 is inapposite because that case dealt with sanctions against an attorney for filing a frivolous appeal. The present motion does not seek sanctions, does not seek anything from Plaintiff’s attorney, and does not arise from an appeal.

Lastly, whether Plaintiff can afford to furnish security is not a factor in this analysis, and Plaintiff cites no case law holding a vexatious litigant is excused from furnishing security for lack of financial resources. “Trial court was not required, in setting amount of security required of plaintiff, as vexatious litigant, to take into consideration plaintiff’s means.” Devereaux v. Lathan & Watkins (1995) 32 Cal.App.4th 1571, 1588.

The Court previously determined that Plaintiff is a vexatious litigant.

B. No Reasonable Probability of Prevailing

“A showing that a vexatious litigant lacks a reasonable probability of success, as required to impose bond requirement and prefiling order, is ordinarily made by the weight of the evidence, but a lack of merit may also be shown by demonstrating that the plaintiff cannot prevail in the action as a matter of law.” Golin v. Allenby (2010) 190 Cal.App.4th 616, 642 (modified on denial of rehearing). “[T]he court does not assume the truth of a litigant’s factual allegations.” Id. at p. 635.

Here, Plaintiff lacks a reasonable probability of prevailing on all of his claims because collateral estoppel precludes Plaintiff from asserting rights under the Lease which underpin most of his claims, Plaintiff cannot prove damages for his fraud claims, and Plaintiff’s evidence of invasion of privacy contradicts allegations for invasion of privacy.

1. Contract Claims

Plaintiff’s First, Third, Fourth, and Fifth Causes of Action in the FAC are contract claims based on the Lease. Plaintiff is collaterally estopped from raising any contract claims based on the Lease against Southland. The jury in the UD Case found that Southland was the lessor of the Property and the Property was leased to Winston, not Plaintiff. RJN No. 3. Collateral estoppel applies because the issue is identical between the cases, was determined by a final decision on the merits, and binds the party–Plaintiff–against whom the doctrine is asserted. Further, the jury’s finding that Southland was the lessor precludes Plaintiff from asserting contract claims against the remaining Defendants, who were not parties to the Lease. Therefore, Plaintiff has no reasonable probability of prevailing on his First, Third, Fourth, and Fifth Causes of Action.

2. Negligence Claims

Plaintiff’s Second and Sixth Causes of Action are negligence claims based on a duty of Defendants to maintain the Property in a habitable condition. Plaintiff is collaterally estopped from claiming the Property was not maintained in a habitable condition because the jury in the UD Case found that the defective condition, leaking roof, in the Property was repaired within a reasonable time and did not affect the rental value of the Property. RJN No. 3. Again, collateral estoppel applies because the issue is identical between the cases, was determined by a final decision on the merits, and binds the party–Plaintiff–against whom the doctrine is asserted. Therefore, Plaintiff has no reasonable probability of prevailing on his Second and Sixth Causes of Action.

3. Unfair Competition Claim

Plaintiff’s Seventh Cause of Action claims violation of unfair competition law based on Defendants breaching the implied warranty of habitability and still requiring Plaintiff to pay full rent. As stated above, Plaintiff is collaterally estopped from asserting Defendants did not maintain the Property in a habitable condition because the jury in the UD Case found to the contrary in a final decision binding upon Plaintiff. Because Plaintiff cannot establish the underlying violation of law upon which his unfair competition claim is based, Plaintiff has no reasonable probability of prevailing on his Seventh Cause of Action.

4. Emotional Distress Claim

Plaintiff’s Eighth Cause of Action alleges intentional infliction of emotional distress based on Defendants’ eviction of Plaintiff from the Property. Intentional infliction of emotional distress claims must be based on “extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard for causing, emotional distress…” Hughes v. Pair (2009) 46 Cal.4th 1035, 1050. Conduct is not outrageous unless it is “so extreme as to exceed all bounds of decency usually tolerated in a civilized community.” Id. at p. 1051. Evicting a tenant is not conduct exceeding all bounds of decency. It is a societal necessity formalized through an orderly judicial process. Plaintiff’s participation in the unlawful detainer process does not involve extreme and outrageous conduct, particularly when Plaintiff was not a party to the Lease for the Property. RJN No. 3; Compl., Exh. B. Any promises by Defendants to add Plaintiff to the Lease do not convert the judicial process of unlawful detainer into extreme and outrageous conduct exceeding all bounds of decency because any promises did not change the nature of the proceedings or exacerbate the emotional toll a reasonable person would have felt from the eviction. Therefore, Plaintiff has no reasonable probability of prevailing on his Eighth Cause of Action.

5. Fraud Claims

Plaintiff’s Ninth, Tenth, and Eleventh Causes of Action are fraud claims based on Defendants’ alleged promises to add Plaintiff to the Lease. “The elements of fraud are (1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damages.” Cansino v. Bank of America (2014) 224 Cal. App. 4th 1462, 1459. Plaintiff has no reasonable probability of prevailing on the fraud claims, not only because the jury in the UD Case found that Southland did not communicate with Plaintiff about adding Plaintiff to the Lease after December 3, 2018, but also because Plaintiff cannot show any resulting damages from whatever promise to add Plaintiff to the Lease. RJN No. 3. The UD Case conclusively established that Plaintiff had no right to live in the Property. RJN No. 3. Plaintiff remained at the Property illegally regardless of any promises to add Plaintiff to the Lease. RJN No. 3. The UD Case also conclusively established that Defendants did not communicate with Plaintiff after December 3, 2018 about adding Plaintiff to the Lease. RJN No. 3. Therefore, the only communications Plaintiff can base his fraud claim upon occurred before December 3, 2018. According to Plaintiff, declaration filed in opposition to this motion, the only actions Plaintiff took in reliance on an alleged promise by Defendants were to exchange phone calls with Defendants about Winston moving in and Plaintiff providing an application and Plaintiff’s identification. Thus, Plaintiff fails to even allege any compensable damages arising from any fraudulent promises by Defendants, and consequently Plaintiff has no reasonable probability of proving any compensable damages for fraud. Therefore, Plaintiff has no reasonable probability of prevailing on his Ninth, Tenth, and Eleventh Causes of Action.

6. Privacy Claim

Plaintiff’s Twelfth Cause of Action is a claim for intrusion into private affairs based on Defendants entering the Property without Plaintiff’s consent and video recording Plaintiff without consent. Plaintiff has no reasonable probability of prevailing on this claim based on Defendant’s entering the Property without Plaintiff’s consent because the UD Case conclusively established Plaintiff was not a party to the Lease and therefore had no property rights in the Property. Because Plaintiff had not rights in the Property, Plaintiff did not have the right to exclude Defendants from the Property and did not have a privacy interest in the Property. A reasonable person would not be highly offended by Defendants entering property that Defendants owned and Plaintiff lacked any legal interest in.

Additionally, Plaintiff has no reasonable probability of prevailing on the Twelfth Cause of Action based on Defendants video recording Plaintiff without Plaintiff’s consent because Plaintiff’s declaration in opposition to this motion contradicts Plaintiff’s claim. Specifically, Plaintiff’s declaration refers to only one instance of video recording but states “I [Plaintiff] was not present when this happened and I did not know it happened.” Brookshire Decl. ¶ 13. Plaintiff repeats twice more that Plaintiff was not at the Property when Defendants did their video recording. Brookshire Decl. ¶ 13. Given that Plaintiff’s declaration contradicts his allegation that Plaintiff was video recorded without his consent, Plaintiff lacks a reasonable probability of prevailing on his Twelfth Cause of Action based on an offensive video recording of Plaintiff himself, as opposed to the Property.

Therefore, Plaintiff lacks a reasonable probability of prevailing on his Twelfth Cause of Action.

Accordingly, Plaintiff lacks a reasonable probability of prevailing on all of Plaintiff’s Causes of Action and Plaintiff is ordered to furnish security.

C. Amount of Security

The required security is an undertaking to assure payment of the opposing party’s reasonable expenses, including attorney’s fees and not limited to taxable costs, incurred in connection with a litigation instituted by a vexatious litigant. CCP § 391(c).

Here, Defendants request $50,000 in security based on “(1) the money already owed by Plaintiff from the unlawful detainer judgment; (2) the attorneys’ fees incurred in prosecuting the unlawful detainer action; (3) the attorney’s fees incurred in defending this action; (4) and the attorney’s fees expected to be incurred over the next 6 to 9 months in defending this action.”

Defendant’s requested amount is improper because it includes amounts from the UD Case. Security is an undertaking to cover the costs incurred in the present litigation, not to cover the judgment and costs in a previous litigation. CCP § 391(c). Defendant’s declaration does not differentiate between the costs incurred in this litigation and the UD Case but notes $46,731 in attorney’s fees have been incurred in both actions, the majority because of “Plaintiff’s repetitive filings of motions, applications, and other documents in an effort to delay the eviction proceedings.” Babaian Decl. ¶ 3. Since any delay in the eviction proceedings necessarily arise in the UD Case, the Court read the Babaian Declaration to say very little of the $46,731 in attorney’s fees come from defending the present action. Therefore, the Court will order security in an amount it believes reasonable to cover the costs of defending this current lawsuit to conclusion.

The Court finds $30,000 in security adequate. This case has lasted 287 days and the FAC was only recently filed. Defendants are likely to demur to the FAC on collateral estoppel grounds, which demur if sustained without leave to amend would greatly reduce the number of causes of action in play. Any remaining causes of action are not likely to require extensive discovery since the parties and facts are generally known to all, and the UD Case covered much of the same ground. Although the case may not settle given the contentious relationship of the parties, it is also not likely to go to trial given the undisputed nature of the evidence and the application of collateral estoppel. Likely, the case will cost less or the same to defend as the UD Case. Given that the UD Case’s $13,170 judgment was included in Defendants’ request for $46,731, Defendants attorney’s fees and costs were actually $33,561. Babaian Decl. ¶ 3; RJN No. 1. The “large majority” of those attorney’s fees and costs are assignable to the UD Case, meaning the UD Case likely costs about $30,000 to defend. The Court finds an equivalent amount should be adequate to defend the present action, too. If the $30,000 proves to be inadequate in the future, the Court will consider increasing the amount of security.

Accordingly, the Court orders Plaintiff to pay an undertaking in the amount of $30,000 to cover Defendants costs in defending this lawsuit only.

SO ORDERED.

[1] Plaintiff later retained counsel.