Case Number: BC518694 Hearing Date: July 02, 2014 Dept: 73

Dept. 73
Rafael Ongkeko, Judge presiding

WELLS vs. BUNNETT, etc. (BC518694)

Counsel for defendants/moving party: Leah Plaskin (Klinedinst PC)
Counsel for plaintiff: None. Self-represented.

Procedural background
The original complaint alleged that on May 24, 2010, Defendant Bunnett was appointed as Plaintiff’s standby trial attorney and “undertook and then faithfully promised and agreed to represent Plaintiff in the criminal matter and in doing so to prepare and file all necessary motions, perform pre-trial discovery and investigation in plaintiff[’s] defense in a skillfull and diligent manner, as attorney for plaintiff herein.” Plaintiff argues a report was prepared that would have resulted in dismissal of some of the claims against him, but his counsel failed to give the report to the Court. He also claims negligence in discovery and other matters handled by Defendant. Plaintiff also alleges that the probation report provided to the Court was not his probation report and his attorney did not inform the Court of this. Plaintiff claims a right to recover on the first cause of action for Professional Negligence.

At the December 17, 2013 Case Management Conference, the Court noted that Plaintiff Frank Wells is currently incarcerated at Corcoran State Prison and was scheduled to be released in five months. To permit Plaintiff to better handle his case, the Court continued the CMC to July 17, 2014.

On January 13, 2014, Defendants filed a demurrer to the complaint. On February 20, 2014, Defendants filed a reply. The demurrer to the original complaint was heard on February 24, 2014 and sustained with 30 days’ leave to amend.

On April 10, 2014, Defendants filed a demurrer to the First Amended Complaint (FAC). On June 12, 2014, Plaintiff filed an opposition. On June 25, 2014, Defendants filed a reply.

On June 4, 2014, Defendants filed the motion for an order declaring Plaintiff a vexatious litigant. As of June 27, 2014, Plaintiff has not filed opposition.

Two matters:

1. Defendants Daniel Bunnettt and The Law Office of Daniel Bunnett’s Motion For An Order Declaring Plaintiff Frank Wells A Vexatous Litigant (filed 6/4/14)
2. Defendants’ demurrer to FAC (filed 4/10/14)

Matter #1:
Defendants Daniel Bunnettt and The Law Office of Daniel Bunnett’s Motion For An Order Declaring Plaintiff Frank Wells A Vexatious Litigant (filed 6/4/14)

The motion requests Plaintiff be declared a vexatious litigant. Plaintiff filed five prior unsuccessful litigations in the last seven years. Plaintiff has attempted to relitigate issues. The actions are frivolous. Plaintiff should have to post security to maintain this case because there is no reasonable probability that he will prevail. This is the fourth action against Defendants. Plaintiff cannot prove actual innocence or causation of damages.

Tentative ruling:
Defendants’ unopposed motion to declare Plaintiff a vexatious litigant is GRANTED. Defendants’ request for judicial notice is granted. Plaintiff is ordered to post bond in the amount of $80,000 with the Court within 30 days. This action is STAYED until 10 days after Plaintiff has posted the bond. A pre-filing order is entered against Plaintiff.

Discussion:

Pursuant to CCP §391.6, the proceedings are stayed when the instant motion is filed. The motion was filed on June 4, 2014. As such, the concurrently filed demurrer to the first amended complaint is stayed.

Vexatious Litigant Status: Plaintiffs who litigate in pro per and repeatedly file frivolous pleadings or motions, or attempt to relitigate issues previously determined against them, may be barred from filing new lawsuits without prior leave of court. Alternatively, defendant in the action may move for an order requiring the self-represented plaintiff to furnish security in an amount determined by the court. See CCP §§ 391-391.7; see Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 59-60.] In appropriate cases, courts may bar vexatious litigants from instituting new litigation either in pro per or through an attorney. In re Shieh (1993) 17 Cal.App.4th 1154, 1167 — “these attorneys who ostensibly “represent’ (litigant) serve as mere puppets.”

Any person who commences, institutes or maintains an action, including an attorney at law acting in pro per, may be determined to be a vexatious litigant. CCP § 391(d); see In re Shieh (1993) 17 Cal.App.4th 1154, 1166. Likewise, anyone who has caused an action to be commenced, instituted or maintained by another in pro per is subject to the statute. [CCP § 391(d)] While not the case here, the fact plaintiff is represented by counsel does not prevent a finding he or she is a vexatious litigant based on previous litigation conducted in pro per. Camerado Ins. Agency, Inc. v. Sup.Ct. (Stolz) (1993) 12 Cal.App.4th 838, 842; In re Shieh, supra, at 1166.
One measure of a “vexatious” litigant is having commenced or maintained more than five in pro per lawsuits (other than small claim actions) within the “immediately preceding” seven-year period that have been “finally determined adversely” to the person (excluding small claims actions). CCP § 391(b)(1). Whether the prior lawsuits were “finally determined adversely” to plaintiff is ordinarily a question of fact; i.e., the court is required to take judicial notice of the court files and judgments in the earlier actions. “Finally determined” means that all avenues for direct review (appeal) have been exhausted or the time for appeal has expired. Childs v. PaineWebber, Inc. (1994) 29 Cal.App.4th 982, 994 –plaintiff cannot be adjudged “vexatious litigant” while earlier lawsuits still on appeal.

Cases voluntarily dismissed without prejudice by a pro per plaintiff count for the purpose of the vexatious litigant statute because they still burden the judicial system and the target of the litigation. Tokerud v. Capitol Bank Sacramento (1995) 38 Cal.App.4th 775, 779

Where defendant moves for security on the ground plaintiff is a “vexatious litigant,” that seven-year period is measured retroactively from the date the motion is filed (rather than the date the lawsuit was filed). Stolz v. Bank of America, supra, at 224.

Here, the time period at issue is between June 5, 2007 and June 4, 2014. The cases cited by Defendant show that Plaintiff has filed five in propria persona lawsuits within the immediately preceding seven-year period that have been finally determined adversely against Plaintiff.

Case 1: Wells v Bunnett et al, Case No. BC465092 filed on July 8, 2011. (RJN Exh D). This action was dismissed by the Court on October 26, 2011. (RJN Exh F).
Case 2: Wells v Costco Wholesale Store et al; Case No. BC465072 filed on July 8. 2011. (RJN Exh N). This action was dismissed by the Court on November 13, 2012. (RJN Exh O)
Case 3: Wells v. County of Los Angeles; Case No. BC46529l filed on July
11,2011. (RJN Exh P) This action was dismissed based upon the sustaining of the demurrer against the entire complaint without leave to amend. (RJN Exh Q)
Case 4: Wells v Bostwick, Case No. BC476224, filed on December 30. 2011. (RJN Exh R) This action was dismissed based upon the granting of a CCP §425.16 motion. (RJN Exh S)
Case 5: Wells v Matsunami, Case No. BC483398. filed on May 1, 2012. (RJN Exh T). This action was dismissed when the court granted a motion to strike per CCP §425.16. (RJN Exh U).

There are other cases cited by Defendant but the statute only requires five in pro per cases that were adjudicated against Plaintiff. The above five cases are sufficient herein. Therefore, Plaintiff is found to be a vexatious litigant.

Security: Defendant may move the court for an order requiring plaintiff to post a bond on the ground that plaintiff is a vexatious litigant and “there is no reasonable probability” that he will prevail in the litigation against the moving defendant. CCP § 391.3(a) To satisfy this burden, defendant must show either: –that plaintiff’s recovery is foreclosed as a matter of law; or –that there are insufficient facts to support recovery by plaintiff on its legal theories even if all of plaintiff’s allegations are accepted as true. Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1582. The vexatious litigant’s impecunious (and in pro per) status does not excuse compliance with the bond requirement. Id., at 1587-1588

Defendant has established that the instant action maybe barred based upon res judicata. However, Defendant’s argument is based upon two prior state court actions and a prior federal court action. The federal court action does not support this argument because a federal action will not necessarily involve the same legal issues. Nor do the two prior state court actions satisfy the defendants’ burden because the first action was dismissed by the court on procedural grounds (i.e., failure to file an amended complaint after sustaining of a demurrer) and the second action was voluntarily dismissed by Plaintiff. The two prior state court actions did not result in a final judgment “on the merits.” However, these are not fatal to the request for security. In order to plead a legal malpractice action, Plaintiff must show that but for counsel’s breach, Plaintiff would have obtained a better result and causation. In the underlying action, Plaintiff was convicted in a criminal matter. As such, Plaintiff must plead and prove that he would have been found “not guilty” in the underlying criminal matter but for counsel’s breach. The Court of Appeal, in an unpublished opinion (See Defendant’s Exh A), affirmed the conviction, thus providing evidence that Plaintiff cannot prove these two elements (i.e., better result and causation). Defendant has sufficiently shown that there is not a probability Plaintiff will prevail. The court notes that Plaintiff has not filed an opposition to dispute these issues. Defendant has requested an $80,000 bond, which is supported by the proffered evidence. Therefore, Plaintiff must post a bond in the amount of $80,000.

Per CCP §391.6, the action is stayed until 10 days after plaintiff posts the required security. If the security has not been furnished as ordered, the action will be dismissed. CCP §391.4

Pre-Filing Order: “In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a prefiling 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 judge of the court where the litigation is proposed to be filed.” CCP §391.7(a). Based on the evidence provided, it is in the interest of the public and the court to order a Pre-Filing Order.

Matter #2: Defendants’ demurrer to FAC (filed 4/10/14)

The demurrer challenges the first amended complaint based upon: (1) plaintiff has failed to state facts sufficient to constitute a cause of action for legal malpractice against Defendant; (2) this complaint is barred by res judicata, and by issue and claim preclusion; (3) Plaintiff has not alleged and cannot allege actual innocence or postconviction exoneration and (4) Plaintiff has not alleged causation.

Tentative ruling:
The action is stayed per the court’s ruling herein on the Vexatious Litigant Motion.

Discussion:

The Demurrer against the original complaint was sustained with leave to amend on February 24, 2014. The Minute Order expressly states that the Court explained the consequences of amendment. However, the court file and online scanned documents show that NO First Amended Complaint was ever filed. Further, a review of Defendant’s request for judicial notice (and the request for judicial notice of the concurrently filed motion to deem plaintiff a vexatious litigant) and Plaintiff’s opposition shows that a courtesy copy was not included.

Although it is evident that a FAC was served upon Defendants, without a copy of the FAC, it is impossible to make any ruling on the instant demurrer.

The missing FAC is not critical I this case. As provided in the discussion of the Motion for an Order Declaring Plaintiff a Vexatious Litigant, this demurrer and this action is stayed until 10 days after Plaintiff has posted a security to proceed with this action. CCP §391.6

The court sets an Order to Show Cause re posting of the bond/and or OSC re dismissal for failure to post bond on July ___, 2014 at 8:30 a.m. All other future dates are vacated.

Notice of rulings by moving party.