2018-00229451-CU-CR

James C. Maxey vs. Anne Marie Schubert

Nature of Proceeding: Motion to Declare Plaintiff a Vexatious Litigant (Joinder)

Filed By: Rivera, Jesse M.

The Motion to Declare Plaintiff James Maxey a Vexatious Litigant, filed by Defendants

County of Sacramento Board of Supervisors, Anne Marie Schubert, Susan Peters and Sheriff Scott Jones, and joined by Gov. Edmund G. Brown, is GRANTED.

Defendants’ Request for Judicial Notice is granted.

In reaching its ruling on the motion, the Court has received and considered the Motion and Points and Authorities in support thereof; the declaration of Jesse M. Rivera in support of same; and Defendant’s Request for Judicial Notice, which provides copies of certain lawsuits filed by Plaintiff James Maxey. The Court has also reviewed its own records in considering this motion.

The California vexatious litigant statutes were enacted to “deal with the problem created by the persistent and obsessive litigant who has constantly pending a number of groundless actions[.]” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 634-635.) “Their abuse of the system not only wastes court time and resources but also prejudices other parties waiting their turn before the courts.” (Singh v. Lipworth (2005) 132 Cal.App.4th 40, 44.) The statutory scheme is intended to address the “persistent and obsessive litigant” who cause “serious financial results to the unfortunate objects of his or her attacks and places an unreasonable burden on the courts.” (In re Kinney (2011) 201 Cal.App.4th 951, 958; Morton v. Wagner (2007) 156 Cal.App.4th 963, 970-971.) The vexatious litigant statutes were enacted to restrain misuse of the legal system by self-represented parties who continually relitigate the same issue. (Luckett v. Keylee (2007) 147 Cal.App.4th 919.)

California Code of Civil Procedure section 391 defines the basis upon which a Plaintiff in propria persona may be declared a “vexatious litigant.” A vexatious litigant is a person who, in the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five separate litigations that either have been finally determined adversely to the person or permitted to remain pending at least two years without having been brought to trial or hearing. (C.C.P. § 391(b) (1).) Actions that may be included within the Court’s evaluation of the preceding seven-year period include trial court, appellate and writ proceedings ( McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216); actions that the plaintiff voluntarily dismissed (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 407); and complaints that were stricken or never properly served (In re Whitaker (1992) ii6 Cal.App.4th 54, 56). An action may be properly included within the “immediately preceding seven-year period” so long as it was filed or maintained during that period. ( Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 225.) The applicable seven-year period is measured from the time the motion to declare a plaintiff a vexatious litigant is filed.

Code of Civil Procedure section 391(b)(2) further defines a vexatious litigant as a person who, “[a]fter 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.” To satisfy the requirement that the relitigation be “repeated,” the plaintiff must have attempted such litigation of the same issue more than two times. (Holcomb v. United States Bank Nat’l Ass’n. (2005) 129 Cal.App.4th 1494, 1504.)

Prior Lawsuits

Defendants contend that Plaintiff has filed or maintained, in propria persona, at least five unsuccessful actions in this Court state and federal courts over the last three years. Defendants also point to an Order of the United States District Court for the Eastern District of California, dated August 10, 2015, which declared Plaintiff to be a vexatious litigant after filing 172 lawsuits in that forum. The Court’s review of its own records reflect that Plaintiff has filed maintained 17 unsuccessful lawsuits in this Court in the last seven years.

Vexatious Litigant Requirements

Defendants contend that Plaintiff is a vexatious litigant pursuant to CCP § 391(b), which, as noted, provides that a vexatious litigant is a person who: (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.

The Court’s examination of the referenced lawsuits reflects that all were filed in this Court within seven years preceding the filing of Defendant’s instant motion, they were all commenced in propria persona, and all were finally determined adversely to Plaintiff, primarily through Plaintiff’s own voluntary dismissal of the case. (CCP § 391 (b)(1).) A voluntary dismissal constitutes a matter having been “finally determined adversely against the plaintiff for purposes of establishing a vexatious litigant pursuant to Code of Civil Procedure section 391(b)(1). (See Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779 [“A party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the actions through to completion.”].)

In addition, the primary basis for all but two of the lawsuits filed in this Court arise from Plaintiff’s belief that he has somehow been implanted with subdermal microchips to allow various local, state, federal, and international governmental figures and others to monitor him at will. The federal district court similarly observed that the vast majority of the 172 lawsuits that Plaintiff had filed in that court were also summarily dismissed “due to Mr. Maxey’s implausible allegations that, inter alia, he has been subjected to ‘satellite microchip implant technology’ by various government actors.” (See Def. RJN, Exh. A, p. 1.) Thus, on numerous occasions, Plaintiff has attempted to litigate the very same issue that he now alleges in the instant lawsuit.

The Court concludes that Defendants have satisfactorily demonstrated that Plaintiff has filed well in excess of five lawsuits over the past seven years, most of which alleged the exact same purported harm.

Reasonable Probability of Prevailing

Code of Civil Procedure § 391.3 provides, in part: “[I]f, after hearing evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix.”

Plaintiff meets the criteria established to declare him a vexatious litigant. Defendants contend there is no reasonable possibility that Plaintiff can prevail in this action and request that the Court require Plaintiff to post a security in an unspecified amount further enter a pre-filing order requiring Plaintiff to seek leave to the presiding judge prior to filing future litigation.

Unless Plaintiff can show that he has a reasonable probability of prevailing, the Court may enter an order requiring the posting of an undertaking to permit this action to proceed. As noted, this motion remains unopposed.

Defendants address the various allegations contained in the complaint, which set forth claims based on moving Defendants’ alleged use of the satellite tracking of Plaintiffs’ purported subdermal microchips and thereby subject him to “imposed human experimentation, physical and mental torture … and has beamed deadly levels of electromagnetic radiation into his body.” (Compl. ¶ 4.) Plaintiff alleges that moving Defendants have conducted observation and warrantless surveillance of Plaintiff (id.) and he alleges various state and federal claims against Defendants.

While the Court perceives plaintiff fiercely believes the truth of his claims, the Court finds no basis for potential success of Maxey’s claims. While Plaintiff alleges that his claims accrued on March 8, 2018, it is clear that he has been asserting essentially the same claims for well over seven years in this Court and in the federal Court; thus, his claim would indeed be time-barred. Further, as Defendants note, Maxey has failed to allege compliance with the Government Claims Act (Govt. Code § 945.4), which requires that any suit for money or damages against a public entity must be preceded by written claim to the public entity and acted upon or rejected. The claims presentation requirement is mandatory (Williams v. Horvath (1976) 16 Cal.3d 834; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454.) Defendants aver that Plaintiff has not filed any tort claims and Plaintiff has not opposed this argument.

Next, res judicata/collateral estoppel very likely precludes Plaintiff’s instant lawsuit. Res judicata and collateral estoppel require three common elements: “‘(1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding.’” (People v. Barragan (2004) 32 Cal.4th 236, 253.) Collateral estoppel also requires the additional elements that the issue to be precluded was actually litigated and necessarily decided. (Lucido v. Superior Court (1990) 51 Cal.3d 335; Taylor v. Hawkinson (1957) 47 Cal.2d 893, 895-896.) The “‘necessarily decided’” requirement generally means only that the resolution of the issue was not “‘entirely unnecessary’ to the judgment in the initial proceeding.” (Lucido, at 342.) Application of these doctrines, and the definition of a “claim or issue” is based on the primary right theory. (Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682.) Under California law, the significant factor guiding application of primary right theory is whether the claim or issue pertains to a single primary right; whether the same facts are involved in different lawsuits is not conclusion. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 954-955.) When applied, the primary rights theory precludes relitigation not only of claims resolved in a prior action, but also litigation of claims that could have been brought in the prior action but were not. “The law abhors a multiplicity of actions…. [A] a party cannot by negligence or design withhold issues and litigate them

in successive actions; he may not split his demands or defenses; he may not submit his case in piecemeal fashion.” (Flickinger v. Swedlow Engineering Co. (1955) 45

Cal.2d 388, 393.) Here, Plaintiff continues to file successive lawsuits against various Defendants based on the single idea that he was implanted with microchips at the time of his birth and continues to be monitored by various government agencies.

For the foregoing reasons, in light of the federal court’s related ruling, and in consideration of the multiplicity of nearly identical lawsuits that Plaintiff has filed and voluntarily dismissed in this Court, the Court concludes there is no reasonable probability of Plaintiff prevailing in this litigation. The Court notes that this ruling is confined to evaluation of Defendants’ instant motion and is not, nor should it be construed as, a substantive ruling regarding the various causes of action contained in Plaintiff’s operative Complaint. Such determination is properly the function of a demurrer, motion for judgment on the pleadings, or motion for summary judgment/adjudication.

Order

The Court finds and hereby orders, pursuant to CCP § 391.7, that Plaintiff is a vexatious litigant.

A court may, on its own motion or the motion of any party, enter a pre-filing order that requires a vexatious litigant to seek leave of the presiding judge before filing new litigation; it may predicate future legal actions on the posting of a security, and the clerk must notify the Judicial Council of the vexatious litigant order. (CCP § 391.7(a) &

(f).) Such an order may be viewed as a form of injunction. (Luckett v. Panos (2008) 161 Cal.App.4th 77, 85; PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 978.) If a vexatious litigant seeks to file new litigation in propria persona, after the entry of a pre-filing order, the presiding judge may permit the filing if it appears that the litigation has merit and has not been filed for the purpose of harassment or delay. (CCP § 391.7(b).) The court may require security to be posted as a prerequisite to maintaining the lawsuit. (CCP §391.7(b).)

Accordingly, the Court further orders that James C. Maxey is prohibited from filing any further litigation in propria persona, in any court in California without first obtaining leave from the presiding judge of that court. The presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendant, as provided in CCP § 391.3. Plaintiff is cautioned that disobedience of this order may be punished as contempt of court. (CCP § 391.7.)

Defendants’ Motion to post security is granted in part. While Defendants have not specified a sum certain as to the security Plaintiff should post, the Court concludes that an appropriate security is $10,000. Plaintiff is ordered to post this amount on or before July 20, 2018; if Plaintiff fails to post the specified amount by the date ordered, Plaintiff’s case will be dismissed.

The Clerk is directed to forward a copy of this Order to the California Judicial Council. (CCP § 391.7(f).)

Defendant shall prepare a formal order for the Court’s signature pursuant to CRC 3.1312.