2019-00252706-CU-PO

Michael Clark vs. CDCR

Nature of Proceeding: Motion to Declare Plaintiff Vexatious Litigant (Defendants Amaya, et al.)

Filed By: Hennes, Lucas L.

*** Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov. ***

This matter is on calendar for oral argument only. The tentative ruling previously issued by the Court is set forth below.

This matter was originally set for hearing on 8/7/2019 but was continued to this date to permit the Court to consider plaintiff’s opposition papers and to permit defendants to file a reply to his opposition. The Court, having now considered the opposition and reply papers, issues the following tentative ruling.

Defendants Amaya, et al.’s motion to declare plaintiff in pro per Michael Clark, currently in the custody of California Department of Corrections and Rehabilitation

(“CDCR”), a vexatious litigant pursuant to Code of Civil Procedure §391(b)(1), to require him to post security before further prosecution of this action and to issue a prefiling order pursuant to Code of Civil Procedure §391.7(e) is ruled on as follows.

Defendants’ Request for Judicial Notice (“RJN”) of various court documents purporting to show six actions and/or appeals commenced by plaintiff Clark while acting in pro per is GRANTED.

Defendants now seek a declaration that plaintiff Clark is a vexatious litigant on the grounds that he has in the preceding seven (7) years maintained while acting in pro per five (5) or more unsuccessful civil actions (excluding small claims matters) as required by Code of Civil Procedure §391(b) and that he has “no reasonable probability” of prevailing against defendants in the current litigation.

Plaintiff opposes, arguing that defendants have failed to demonstrate plaintiff has maintained five or more unsuccessful civil actions in the preceding seven years and that plaintiff has unsuccessfully maintained no more than three actions in this time period. More specifically, while defendants contend at least six unsuccessful actions since March 2012, plaintiff asserts that Exhibits 1 and 2 to defendants’ RJN relate to one action which resulted in an adverse judgment and subsequent appeal and that the same is true with respect to Exhibits 3 and 4. Additionally, although the opposition concedes Exhibit 5 is a voluntary dismissal of a federal court action, plaintiff asserts this cannot be counted as an unsuccessful action because he re-filed the action in state court and remains pending after the Court of Appeal reversed an adverse judgment and remanded the action to the trial court in Lassen County. The opposition maintains that Exhibit 6 does not count as an adverse determination because the appeal was dismissed as moot, due to plaintiff being transferred from the prison allegedly violating the Administrative Procedures Act in issuing a regulation prohibiting the possession of certain types of objects. Finally, according to the opposition, plaintiff has more than a reasonably probability of prevailing on the claims alleged in the present action, thereby precluding a determination he is a vexatious litigant and requiring him to post security before further prosecuting this action.

In their reply defendants claim the opposition relies on inapplicable provisions of Code of Civil Procedure §391 and that contrary to plaintiff’s suggestion, his appeals from trial court losses count as separately-maintained litigations for purposes of this motion.

The reply also contends that plaintiff’s voluntary dismissal of his federal action counts against him regardless of whether he re-filed in state court, as does the dismissal of his appeal due to mootness. Defendants conclude with the reasons why plaintiff has no probability of prevailing in the current lawsuit.

Analysis

Code of Civil Procedure §391 provides in pertinent part:

As used in this title, the following terms have the following meanings:

(a) “Litigation” means any civil action or proceeding, commenced, maintained or pending in any state or federal court.

(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) …
(Underline added for emphasis.)

In Fink v. Shemtov (2010) 180 Cal.App.4th 1160, the Fourth District Court of Appeal considered whether a plaintiff was properly declared to be a vexatious litigant under §391(b)(1), the same provision on which defendants rely in the present case. The Court first agreed with McColm v. Westwood Park Assn. (1998 (overruled on other grounds)) 62 Cal.App.4th 1211 to the extent the latter found that the term “litigation” necessarily includes any appeal or writ proceeding in either state or federal court, before turning to its analysis of whether the trial court correctly concluded the plaintiff had unsuccessfully in the preceding seven years maintained at least five separate litigation matters which were finally determined adversely to him. (Fink, at 1169-1171.) Since the plaintiff did not argue that any of the 15 litigations which the trial court cited fell outside the seven year period or that any of them were not maintained in pro per, the Court of Appeal focused on whether at least five of the cases were actually “finally determined adversely to him.” (Fink, at 1171.)

Even though the issues on appeal in Fink related only to the application of §391(b)(1)’s provisions, the Court of Appeal cited with approval Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, where the Fifth District Court of Appeal first noted that the vexatious litigant statute “does not define the phrase ‘final determination against the same defendant…’” as used in §391(b)(2) before concluding that “a judgment is final for all purposes when all avenues for direct review have been exhausted.” (Fink, at 1174 (citing Childs, at 993.) Thus, according to Fink, the same standard applies regardless of whether a vexatious litigant determination is sought under §391(b)(1) or under §391(b)(2) despite their slight variation in language.

Applying this standard for determining whether plaintiff in the case at bar has in the preceding seven years maintained at least five litigations which have been “finally determined adversely to the [plaintiff],” this Court is not persuaded that plaintiff’s unsuccessful appeal in Clark v. CDCR, et al. (reflected in Exhibit 2 to defendants’ RJN) counts against plaintiff as a litigation separate and apart from the litigation commenced in the Lassen County Superior Court (reflected in Exhibit 1 to defendants’ RJN). The same is true for plaintiff’s unsuccessful appeal in Clark v. Beard, et al. (reflected in Exhibit 4 to defendants’ RJN) and the underlying litigation commenced in the Lassen County Superior Court (reflected in Exhibit 3 to defendants’ RJN). Instead, these four exhibits actually represent no more than two separate litigations maintained by plaintiff which were ultimately determined adversely to him.

Consequently, even assuming plaintiff’s voluntary dismissal of his federal action (reflected in Exhibit 5 to defendants’ RJN) and plaintiff’s 2015 appeal from the adverse judgment in the Sacramento County Superior Court case entitled Clark v. Beard, et al. (reflected in Exhibit 6 to defendants’ RJN) constitute separate litigations which were

“finally determined adversely to [plaintiff],” defendants have failed to demonstrate the existence of at least five separate litigations which were in the last seven years finally determined adversely to plaintiff. Therefore, the present motion must be denied regardless of whether plaintiff can establish a “reasonable probability” of prevailing in the present suit.

Disposition

For the reasons explained above, defendants’ motion to declare plaintiff in pro per Michael Clark a vexatious litigant pursuant to Code of Civil Procedure §391(b)(1) must be and hereby is DENIED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Item 19 2019-00252706-CU-PO

Michael Clark vs. CDCR

Nature of Proceeding: Motion to Declare Plaintiff Vexatious Litigant (Defendants Lee and

Filed By: Hennes, Lucas L.

*** Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov. ***

This matter is on calendar for oral argument only. The tentative ruling previously issued by the Court is set forth below.

Please see the tentative ruling issued in connection with defendants Amaya, et al.’s motion to declare plaintiff in pro per Michael Clark a vexatious litigant pursuant to Code of Civil Procedure §391(b)(1), to require him to post security before further prosecution of this action and to issue a prefiling order pursuant to Code of Civil Procedure §391.7

(e).