Case Number: BC640572 Hearing Date: April 12, 2018 Dept: 1

#1 – Whitfield Derick Lester Payne dba DLP Transportation v. Christopher William Sachtleben (BC640572)

Derick Payne was formally declared a vexatious litigant on February 17, 2009 in Court of Appeal cases B207780 (Payne v. County of Los Angeles) and B210356 (Payne v. Okorocha et al.), and again on April 20, 2009 by Comm. Walter H. Kubelun in Riverside County Superior Court family law case RID203422 (Reid v. Payne), which Judicial Council records erroneously show to be a Los Angeles County Superior Court case. Under those orders, Mr. Payne became subject to a CCP § 391.7 prefiling requirement by which he is required to get the permission of the presiding judge to file new litigation, which permission is granted only if it appears the litigation has merit and is not being filed for purposes of harassment or delay. CCP § 391.7(b). In Los Angeles Superior Court, the presiding judge has designated the supervising judge of the civil division to exercise this authority and responsibility. See CCP § 391.7(e).

In a March 14, 2018 minute order in cases BC640572, BC670232, and BC678637, this court set this Order to Show Cause (“OSC”) re: (1) Why the alternate names of Whitfield Payne, Whitfield D. Payne, Whitfield Derick Lester Payne, Whitfield Derick Lester Payne dba DLP Transportation, DLP Transportation, and Whitfield DL Payne should not be added as “aka” names for Mr. Payne on the Judicial Council of California’s vexatious litigant list; and (2) Why cases BC640572, BC670232, and BC678637 – filed under these alternate names – should not be dismissed for Mr. Payne’s failure to obtain a prefiling order. The court ordered Mr. Payne to file any response to the OSC in Department 1 no later than five court days before the OSC date.

On March 26, 2018 the Court of Appeal denied Mr. Payne’s request to vacate the prefiling order that issued in cases B207780 and B210356. It appears that on March 28, 2018 Riverside County Superior Court also denied Mr. Payne’s request to vacate the prefiling order that issued in case RID203422.

To date, the court has received no response per se to the April 12, 2018 OSC; however, on April 3, 2018 “Whitfield D. Payne,” in propria persona, lodged three MC-701 “REQUEST TO FILE NEW LITIGATION BY VEXATIOUS LITIGANT” Judicial Council forms, arguably in lieu of a response to the OSC. In the applications, Mr. Payne seeks retroactive permission to allow the subject three unlimited jurisdiction civil law cases to be filed – or in this case, more properly, to proceed (since the complaints were erroneously accepted for filing by the court clerk on November 14, 2016; July 27, 2017; and October 6, 2017, respectively).

(1) Whitfield Payne, Whitfield D. Payne, Whitfield Derick Lester Payne, Whitfield Derick Lester Payne dba DLP Transportation, DLP Transportation, and Whitfield DL Payne are “aka” Names for Mr. Payne to be Added to the Vexatious Litigant List

The same person – Whitfield D. Payne – submitted these MC-701 forms on behalf of (1) case BC640572 plaintiff Whitfield Derick Lester Payne dba DLP Transportation and (2) case BC678637 plaintiff Whitfield DL Payne in addition to himself (as the plaintiff in case BC670232). Also, he did so in response to the prefiling order requirement imposed on Derick Payne that was noted in this court’s March 14, 2018 order.

Whitfield D. Payne has admitted on the record that he is the same Derick Payne who is on the vexatious litigant list. (See March 7, 2018 minute order in case BC670232.)

Because of all this, the court finds that Mr. Payne has conceded if not evidenced that the alternate names of Whitfield Payne, Whitfield D. Payne, Whitfield Derick Lester Payne, Whitfield Derick Lester Payne dba DLP Transportation, DLP Transportation, and Whitfield DL Payne are “aka” names for Derick Payne.

The court finds all these litigants to be the same person, and the court orders the clerk to notify the Judicial Council of California, which maintains the vexatious litigant list, that these “aka” names should be added to Derick Payne’s name on the list.

(2) Case BC640572 May Proceed, but Cases BC670232 and BC678637 – Filed under these Alternate Names – Should be Dismissed for Mr. Payne’s Failure to Obtain a Prefiling Order

Since Mr. Payne filed cases BC640572, BC670232, and BC678637 under these alternate names without first obtaining prefiling orders, his cases may be dismissed unless the court finds, retroactively, that each litigation has merit and has not been filed for the purposes of harassment or delay and thus the court issues a retroactive “prefiling” order allowing that litigation to proceed. See CCP § 391.7(b) and (c). Under CCP § 391.7(c), litigation that was improperly commenced in propria persona by a plaintiff subject to a pre-filing order remains subject to dismissal at any point in its pendency, not only at the early stages. Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1172-73. Thus, a vexatious litigant, who—although subject to a pre-filing order—nevertheless files an improper in propria persona lawsuit, faces the possibility that the lawsuit will be dismissed pursuant to CCP § 391.7(c), regardless of the impact that a dismissal will have on the vexatious litigant. Kovacevic v. Avalon at Eagles’ Crossing Homeowners Assn. (2010) 189 Cal. App. 4th 677, 686-87.

At ¶¶ 3 and 4 of each Form MC-701 received on April 3, 2018, where the litigant is given the opportunity to explain why the litigation has merit and is not being filed for purposes of harassment or delay, Mr. Payne indicates that each case involves damage to his vehicle for which he has not been compensated (in case BC640572, related to a May 16, 2016 accident, because the other driver has admitted fault but his insurance company Progressive has failed to fully compensate Mr. Payne; in case BC670232, related to a 2017 accident, because the other driver lacked insurance; and in case BC678637, related to a 2017 accident at Los Angeles International Airport, because the other driver’s insurance company Progressive has failed to fully compensate Mr. Payne). Mr. Payne asserts that each “is a simple case dealing with personal & business property damages, being a vehicle duly licensed as a limousine under the California Public Utilities Commission as TCP 0030902-P.” Additionally as to case BC640572, Mr. Payne also indicates at ¶ 4 that he was almost killed in the accident and continues to suffer and receive treatment for his fractured back and leg injuries.

There are no exhibits attached to any of the MC-701 applications. The information submitted by Mr. Payne with his retroactive requests to file new litigation fails to make a sufficient showing, as required by CCP § 391.7(b), that any of the three cases has merit and is not being filed for purposes of harassment or delay.

When the court additionally considers the exhibits attached to the cases’ pleadings (each case is referenced at ¶ 2 of the related MC-701 form), the court finds that Mr. Payne has made a sufficient CCP § 391.7(b) showing as to only one of the cases, as discussed below.

(a) Case BC640572

In case BC640572, attached to the complaint are the following documents: (1) what appears to be a printout dated August 30, 2016 from Alamo reflecting $1012.12 in charges for a five-day vehicle rental of an unidentified vehicle to an unidentified renter at $160/day, with “Chrysler 300” handwritten across the top; (2) an October 24, 2016 letter from Progressive Insurance to Law Offices of Jacob Emrani, with a “cc” to DLP Transportations/Derick Payne, regarding a May 16, 2016 accident and claim number 16-3224775, indicating the insurer is considering paying for 45 days of loss of use at $15/day for a total of $675, and acknowledging the vehicle was at the repair facility for over 60 days; (3) DLP Transportation’s August 15, 2016 invoice to Progressive Insurance for $7,653.11 for loss of use of vehicle based on 89 days at $85.99 daily rental, referencing file number 16-322475 [sic]; and DLP Transportation’s November 14, 2016 invoice to Progressive Insurance for $74,100.00 for loss of business income based on 156 days at $475/day, referencing file number 16-322476 [sic].

Without commenting on entitlement to the ultimate relief sought, the court finds that through these exhibits Mr. Payne has made a sufficient showing, as required by CCP § 391.7(b), that his proposed litigation has merit and is not being filed for purposes of harassment or delay. The court grants a retroactive prefiling order to allow Mr. Payne to continue litigating this case.

(b) Case BC670232

In case BC670232, there are no documents attached to the complaint. As such, plaintiff Whitfield D. Payne – whom this court found to be the same person as vexatious litigant Derick Payne – has also failed to present sufficient evidence in his complaint of the liability of the defendants, Donald Alexander Wagner and Valerie Young, or sufficient evidence to support his claims for damages ($15,000.00 for vehicle repair, $16,800.00 for loss of income, and $8,000.00 for loss of use).

The court finds the information submitted by Mr. Payne fails to make a sufficient showing, as required by CCP § 391.7(b), that case BC670232 has merit and is not being filed for purposes of harassment or delay. The court denies a retroactive prefiling order that would have allowed Mr. Payne to continue litigating this case.

(c) Case BC678637

In case BC678637, attached to the complaint are the following documents: (1) pages 1-2 of a 4-page September 14, 2017 Damage Appraisal report from United Financial Cas Co for a 2009 GMC Yukon XL C1500 SLT owned by Derick Payne, noting a September 8, 2017 date of loss (claim #17-4549041-02) and estimating $587.97 (8.9 hours labor) to repair the front bumper (Exh. A); (2) a September 14, 2017 invoice from George Chevrolet for a 2009 GMC Yukon XL SUV owned by DLP Transportation showing $0.00 due and noting a diagnosis of “evap vent valve stuck,” not affecting the vehicle’s drivability, on the owner’s complaint of the “check engine” light being on; the owner declined the repair, estimated at $397.78 (Exh. B); and (3) DLP Transportation’s September 20, 2017 invoice to Progressive Insurance for $9,300.00 for loss of earnings based on 12 days at $775/day and $397.79 to repair the “engine on” light, referencing file number 17-4549041 (Exh. C).

Plaintiff Whitfield DL Payne – whom this court found to be the same person as vexatious litigant Derick Payne – has also failed to present sufficient evidence in his complaint of the liability of the sole defendant, Alehea Winston, or sufficient evidence to support his claims for damages (an estimated $2,200.00 for body repairs to the vehicle, $397.00 for mechanical repairs, and an estimated $26,800.00 for loss of income).

The court finds the information submitted by Mr. Payne fails to make a sufficient showing, as required by CCP § 391.7(b), that case BC678637 has merit and is not being filed for purposes of harassment or delay. The court denies a retroactive prefiling order that would have allowed Mr. Payne to continue litigating this case.

Conclusions

(1) The court finds that the names Whitfield Payne, Whitfield D. Payne, Whitfield Derick Lester Payne, Whitfield Derick Lester Payne dba DLP Transportation, DLP Transportation, and Whitfield DL Payne are “aka” names for Derick Payne. Accordingly, the court orders the clerk to notify the Judicial Council of California, which maintains the vexatious litigant list, that these “aka” names should be added to Derick Payne’s entry on that list. The court also orders the clerk to notify the Judicial Council of California that case RID203422 in which Mr. Payne was declared vexatious was a Riverside County Superior Court case rather than a Los Angeles County Superior Court case.

(2) The court GRANTS Mr. Payne’s request for retroactive prefiling order to allow him to continue litigating case BC640572 (Payne dba DLP Transportation v. Sachtleben).

The court DENIES Mr. Payne’s requests for retroactive prefiling orders that would have allowed him to continue litigating cases BC670232 (Payne v. Wagner, et al.) and BC678637 (Payne v. Winston). The court hereby advances and vacates all hearing dates currently set in cases BC670232 and BC678637, and orders cases BC670232 and BC678637 dismissed for Mr. Payne’s failure to obtain the necessary prefiling orders.

Clerk to give notice.