Case Number: BC465483    Hearing Date: July 24, 2014    Dept: 1

#1 – Clay v. Skyline Owners Association, et al. (BC 465 483)

Plaintiff Pauline Clay, aka Pauline Clay-Hunter, was deemed a vexatious litigant by Judge Reginald A. Dunn, in civil action BC 121 678, on March 14, 1996, and notice of Judge Dunn’s ruling was mailed to Plaintiff Clay at least by April 1, 1997, when her appeal of that action had run its course. On July 14, 2011, Plaintiff Clay filed this action in propria persona to stop the imminent foreclosure of her Skyline Condominium unit for her alleged failure to pay homeowners’ association dues. This BC 465 483 action was mistakenly filed by the court clerk without requiring that Plaintiff Clay first obtain a pre-filing order pursuant to CCP § 391.7. Now, Plaintiff Clay moves this court after-the-fact to issue a “pre-filing” order granting her leave nunc pro tunc to file or, more precisely, continue prosecuting this action. Plaintiff Clay also moves the court, pursuant to CCP § 391.8, to remove her from the Judicial Council’s Vexatious Litigant List. Both motions are opposed by Defendants Skyline Owners Association and Property Resources Management, Inc., which are joined by Defendant Lily Enterprises, Inc.

Plaintiff Clay’s motion for a pre-filing order basically argues that this action, which has been prosecuted on her behalf by Attorney Morris S. Getzels since July 31, 2013, was not filed by her to harass or cause delay. Rather, Plaintiff Clay initially filed this action to stop the foreclosure proceedings commenced by the Defendants. Plaintiff Clay has since continued her litigation in order to be reimbursed for the costs of repair and the cost of alternative housing she has incurred, as well as the severe physical and emotional injury she has suffered, on account of the repeated flooding of her condominium unit that was the result of the Defendants’ purportedly gross negligence. She further attributes her failure to first seek a pre-filing order before commencing this action to her lack of knowledge that she was a vexatious litigant. Plaintiff Clay maintains that she did not know of her status until November 20, 2012, and she did not advise her prospective counsel, Mr. Getzels, that she had been deemed a vexatious litigant because she did not believe it was necessary. Mr. Getzels, in turn, declares that he did not learn of the Plaintiff’s status until June 13, 2014. Yet, Mr. Getzels argues that the Plaintiff should not be ordered to post bond, since he is now representing the Plaintiff and the Plaintiff’s claims are meritorious.

Plaintiff Clay is opposed both on her motion for a pre-filing order and on her motion to be removed from the Judicial Council’s Vexatious Litigant List by means of essentially the same arguments, which she addresses in her reply papers. Since the Plaintiff claims that her condominium unit sustained six catastrophic plumbing failures from July of 2009 to January of 2013 – at least one of which was concealed from her, the Defendants argue that the Plaintiff flooded her own unit and did not document the failures with the Defendants’ security guards. The Plaintiff, on the contrary, maintains that she did inform the Defendants, whose security guards documented the incidents. Because the Defendants argue that the Plaintiff on one occasion denied their security entrance into her home to investigate a leak, the Plaintiff insists that she did not deny entry to Defendants’ security but was actually unconscious as a result of a fall suffered on account of sewage back up in her unit. Since the Defendants argue that the Plaintiff caused the water from sewer lines to back up into her own unit (and into other units) by capping her own plumbing, the Plaintiff claims that her actions were meant as defensive measures to prevent the sewage from backing up into her own unit. Given that the Defendants contend the Plaintiff failed to serve the original complaint in this case, the Plaintiff argues that her alleged failure to serve the complaint was actually due to a misunderstanding on the part of the Defendants’ employees as to the nature of her legal pleadings. When the Defendants argue the Plaintiff has not cooperated with discovery in this case – particularly with respect to evasive answers and a deposition she begged off on account of “emotional distress” – the Plaintiff responds only as to the deposition, claiming that she had not slept in days, but did provide the Defendants substantial documentary material. Finally, because the Defendants reference twelve cases that the Plaintiff is said to have litigated since she was declared a vexatious litigant, the Plaintiff highlights the fact that the Defendants have not shown the outcome of those matters, the Plaintiff notes that seven of the cases are more than seven years old, the Plaintiff denies that she was a party to two of the matters, and the Plaintiff avers that one of the actions involved a custody dispute. Both sides’ arguments and the undisputed facts of this case yield different results for the Plaintiff’s two motions.

In relation to Plaintiff’s motion for a pre-filing order, it is within the authority of this court to hear and grant pursuant to CCP § 391.7(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 – 1173. 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 – 687.

Nonetheless, if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay, this court must permit the filing of the litigation. CCP §§ 391.7(b), 391.7(c). This court may also order the furnishing of security for the Defendants only if there is no reasonable probability the Plaintiff will prevail. CCP §§ 391.3(a), 391.7(b), and 391.7(c). Plaintiff Clay, in this instance, has been prosecuting an action that is not patently frivolous, but is prima facie meritorious given the alleged catastrophic plumbing failures that are alleged to have occurred in her condominium unit. Also, in light of her representation by Mr. Getzels, the Plaintiff has a reasonable probability of success on her claims in the absence of possible terminating sanctions for discovery abuses. The Plaintiff, therefore, should be allowed to pursue her claims by way of legal counsel and not be made to post bond.

Accordingly, pursuant to CCP § 391.7, the court hereby issues the Plaintiff a pre-filing order granting her leave to continue prosecuting this action.

Next, with respect to her CCP § 391.8 motion, the Plaintiff should seek relief from the justice or judge who entered the order, if that justice or judge is available. CCP § 391.8(a); Luckett v. Panos (2008) 161 Cal.App.4th 77, 96 (The proper court for an individual seeking to have a CCP § 391.7 pre-filing order erased is the very court that entered it in the first place.). If that justice or judge who entered the order is not available, the application shall be made before the presiding justice or presiding judge, or his or her designee. CCP § 391.8(a). Because Judge Dunn is no longer available, it behooves this court to consider the Plaintiff’s CCP § 391.8 motion.

Pursuant to CCP § 391.8, a vexatious litigant subject to a pre-filing order under CCP § 391.7 may file an application to vacate the pre-filing order and remove his or her name from the Judicial Council’s list of vexatious litigants subject to pre-filing orders. CCP § 391.8(a). The pre-filing order may be vacated and removal of a vexatious litigant’s name from the Judicial Council’s list of vexatious litigants be ordered only upon a showing of a material change in the facts upon which the order was granted and that the ends of justice would be served by vacating the order. CCP § 391.8(c). Thus, while a vexatious litigant determination may be erasable, erasure requires substantial evidence that the vexatious litigant has mended his ways or conduct. Luckett, supra, 161 Cal.App.4th at 83. Substantial evidence that bears on whether a vexatious litigant has mended his ways is not some success in litigation, but evidence that he has given up suing people as a way of life. Id., at 93 – 94. Such evidence includes proof of a propensity for honesty, of efforts at obtaining gainful employment, of genuine remorse for the costs of litigation inflicted on the defendants who were the object of previous lawsuits, and of some genuine effort at restitution toward the previous victims of his litigation, including actual payment of cost orders made by the courts in prior litigation. Id.

In this regard, the evidence now available suggests that the Plaintiff has failed to conduct herself in an entirely transparent fashion vis-à-vis this court, the parties, and her own attorney. She neglected to apply for a CCP § 391.7(a) pre-filing order, despite having been notified by the court clerk over seventeen years ago that she had been declared a vexatious litigant. The Plaintiff neglected to inform her attorney that she was declared a vexatious litigant under the unbelievable excuse that she did not deem it necessary. Such conduct is highly suspect – especially of an individual that is no stranger to litigation, and it raises questions regarding the Plaintiff’s honesty. Honesty, moreover, is the least that the court can demand from a litigant – particularly since much of vexatious litigation is the product of the vexatious litigant’s propensity for dishonesty. See Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 541. Such conduct thus validates the court’s assessment that the Plaintiff has not mended her ways or character.

Accordingly, this court hereby DENIES the Plaintiff’s motion to be removed from the Judicial Council’s Vexatious Litigant List