SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

DE WANA BALLOU,

Plaintiff,

vs.

 

PAYPAL HOLDINGS, INC., et al.,

 

Defendants.

        CASE NO.: 19STCV06877

[TENTATIVE] ORDER RE: MOTION TO DECLARE PLAINTIFF AS A VEXATIOUS LITIGANT; TO FURNISH SECURITY; AND REQUESTING ISSUANCE OF A PREFILING ORDER

Date:  February 4, 2020

Time: 8:30 a.m.

Dept. 56

FSC: May 4, 2020

Non-Jury Trial: May 18, 2020

MOVING PARTIES: Defendant eBay, Inc. (“Moving Defendant”)

RESPONDING PARTY: Plaintiff De Wana Ballou

            The Court has considered the moving, opposition, and reply papers. Despite Plaintiff’s argument that Moving Defendant’s memorandum exceeds 15 pages, the Court exercises its discretion and will consider Moving Defendant’s moving papers in their entirety.

BACKGROUND

This is an action in which Plaintiff, via her First Amended Complaint, alleges that Defendants wrongfully suspended her valid eBay account, appearing to allege causes of action for: (1) violation of California Business and Professions Code, Section 17200; and (2) intentional interference with economic relationship.

Moving Defendant filed a motion for an order declaring Plaintiff a vexatious litigant pursuant to California Code of Civil Procedure, Section 391.  Moving Defendant also requests that the Court issue an order requiring Plaintiff to furnish security and prohibiting Plaintiff from filing any new litigation without first obtaining leave of Court.

JUDICIAL NOTICE

            On its own motion, the Court takes judicial notice of PayPal’s request for judicial notice filed on April 2, 2019 (“RJN 1”) and Moving Defendant’s request for judicial notice filed on April 11, 2019 (“RJN 3”).

DISCUSSION

A vexatious litigant is one 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.”  (Code Civ. Proc. § 391(b)(2).)  A vexatious litigant is also one who “[i]n any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.”  (Code Civ. Proc. § 391(b)(3).)  Pursuant to California Code of Civil Procedure, Section 391 a vexatious litigant can be a plaintiff who is appearing in an action in propria persona.  “Section 391 . . . permits a court to stamp as a vexatious litigant one who, in propria persona, repeatedly relitigates, against the same defendant, either the validity of a final determination or the same controversy already finally determined.”  (Taliaferro v. Hoggs (1965) 237 Cal.App.2d 73, 74.)  Vexatious litigants “abuse . . . the system . . . wastes court time and resources but also prejudice[] other parties waiting their turn before the courts.”  (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008.)  “[A] court’s decision that a vexatious litigant does not have a reasonable probability of success is based on an evaluative judgment in which the court is permitted to weigh evidence.”  (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 408.)

Issue No. 1: Section 391(b)(2)

“Vexatious litigant statutes were created to curb misuse of the court system by those acting in propria person a who repeatedly relitigate the same issues.”  (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 220-221.) A vexatious litigant is one 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.”  (Code Civ. Proc. § 391(b)(2).)

Moving Defendant’s Evidence in Support of its Motion

Moving Defendant presents the declaration of its counsel, David I. Holtzman (“Holtzman”), who declares that: (1) Plaintiff, acting in propria persona, has filed four successive lawsuits—with multiple iteration of complaints—against Moving Defendant, all which make the same bizarre and largely incoherent allegations (Holtzman Decl. at ¶ 3); (2) all four of the lawsuits are based on the same set of facts and raise the same issues which are the suspension of Plaintiff’s eBay account “facetruth” and purported damage to her reputation when Moving Defendant declared her to no longer be a “registered user” (Id.); (2) the first action, Los Angeles Superior Court case number BC583106 (the “First Action”), was filed on May 27, 2015 (Id. at ¶ 4; RJN 1 at Exhibit A); (2) Moving Defendant filed a demurrer to the complaint, a hearing was held, and the demurrer in the First Action was sustained with leave to amend (Id. at ¶ 4); (3) Judge Lyons admonished Plaintiff to properly plead a cause of action against Moving Defendant (Id.); (4) Plaintiff filed a First Amended Complaint in the First Action on October 13, 2015 which failed to allege sufficient facts and arose out of he same set of facts as the initial complaint and Moving Defendant’s demurrer thereto was sustained without leave to amend (Id. at ¶ 5; RJN 1 at Exhibits B and D); and (5) Plaintiff did not file an appeal; however, on December 31, 2015 which was a few days prior to the hearing on Moving Defendant’s demurrer to the First Amended Complaint in the First Action, Plaintiff filed a new lawsuit against Moving Defendant in Los Angeles Superior Court case number BC605870 (the “Second Action”) (Id. at ¶ 6; RJN 1 at Exhibit E.)

Holtzman declares that: (1) Plaintiff did not serve the complaint in the Second Action until after the hearing on the demurrer in the First Action was completed and after receiving an adverse ruling in the First Action; (2) Moving Defendant filed notices of related cases which Judge Lyons granted and transferred the Second Action to her department (Id. at ¶ 7; RJN 3 at Exhibit O); (3) Moving Defendant filed a demurrer to the initial complaint but Plaintiff not only filed an opposition but also filed a First Amended Complaint (Id. at ¶ 7; RJN 1 at Exhibit F); (4) Moving Defendant filed another demurrer to the First Amended Complaint in the Second Action based on the fact that it did not allege any wrongdoing against Moving Defendant and was also premised on the suspension of Plaintiff’s account, “facetruth,” and the damage to Plaintiff’s reputation (Id. at ¶ 8); (5) the Court sustained Moving Defendant’s demurrer without leave to amend and judgment was entered (Id. at ¶ 8; RJN 1 at Exhibit G); (6) Plaintiff did not file an appeal but instead filed a Fifth Amended Complaint despite the Court entering its ruling already, the rejection of the Court of her motion to file the Fifth Amended Complaint, and Plaintiff filed a Fifth Amended Complaint anyway on June 20, 2016  (Id. at ¶ 9; RJN 3 at Exhibits U and V); and (7) and when this filing was rejected, Plaintiff filed a third action (the “Third Action”), Los Angeles County Superior Court case number BC627598.  (Id. at ¶ 9.)

Holtzman declares that: (1) the Third Action’s first complaint recounted the same factual allegations as the five prior iterations, the account suspension and the harm to her reputation (Id. at ¶ 10); (2) Plaintiff included a new allegation for “security breach” but failed to explain what the breach was or how it caused her harm (Id. at ¶ 10; RJN 1 at Exhibit I); (3) in December 2016, the trial court sustained Moving Defendant’s demurrer to the complaint without leave to amend except the negligence cause of action which the trial court sustained with leave to amend (Id. at 11; RJN 1 at Exhibit K); (4) on December 27, 2016, Plaintiff filed two first amended complaints alleging a single cause of action for negligence based on the suspension of her eBay account  (Id. at ¶ 12; RJN 1 at Exhibit J); (5) the Court sustained Moving Defendant’s demurrer to the first amended complaint in the Third Action without leave to amend on May 2, 2017 (Id. at ¶ 12; RJN 1 at Exhibit K); and (6) Plaintiff appealed the trial courts order and the appellate court sustained the trial court’s order granting Moving Defendant’s demurrer without leave to amend.  (Id. at ¶ 13; RJN 1 at Exhibit M.)

Holtzman further declares that: (1) on March 4, 2019, Plaintiff filed the instant action against Moving Defendant alleging substantially similar allegations as to her last three actions and they raise the same facts as her previously dismissed actions (Id. at ¶ 14); (2) Moving Defendant filed a demurrer to the instant action based on the grounds of res judicata and unclean hands, and the fact that Plaintiff has not alleged facts to support the causes of action she alleges (Id. at ¶ 15); (3) Moving Defendant has not answered Plaintiff’s complaint in the fourth action as its demurrer is pending before the Court (Id.); (4) after Plaintiff responded to Moving Defendant’s demurrer and Moving Defendant replied, she filed an improper second opposition to the demurrer on August 12, 2019 and a resurrected motion for judgment o the pleadings which had already been denied (Id. at ¶ 16; Id. at Exhibits X and Y); (5) Plaintiff has filed numerous motions and pleadings solely to burden and harass Moving Defendant (Id. at ¶ 17; RJN 3 at Exhibits P, Q, S, W, U, V, and X); (6) Plaintiff did not prevail on any of these motions (Id. at ¶ 18); (6) there is no reasonable possibility that Plaintiff will prevail no her resurrected motion for judgment on the pleadings since the basis for the Court’s earlier denial has not changed (Id.); (7) having been defeated in her earlier three attempts, Plaintiff initiated this fourth case against Moving Defendant (Id. at ¶ 19); and (8) Moving Defendant will incur attorneys’ fees and costs in the amount of at least $2,252.50 in defending this action and requests Plaintiff be required to post security in the amount of $4,252.50.

Analysis

The Court finds that Plaintiff is a vexatious litigant under California Code of Civil Procedure, Section 391(b)(2).  A filing of a new action after the denial of a motion or dismissal of a prior action constitutes an attempt to relitigate a finally determined prior litigation.  (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1503-1504.)  Here, Plaintiff has repeatedly filed numerous actions based on the same set of facts and circumstances after each of the prior actions against Plaintiff have resulted in judgment in favor of Moving Defendant.  In assessing whether a Plaintiff comes within the scope of Section 391(b)(2), the Court looks at whether “the defendant . . . has been the target of previous relitigation attempts or the case involves facts or circumstances similar to those in which the plaintiff sought to relitigate.”” (Id. at 1505.)  Moving Defendant has clearly been the repeated target of Plaintiff’s numerous and repeated litigation attempts based on fact the Court has determined the First, Second, and Third Actions to be insufficient and without merit.   The Court thereby exercises its discretion and finds Plaintiff to be a vexatious litigant.  (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.)

Due to the Court finding Plaintiff a vexatious litigant under Section 391(b)(2), the Court need not address Moving Defendant’s argument with respect to Plaintiff being a vexatious litigant under Section 391(b)(3).

Issue No.2: Requiring Plaintiff to Furnish Security

            Moving Defendant asserts that Plaintiff should be required to furnish a security.  Plaintiff’s opposition presents no cognizable or comprehensible argument with respect to why Plaintiff should not be required to furnish security.

            California Code of Civil Procedure, Section 391.1 says that “[i]n any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing litigation.”  “The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant.”  (Code Civ. Proc. § 391.1.)  “[I]f, after hearing the 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 moving defendant, security in an amount and within such time as the court shall fix.”  (Code Civ. Proc. § 391.3.)  “When security that has been ordered is not furnished as ordered, the litigation shall be dismissed as to the benefit it was ordered furnished.”  (Code Civ. Proc. § 391.4.)

            The Court finds that based on the declaration of Holtzman, in conjunction with the evidence presented therein and requests for judicial notice, the Court finds that there is no reasonable probability Plaintiff will prevail in this action.  As indicated above, the instant actions and the prior actions against Moving Defendant are based on essentially the same facts and circumstances.  Each of the prior actions have resulted in judgment in favor of Moving Defendant.  The Court deems it appropriate to require Plaintiff to furnish security.

            Therefore, Plaintiff is ordered to furnish security in the amount of $4,252.50 within 30 days of the date of this order.

Issue No. 3: Prefiling Order

            Moving Defendant requests that the Court enter a prefiling order prohibiting Plaintiff from filing future litigation without obtaining leave of court. Plaintiff’s opposition presents no cognizable or comprehensible argument on this point.

            “[T]he 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 justice or presiding judge of the court where the litigation is proposed to be filed.  Disobedience of the order by a vexatious litigant may be punished as contempt of court.”  (Code Civ. Proc. § 391.7(a).) “The presiding justice or presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for purposes of harassment or delay.  The presiding justice or presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants.” (Code Civ. Proc. § 391.7(b).)  “The prefiling order component of the vexatious litigant statute is a necessary method of curbing those for whom litigation has become a game.”  (PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 978.)

            The Court incorporates its analysis with respect to declaring Plaintiff a vexatious litigant and requiring Plaintiff to furnish security and applies to the Court’s discussion of a prefiling order.  The Court find finds it appropriate for Plaintiff to seek a prefiling order from filing litigation without obtaining leave of court.

            Therefore, the Court will require Plaintiff to seek a prefiling order before commencing litigation in the courts of this state in propria persona.

            The Court GRANTS Moving Defendant’s motion: (1) declaring Plaintiff a vexatious litigant; (2) requiring Plaintiff to furnish security; and (3) requesting the Court enter a prefiling order prohibiting Plaintiff from filing any new litigation without leave of court.

            Moving Defendant’s motion is GRANTED in its entirety.

            Moving party is ordered to give notice of this ruling.