Motion to Vacate Prefiling Order (DRAFT)

8/3/2019 Motion to Vacate Prefiling Order (DRAFT)

http://slidepdf.com/reader/full/motion-to-vacate-prefiling-order-draft 1/54

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NOTICE PAGE 1 OF 2 1-08-CV-119008

TO STUART GLASGOW, DEFENDANT, AND TO REBECCA MOON, HIS ATTORNEY OF RECORD:

NOTICE IS HEREBY GIVEN that, on [date], at [time], or as soon thereafter

as the matter may be heard, in Department [number] of this Court, located

at 191 North First Street, in San Jose, Plaintiff, James Alan Bush, will,

and hereby does, move for an order dissolving the order declaring the

plaintiff a vexatious litigant and imposing preling restrictions, which

was granted on October 2nd, 2008 [see Exhibit “A”]. The motion will be made

on the grounds that it would serve the ends of justice to reverse the

preling order in light of the Court’s failure to correctly establish this

James Alan Bush

471 East Julian Street

San Jose, California 95112

(408) 791-4866

Plaintiff in pro per

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

CIVIL DIVISION

James Alan Bush,

Plaintiff,

v.

Stuart Glasgow, et al.,

Defendants.

Case No. 1-08-CV-119008

NOTICE OF MOTION AND MOTION FOR ORDER

DISSOLVING PERMANENT INJUNCTION,

SUPPORTING DECLARATION OF PLAINTIFF,

AND SUPPORTING MEMORANDUM

[Code Civ. Proc. § 533]



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NOTICE PAGE 2 OF 2 1-08-CV-119008

determination, as is shown by the subsequent denial of an identical Motion

to Declare Plaintiff a Vexatious Litigant by the United States District

Court on August 23rd, 2010 [see Exhibit “B”], which contains the same

arguments, and exhibits supporting those arguments, as the motion brought

in the Superior Court [compare Exhibits “C” and “D”].

The motion will be based on this notice of motion, on the declaration

of the plaintiff, on the exhibits attached hereto, and on the memorandum

of points and authorities served and led in this proceeding, on the

papers and records on le, and on such oral and documentary evidence as

may be presented at the hearing of the motion.

Dated: November 28th, 2011

By: X

James Alan Bush


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DECLARATION PAGE 1 OF 3 1-08-CV-119008

I, James Alan Bush, declare:

1. I am the plaintiff in the within action.

2. On October 2nd, 2008, the court granted an injunction requiring the

plaintiff to obtain leave of the presiding judge prior to ling new

litigation in propria persona and to post security for the defendants’

reasonable expenses pursuant to Code Civ. Proc. §§ 391, 391.1, 391.3

[see Exhibit “A”].

3. Since that time, and, in particular, on November 23rd, 2009, a Motion

to Declare Plaintiff a Vexatious Litigant was led in another matter

James Alan Bush



(408) 791-4866




CIVIL DIVISION

James Alan Bush,

Plaintiff,

v.


Defendants.

Case No. 1-08-CV-119008

DECLARATION OF PLAINTIFF IN SUPPORT OF

MOTION FOR ORDER DISSOLVING PERMANENT

INJUNCTION




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then pending in the United States District Court, specically, under

docket number 09-CV-01022 (PR) RS [Bush v. Winslow, et al.], which was

identical to the motion brought in the Superior Court, in that only

the case name and parties were changed in the caption, while the

argument and supporting exhibits remained the same [compare Exhibits

“B” and “C”]; however, on August 23rd, 2010, the Honorable Judge Richard

Seeborg, Judge, U.S. District Court, denied the motion on the grounds

that “there is not sufcient evidence that plaintiff’s suits were

patently without merit. ...[T]he record reects that many of the actions

were dismissed for failure to prosecute, not, as far as the Court can

tell, because the claims were frivolous or led with the intention of

harassing. The actions are varied enough in both the nature of the

claims and in the defendants served to escape the label of frivolous

or harassing” [see Exhibit “D”, Order Denying Defendant’s Motion to

Declare Plaintiff a Vexatious Litigant].

4. Since the time of his designation as a vexatious litigant by this

Court the plaintiff has not led any other actions, and none of

the actions pending at that time have been adversely determined

against the plaintiff; rather, two cases were adjudicated in favor

of the plaintiff, and the remaining were already consolidated into

an aggregate of claims, which was led in the United States District

Court under docket number C 08-01354 PJH [James Alan Bush v. Sunnyvale

Department of Public Safety, et al.].

5. [evidence proferred doesn’t meet criteria of statutes]

6. [requested relief and grounds therefor]

7. change in facts indicating a mending of his ways or conduct to support

a reversal of the original determination [“behavior of the plaintiff



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changed...”, in that no further actions were led]


By: X

James Alan Bush




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MEMORANDA PAGE 1 OF 9 1-08-CV-119008

Plaintiff proffers the following argument and points of law in support of

his motion to dissolve the order designating him a vexatious litigant:

I. THE COURT MAY DISSOLVE AN INJUNCTION ON A SHOWING THAT THE ENDS OF

JUSTICE WOULD BE SERVED. IN THIS CASE, THE COURT FAILED TO CORRECTLY

ESTABLISH ITS DETERMINATION OF THE PLAINTIFF AS A VEXATIOUS LITIGANT.

THEREFORE, UNDER THE CIRCUMSTANCES, THE ENDS OF JUSTICE WOULD BE BEST

SERVED BY DISSOLVING THE INJUNCTION IN THIS ACTION

Dissolution of Injunction. In any action, the court may on notice

dissolve an injunction upon a showing that the ends of justice would

James Alan Bush



(408) 791-4866




CIVIL DIVISION

James Alan Bush,

Plaintiff,

v.


Defendants.

Case No. 1-08-CV-119008

MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION FOR DISSOLUTION

OF INJUNCTION




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be served by the dissolution of the injunction [Code. Civ. Proc.

§ 533].

II. A PREFILING ORDER IS AN INJUNCTION THAT CAN BE REVERSED UNDER CODE

OF CIVIL PROCEDURE § 533

The preling order authorized by Code Civ. Proc. § 391.7 may be

viewed as a form of injunction reversible under Code Civ. Proc. § 533

[PBA, LLC, v. KPOD, Ltd. (2003) 112 Cal.App. 4th 965, 978, 5 Cal.Rptr.

3d 532].

III. CASE LAW ESTABLISHES THAT A MOTION TO DISSOLVE A PREFILING ORDER IS

PROPERLY BROUGHT IN THE ISSUING COURT

The court issuing the order is best situated to receive evidence and

hold hearings on the question of whether a litigant is vexatious,

including on reconsideration or appeal [Bravo v. Ismaj (2002) 99 Cal.

App.4th at p. 219, 120 Cal.Rptr.2d 879].

IV. CASE LAW ESTABLISHES THAT THE COURT MUST CONDUCT A SUBSTANTIVE

REVIEW OF THE EVIDENCE SUPPORTING ITS DESIGNATION OF PLAINTIFF AS A

VEXATIOUS LITIGANT WHEN EVALUATING ITS PREVIOUS RULING

If a plaintiff contends that the order declaring him a vexatious

litigant was improper and requests a review of the order, the

issuing court must review the order for substantial evidence [Bravo,

supra, 99 Cal.App.4th 211, 219, 120 Cal.Rptr.2d 879 (Bravo)]; and,

although the reviewing court is required to presume the order

declaring a litigant vexatious is correct, it must imply ndings

necessary to support that designation, and is required to reverse

the order where there is insufcient evidence to do so [Roston v.

Edwards (1982) 127 Cal.App.3d 842, 848, 179 Cal.Rptr. 830].

V. AFTER CONDUCTING A COMPREHENSIVE REVIEW OF SAME ARGUMENT AND SAME



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EVIDENCE PROFFERED BY THE DEFENDANT, A DISTRICT COURT DENIED AN

IDENTICAL MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT

On August 23rd, 2010, the Honorable Judge Richard Seeborg, Judge,

U.S. District Court, issued an order denying a motion to declare

plaintiff a vexatious litigant, which was identical to the same

motion brought by the defendant, word-for-word [compare Exhibits “A”

and “B”], on the grounds that “there is not sufcient evidence that

plaintiff’s suits were patently without merit. ...[T]he record reects

that many of the actions were dismissed for failure to prosecute,

not, as far as the Court can tell, because the claims were frivolous

or led with the intention of harassing. The actions are varied

enough in both the nature of the claims and in the defendants served

to escape the label of frivolous or harassing” [see Exhibit “B”,

Order Denying Defendant’s Motion to Declare Plaintiff a Vexatious

Litigant].

III. THE COURT INCORRECTLY BASED ITS DETERMINATION ON EVIDENCE SUBMITTED

BY THE DEFENDANT THAT FAILS TO MEET ANY OF THE CRITERIA LISTED UNDER

CODE OF CIVIL PROCEDURE § 391(b) SUPPORTING A VEXATIOUS LITIGANT

DESIGNATION

The Court designated the plaintiff a vexatious litigant primarily on

the mere showing by the defendant that the plaintiff led a large

number of suits; however, evidence that a litigant is a frequent

plaintiff alone is insufcient to support a vexatious litigant

designation [Roston, supra, 127 Cal.App.3d at 847, 179 Cal.Rptr. 830].

At the time the plaintiff was designated a vexatious litigant, there

was no evidence that any litigation was resolved against him, nor

that he continued to attempt to relitigate the issues against the



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same defendants, as required by subdivision (b)(2). In addition,

both the Court and the defendant failed to acknowledge that, in

spite of the number of suits led by the plaintiff, each of them

were directed against different defendants and for differing claims,

and that none of them progressed beyond the initial ling of the

complaint. Consequently, there was no evidence of a persistent or

obsessive litigiousness by the plaintiff, or that the suits brought

by the plaintiff had caused any defendant serious nancial hardship

or that the plaintiff’s actions placed an unreasonable burden on the

Court.

IV. THE COURT’S DESIGNATION OF THE PLAINTIFF AS A VEXATIOUS LITIGANT IS

INCONSISTENT WITH THE SPECIFIC REQUIREMENTS OF THE STATUTE BASED UPON

THE EVIDENCE AVAILABLE AT THE TIME THE RULING WAS ISSUED

“[A] person is not a vexatious litigant unless a court has found that

he comes within the denitions of [Code of Civil Procedure] section

391.” (Ibid.) That section sets forth four separate denitions of

vexatious litigant, and a court must nd that the litigant falls

under one of the four.

A. THE EVIDENCE PROVIDED BY THE DEFENDANT DOES NOT SHOW THAT

AT LEAST FIVE CASES WERE DETERMINED ADVERSELY AGAINST THE

PLAINTIFF WITHIN THE MEANING OF CODE OF CIVIL PROCEDURE

§ 391(b)(1)

The defendants failed to show that at least ve case were

determined adversely to the plaintiff or that any case has

been unjustiably permitted to remain pending for at least

two years without having been brought to trial or hearing, as

required to obtain an order designating him as a vexatious



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litigant per Code Civ. Proc. § 391(b)(1). And, although even a

voluntary dismissal without prejudice is considered an adverse

determination for purposes of Code Civ. Proc. § 391(b)(1), the

defendant failed to show, and the record does not establish,

that any of the dismissed actions were a burden, nancial or

otherwise, on the target of the litigation or on the judicial

system, in that (1) the defendants varied in each suit (in

other words, the plaintiff is not involved in litigation with

just the defendant); (2) none of the defendants were yet served

summons or did any defendant le an answer to the plaintiff’s

complaint in any cases prior to the ling of the aggregate of

claims in the U.S. District Court; and, (3) court resources were

not expended by any hearings or the like prior to the ling

of the aggregate of claims in the district court. Therefore,

the purpose of the vexatious litigant statutes in this regard,

which is to address the problem created by the persistent

and obsessive litigant who constantly has pending a number of

groundless actions and whose conduct causes serious nancial

results to the unfortunate objects of his or her attacks and

places an unreasonable burden on the courts, does not apply

to the claims led by the plaintiff [Wolfe v. Strankman (9th

Cir.2004) 392 F.3d 358; People v. Harrison (2001) 92 Cal.App.4th

780, 112 Cal.Rptr.2d 91].

B. THE COURT ERRONEOUSLY CONSIDERED FEDERAL CASES IN ITS

DESIGNATION OF PLAINTIFF AS A VEXATIOUS LITIGANT, BUT CASE LAW

ESTABLISHES THAT FEDERAL CASES ARE NOT CONSIDERED LITIGATION

WITHIN THE MEANING OF INTENDED BY CODE CIV. PROC. § 391(a)



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The defendant presented as evidence several federal cases

brought by the plaintiff to support its argument that the

plaintiff led the same claim in multiple venues, not only

failing to acknowledge that the federal cases were an aggregate

of state claims no longer being pursued in state court, but

asking the Court to consider this as the type of conduct

dening a vexatious litigant.

In Roston, supra, 127 Cal.App.3d 844, 845, 848 Cal.Rptr. 830,

the Court established that the term ‘litigation’ as dened in

the vexatious litigants statute [Code Civ. Proc. § 391(a)] does

not include civil actions or proceedings in federal courts

located in California, but only to civil actions or proceedings

in California state courts; rather, the ztatute reads, “court

of this state,” not “courts in this state.” This distinction

is made, for example, in California statute Evid. Code § 452,

which authorizes the taking of judicial notice, provides that

judicial notice may be taken of “(d) Records of (1) any court

of this state or (2) any court of record of the Unigted States

or of any state of the United States.” Consequently, the Court

in Roston held that the phrase “court of this state” in section

391, subdivision (a), refers only to California state courts,

and not to federal courts sitting in California, and the

litigation nally determined in section 391, subdivision (b)(2),

must have been a civil action or proceeding in a California

state court.

Therefore, the evidence proferred by the defendant that

consists of federal cases must be discounted, and any decision



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based on these cases must be reconsidered.

C. NEITHER THE EVIDENCE NOR THE RECORD SHOWS ANY CASES THAT HAVE

BEEN FINALLY DETERMINED OR THAT PLAINTIFF HAS ATTEMPTED TO

RELITIGATE ANY CLAIM AS REQUIRED FOR A VEXATIOUS LITIGANT

DESIGNATION UNDER CODE CIV. PROC. § 391(b)(2)

Neither the evidence proffered by the defendant nor the record

shows that any claim was judged by any court to be nally

determined. In spite of the plaintiff’s failure to properly

transfer venue and consolidate the claims dismissed for failure

to prosecute notwithstanding, the plaintiff led an aggregate

of those in the U.S. District Court under docket number

C 08-01354 PJH prior to his designation as a vexatious litigant.

Wherever claims are still pending, there has not yet been

a nal determination in those claims [Childs v. PaineWebber

Inc. (1994) 29 Cal.App.4th 982, 993, 35 Cal.Rptr.2d 93]; and,

a judgment is not nal within the meaning of Code Civ. Proc.

§ 391(b)(2) unless all avenues for direct review have been

exhausted {First Western Development Corp. v. Superior Court

(1989) 212 Cal.App.3d 860, 864, 261 Cal.Rptr. 116]. Consequently,

the plaintiff could not have attempted to relitigate any issue

that has been nally determined as required by Code Civ. Proc.

§ 391(b)(2) for a vexatious litigant designation; and, although

not applicable in this case, it is established by case law that

even when a plaintiff attempts to relitigate a matter that had

been nally determined in one court and then les a similar

action in another court, he does not repeatedly litigate within

the meaning of Code Civ. Proc. § 391(b)(2) [Holcomb v. U.S. Bank



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(2005) 129 Cal.App.4th 1494, 1505-1506, 29 Cal.Rptr.3d 578].

D. NEITHER THE EVIDENCE NOR THE RECORD DEMONSTRATES ANY TACTICS

THAT WERE FRIVOLOUS OR SOLELY INTENDED TO CAUSE DELAY PER CODE

CIV. PROC. § 391(b)(3)

The defendant failed to show or allege, and the Court

failed to nd, that the record reects any attempt by the

plaintiff to repeatedly le unmeritorious motions, pleadings,

or other papers, conduct unnecessary discovery, or engage

in other tactics that are frivolous or solely intended to

cause unnecessary delay, as required for a vexatious litigant

designation by Code Civ. Proc. § 391(b). While there is no

bright line rule as to what constitutes “repeatedly,” most

cases afrming the vexatious litigant designation involve

situations where litigants have led dozens of motions either

during the pendency of an action or relating to the same

judgment [Bravo, supra, 99 Cal.App.4th at p. 225, 120 Cal.Rptr.2d

879 (litigant led numerous motions contesting appointment of

the special discovery master; six motions challenging judge

or his rulings; ve motions for sanctions against opponent,

opponent’s attorney, judge and special master; a motion for

continuance; and a motion for new trial)]. In Bravo, the court

found that approximately 20 motions constituted “repeated”

because they all arose during the same action and many of

the motions were identical to motions previously brought and

denied. This is hardly the case in the instant matter, in that

this motion is the rst such motion that the plaintiff has led

seeking the Court’s reconsideration of a previous decision, and



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it has yet to be unsuccessful; moreover, instead of rearguing

facts the Court has already considered, or arguing that the

evidence did not support the issuance of a preling order, or

disputing the veracity of facts that supported his designation

as a vexatious litigant, the plaintiff has proved that neither

the law nor the facts available at the time the designation was

made support this conclusion.

In addition, none of the plaintiff’s claims were actually

deemed ‘unmeritorious’ or ‘frivolous’ types of claims

contemplated by the vexatious litigant statute. Not all failed

claims can support a vexatious litigant designation. The claims

must be so devoid of merit and be so frivolous that they can

be described as a “‘agrant abuse of the system,’” have “no

reasonable probability of success,” lack “reasonable or probable

cause or excuse” and are clearly meant to “‘abuse the processes

of the courts and to harass the adverse party than other

litigants.’” [See Wolfgram v. Wells Fargo Bank (1997) 53 Cal.

App.4th 43, 55, 61 Cal.Rptr.2d 694.] The claims were dismissed

for failure to prosecute immediately following the initial

ling of the complaint; no issues were ever adjudicated, and in

all but one claim, the defendants failed to le an answer to

the complaint.


By: X

James Alan Bush


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EXHIBIT A PAGE 1 OF 3 1-08-CV-119008

EXHIBIT

“A”



EXHIBIT B PAGE 1 OF 4 1-08-CV-119008

EXHIBIT

“B”



EXHIBIT C PAGE 1 OF 20 1-08-CV-119008

EXHIBIT

“C”




Case3:09-cv-01022-RS Document28 Filed11/23/09 Page1 of 20



EXHIBIT D PAGE 1 OF 13 1-08-CV-119008

EXHIBIT

“D”

Motion to Vacate Prefiling Order (DRAFT)

Documents

Transcript of Motion to Vacate Prefiling Order (DRAFT)