The opinion of the court was delivered by: Phyllis J. Hamilton United States District Judge
Before the court is defendants' motion to dismiss the above-entitled action for failure to state a claim and for lack of subject matter jurisdiction. Plaintiff filed no written opposition to the motion. Having read defendants' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS the motion. In view of plaintiff's failure to file a written opposition by the July 9, 2008, deadline set by the Civil Local Rules of this court, and the court's determination that the motion is appropriate for decision without oral argument, the hearing on the motion, previously noticed for July 30, 2008, is hereby VACATED.*fn1
Plaintiff Fred A. Whitaker filed this action on March 26, 2008, against defendants Alameda County Superior Court; Superior Court of the County of San Francisco; David Ballati, Judge of the Superior Court of California, County of San Francisco; and Yolanda Northridge, Frank Roesch, Carl Morris, and George C. Hernandez, Jr., Judges of the Superior Court of California, County of Alameda. Plaintiff challenges the procedures followed by the California courts in declaring him a vexatious litigant, and also challenges the constitutionality of California's Vexatious Litigant Statute.
Under the Vexatious Litigant Statute, California Code of Civil Procedure § 391, et seq., a defendant in state court may move the court to require a pro se plaintiff to provide security if the defendant can make a showing that the plaintiff is a vexatious litigant and there is not a reasonable probability that the plaintiff will prevail in the litigation against the moving party. Cal. Civ. P. Code §§ 391.1, 391.3.
The Vexatious Litigant Statute defines "vexatious litigant" as 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) In 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.
(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence. Cal. Civ. P. Code § 391(b).
Once a plaintiff has been declared a vexatious litigant within the meaning of the statute, the court may also enter an order prohibiting the plaintiff from filing new state court litigation*fn2 absent leave of the presiding judge where the litigation is proposed to be filed. Id. § 391.7(a). This order is known as a "prefiling order." The clerk is not permitted to file any litigation presented by a vexatious litigant who is subject to a prefiling order unless the litigant first obtains an order from the presiding judge permitting such filing. Id. § 391.7(c).
The judge may condition the filing of the litigation on the furnishing of security for the benefit of the defendants, as provided in § 391.3. Id. § 391.7(b).
Parties subject to prefiling orders in California state courts are placed on a statewide list -- the "Vexatious Litigant List" -- maintained by the Judicial Council of California and disseminated to the clerks of the state courts. Id. § 391.7(e). The Vexatious Litigant Statute has survived several constitutional challenges in California courts. See Wolfe v. Strankman, 392 F.3d 358, 361 (9th Cir. 2004). In recent years, plaintiff has filed numerous lawsuits in both state and federal court.
In 1991, the Superior Court of California, County of Alameda, found plaintiff to be a vexatious litigant within the meaning of California Code of Civil Procedure § 391.2. On November 22, 1991, the Alameda County Superior Court issued an order pursuant to Code of Civil Procedure § 391.7, requiring plaintiff to obtain a prefiling order in any future litigation in any court of the State of California. On November 26, 1991, the clerk notified the Judicial Council of the entry of the prefiling order. In 1992, in a separate action, the California Court of Appeal also found plaintiff to be a vexatious litigant within the meaning of Code of Civil Procedure § 391(b)(1) and (b)(3), and entered a prefiling review order. See In re Whitaker, 6 Cal. App. 4th 54 (1992). The ...