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Pittman v. Beck Park Apartments Ltd.

California Court of Appeals, Second District, Seventh Division

February 27, 2018

RANDALL PITTMAN, Plaintiff and Appellant,
BECK PARK APARTMENTS LTD., et al., Defendants and Respondents.

         APPEAL from an order of the Superior Court of Los Angeles County No. BC410261, Michelle R. Rosenblatt, Judge. Affirmed.

          Randall Pittman, in pro. per., for Plaintiff and Appellant.

          No appearance for Defendants and Respondents.

          PERLUSS, P. J.

         On May 28, 2010 the trial court declared Randall Pittman a vexatious litigant and prohibited him, pursuant to Code of Civil Procedure section 391.7, from filing in propria persona any new litigation in the courts of this state without first obtaining leave of the presiding judge or justice of the court where the litigation is proposed to be filed. Over the past seven years Pittman has made several attempts to have that order stricken, reconsidered, vacated or overturned. This appeal is from the trial court's most recent denial of Pittman's motion to vacate the order declaring him a vexatious litigant. We affirm.


         1. The Complaint and First Amended Complaint

         On March 23, 2009 Pittman, representing himself, sued his former landlord, Beck Park Apartments Ltd., its parent company, Goldrich & Kest Industries LLC, and their attorneys, Kimball, Tirey & St. John LLP, for wrongful eviction, race and disability discrimination, retaliation, fraud, intentional infliction of emotional distress, unfair business practices and bad faith retention of security deposit. Pittman subsequently amended the complaint to substitute for previously named Doe defendants his former employers, Siemens Healthcare Diagnostics Inc. and Siemens Corporation (collectively Siemens), TEG Staffing Inc. and Unified Technical, Inc., and his former attorneys, Hicks & Hicks; Arias, Ozzello & Gignac, LLP; Krieger & Krieger; and Westrup Klick, LLP. On June 18, 2009 Pittman voluntarily dismissed Kimball Tirey, and on November 6, 2009 he voluntarily dismissed Beck Apartments and Goldrich & Kest Industries pursuant to Code of Civil Procedure section 581.[1]

         Pittman filed a first amended complaint on December 2, 2009 that abandoned the claims related to his landlords and the wrongful eviction and instead alleged employment-related claims of discrimination, retaliation, failure to prevent retaliation, blacklisting, intentional infliction of emotional distress, as well as a claim for legal malpractice. The first amended complaint named as defendants the former employers and attorneys previously added to the complaint by substitution.

         2. The Vexatious Litigant Motions

         On January 26, 2010 TEG Staffing moved to declare Pittman a vexatious litigant pursuant to section 391, subdivision (b).[2] Six weeks later Pittman voluntarily dismissed TEG Staffing from the litigation.[3]

         On March 16, 2010 Siemens moved to declare Pittman a vexatious litigant pursuant to section 391, subdivision (b).[4] Siemens contended Pittman was a vexatious litigant pursuant to section 391, subdivision (b)(1), which defines a vexatious litigant to include a self-represented litigant who “[i]n 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.” Siemens asserted Pittman had commenced and represented himself in five actions between 2006 and 2008, each of which had been voluntarily dismissed, adjudicated against Pittman or abandoned. Three of those actions named Siemens or related entities as defendants.

         Siemens also asserted Pittman was a vexatious litigant pursuant to section 391, subdivision (b)(3), which defines a vexatious litigant to include anyone 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.” Siemens argued Pittman's pleadings were unmeritorious and redundant. Specifically, Pittman had filed three lawsuits against Siemens alleging the same wage-and-hour violations based on 15 months of employment in 2003 and 2004. Pittman had also added Siemens as a defendant in a fourth lawsuit against another former employer even though his employment with the two entities was unrelated.

         Siemens further argued Pittman repeatedly engaged in harassing and unnecessary tactics. For example, during three of his previous lawsuits against Siemens, Pittman had filed five motions to disqualify the presiding judges. Each motion was denied. Siemens stated Pittman sent “harassing and intimidating” emails to opposing counsel, one of which included “an extended diatribe about 9/11, the war in Iraq, pharmaceutical companies, and the inequities of the criminal justice system, ” while in another, Pittman stated, “[L]et them know that that was only one battle because the war will end in the courtroom and that is where I must die.” Pittman did not oppose the vexatious litigant motion but instead dismissed Siemens from the case on April 5, 2010.

         A hearing on the vexatious litigant motions was held on April 12, 2010. Pittman appeared, but TEG Staffing's and Siemens's counsel, believing the vexatious litigant motions had been taken off calendar due to their clients' dismissals, did not appear. The court stated the dismissals did not “necessarily moot the motion, because I can take judicial notice of the court's records.” The court questioned Pittman regarding the five lawsuits discussed in Siemens's motion. Pittman stated three of the cases were pending on appeal. Pittman also asked the court whether Siemens could still bring the motion given its dismissal from the case. The court stated, “They brought the motion, then you tactically dismissed them out.” Pittman replied that was correct; and the court continued, “But it has been brought to my attention, and I have the power on my own to review cases [regarding] anyone who might be considered a vexatious litigant. That's the inherent power of the court.” The court stated it would continue the hearing on the vexatious litigant motions pending the outcome of the appeals and granted Pittman additional time to oppose the motions.

         Rather than file an opposition, Pittman appeared ex parte on April 19, 2010 seeking an order “striking the false pleadings alleged in [Siemens's vexatious litigant motion] pursuant to the Court's own motion” and denying Siemens's motion. In his memorandum of points and authorities Pittman argued he did not meet the statutory definition of a vexatious litigant because the five prior lawsuits cited by Siemens were pending on appeal, pending before the United States Department of Labor or had been re-filed after dismissal. Siemens's counsel was not served with notice of Pittman's ex parte application and did not appear. It is not apparent from the record precisely what occurred during the ex parte hearing. In his brief on appeal Pittman states the court issued an order “declaring that Appellant was not a vexatious litigant.” However, the court's minute order states only that Pittman's ex parte application was granted and the hearing date for the vexatious litigant motion was vacated. The day after the hearing, pursuant to the court's order, Pittman prepared and served a notice of ruling, which stated his application for an order striking Siemens's vexatious litigant motion and for an order denying the vexatious litigant motion had been granted.

         On April 22, 2010 Siemens's counsel appeared ex parte seeking an order striking or clarifying Pittman's notice of ruling. In a declaration supporting the motion Siemens's counsel stated she had not been served with Pittman's ex parte application and, upon receiving the notice of ruling, she had contacted the court clerk, who informed her the court had not ruled on Siemens's vexatious litigant motion, but had merely taken it off calendar. Siemens asserted Pittman had fabricated the notice of ruling to make it appear the court had denied the vexatious litigant motion so that Pittman could assert collateral estoppel in another proceeding where the defendants had moved to declare him a vexatious litigant. After hearing argument from Pittman and Siemens's counsel, the trial court vacated its minute order of April 19 and re-set Siemens's vexatious litigant motion for hearing. The court again set a deadline for Pittman to respond to the motion.

         3. Pittman's Voluntary Dismissal of the Action

         On April 26, 2010 Pittman filed a request for dismissal of the entire action pursuant to section 581. The request was entered as requested by the clerk on the same date.

         On April 30, 2010 Siemens filed a supplemental brief in support of its motion to declare Pittman a vexatious litigant. Siemens contended Pittman's dismissal of the action was a “desperate, last-ditch effort” to avoid a ruling on the vexatious litigant motion and argued, relying on Bravo v. Ismaj (2002) 99 Cal.App.4th 211, that the trial court had authority to decide the motion despite the dismissal. Siemens also stated Pittman met the standard for a vexatious litigant despite his pending appeals because, since Siemens's motion was filed, Pittman had voluntarily dismissed two additional cases and a third case had been dismissed for failure to prosecute. Siemens recounted additional frivolous tactics in which Pittman had engaged since the filing of the motion, including “libelous, ” “offensive and demeaning” emails to opposing counsel. In one email Pittman told Siemens's counsel they “need to get off that ‘crack pipe.'” Finally Siemens stated that, in a pending action in which Pittman was not a party, he had moved to join the action as a plaintiff and add 21 Doe defendants. Siemens represented that the plaintiff and defendants in that action would be opposing Pittman's motion.

         4. The Order Declaring Pittman a Vexatious Litigant

         The trial court heard argument on Siemens's vexatious litigant motion on May 28, 2010. Counsel for Siemens and counsel for G&K Management and Beck Park Apartments appeared at the hearing. Pittman did not appear. At the conclusion of the hearing the court granted Siemens's motion and declared Pittman to be a vexatious litigant pursuant to section 391, subdivision (b), and issued a prefiling order pursuant to section 391.7.[5]

         On June 8, 2010 Pittman moved ex parte for an order clarifying or striking the May 28 vexatious litigant order. Pittman argued the order was procured by fraud because counsel for defendant Unified Technical had told Pittman the motion had been taken off calendar due to Pittman's dismissal of the action.[6] Pittman further contended the issue whether he was a vexatious litigant had already been determined in the negative in two other proceedings. First, Pittman stated a vexatious litigant motion had been “denied... in its entirety” in 2009 in a lawsuit he brought, and subsequently dismissed, against his former employer Day & Zimmerman Group Inc.[7] Second, Pittman stated a similar motion had been denied in June 2010 in another action he brought, and subsequently dismissed, against G&K Management.[8] Pittman also contended ...

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