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Barroga v. Board of Administration

United States District Court, E.D. California

September 9, 2019

LUCIO A. BARROGA, Plaintiff,
v.
BOARD OF ADMINISTRATION, CAL.PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Defendant.

          FINDINGS AND RECOMMENDATIONS TO DISMISS WITH PREJUDICE AND TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT, ORDER TO STAY ACTION WHILE F&R IS PENDING (ECF Nos. 20, 22)

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Lucio Barroga, proceeding without counsel, brings suit against Defendant “CalPERS” concerning his retirement benefits. (ECF No. 1.) CalPERS moves to dismiss for lack of subject matter jurisdiction (11th Amdt. immunity) and for failure to state a claim (claim and issue preclusion). (ECF No. 20.) CalPERS also requests the Court declare Barroga a vexatious litigant and issue a pre-filing order against him, given that these claims have been denied multiple times by both state and federal courts since the early 1990s. (ECF No. 22.)

         After a review of the record, the undersigned recommends this action be dismissed with prejudice. Further, the undersigned finds Barroga to be a repeat, serial litigant whose multiple suits against CalPERS have made it clear that he will only continue to abuse the judicial process and inundate this district with frivolous complaints. Therefore, the undersigned recommends Barroga be deemed a vexatious litigant and a pre-filing order be instituted against him.

         Background [1]

         On May 22, 2019, Barroga filed a complaint entitled “complaint for declaratory relief under Cal Code of Civil Proc. Sec. 1062 on new or same action based on the same facts which overcomes res judicata.” (ECF No. 1.) This 382-page complaint asserts that when Barroga reached fifty years of age in 1979, he retired from his employment with the City of El Segundo. (Id. at p. 3.) Barroga opted to withdraw his retirement contributions from CalPERS, but ten years later requested by letter that he be allowed to repay these amounts so he could start receiving a monthly benefit. CalPERS denied his request. (Id.)

         From the point of CalPERS denial in the early 90s through the present, Barroga has attempted to litigate this same issue in a variety of settings. (See, generally, exhibits attached to ECF Nos. 1 and 21 (various complaints, letters, orders, judgments and appeals re: Barroga's suits against CalPERS)). Notably, Barroga's 2019 complaint raises the same issues as were raised in 2012 by Judge England of this district court. (See 2:12-cv-1121 MCE-KJN (PS), at ECF No. 1, “Complaint for declaratory relief under Cal Code of Civil Proc. Sec. 1062 on new or same action based on the same facts which overcomes res judicata.”; ECF No. 21 at p. 215.)

         CalPERS moved to dismiss in this action, asserting the same defenses as were raised in the 2012 action. (See ECF No. 20.) These issues are the same that, in 2012, Judge England deemed dispositive in his judgment and order, and are the same that the Ninth Circuit affirmed on two years later. (See 2:19-cv-921 MCE-KJN (PS) at ECF No. 32 (recommending dismissal on 11th Amendment Immunity grounds); see also Barroga v. CalPERS., 579 Fed.Appx. 613 (9th Cir. 2014) (affirming dismissal on issue and claim preclusion grounds, as well as on the Rooker- Feldman doctrine)). Barroga opposed. (ECF Nos. 26-27.)

         CalPERS also moved to declare Barroga a vexatious litigant, and requested judicial notice of Barroga's extensive litigation history. (ECF Nos. 21-22.) Barroga did not respond.

         I. Barroga's claims fail on the same grounds as in the 2012 action.

         Given that Barroga is attempting to litigate the same issues as he raised in 2012 (reinstatement of his pension), and given that CalPERS has raised the same issues in their motion to dismiss, the Court will not burden the parties with a lengthy analysis. Instead, the Court refers the parties to the findings and recommendations, order, judgment, and memorandum disposition in the 2012 action. (See 2:19-cv-921 MCE-KJN (PS) at ECF No. 32 (recommending dismissal on 11th Amendment Immunity grounds); ECF No. 45 (adopting the F&R and dismissing Barroga's complaint with prejudice); see also Barroga v. CalPERS., 579 Fed.Appx. 613 (9th Cir. 2014) (affirming dismissal of the 2012 action on issue and claim preclusion grounds, as well as on the Rooker-Feldman doctrine--which bars litigation that seeks relief from a state court decision based on an alleged error therein)).

         For the same reasons as was stated in the dismissal orders, judgment, and Ninth Circuit memorandum in the 2012 action, the undersigned recommends dismissal of Barroga's current complaint with prejudice.

         II. Barroga should be deemed a vexatious litigant, and a pre-filing order should be imposed.

         Alongside the motion to dismiss, CalPERS moved to deem Barroga a vexatious litigant, and requested the Court either require Barroga post security before the action is to proceed or issue a pre-filing order “prohibiting him from filing any new litigation without first obtaining leave of court to do so.” (ECF No. 22.) Barroga did not respond in writing to this motion.

         Legal Standard

         The district courts have the power under the All Writs Act, 28 U.S.C. § 1651(a), to issue pre-filing orders that restrict a litigant's ability to initiate court proceedings. De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). “[S]uch pre-filing orders are an extreme remedy that should rarely be used.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). However, “[f]lagrant abuse of the judicial process cannot be tolerated because it enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants.” De Long, 912 F.2d at 1148.

         Before entering a pre-filing order, a court is to: (A) give the litigant notice and a chance to be heard before the order is entered; (B) compile an adequate record for review; (C) make substantive findings about the frivolous or harassing nature of the plaintiff's litigation, and (D) narrowly tailor the vexatious litigant order “to closely fit the specific vice encountered.” Molski, 500 F.3d at 1057. The first and second factors are procedural considerations; the third and fourth factors are substantive considerations that help the district court “define who is, in fact, a ‘vexatious litigant' as well as construct a remedy that will stop the litigant's abusive behavior without unduly infringing the litigant's right to access the courts.” Id. at 1057-58. As to the substantive factors, the Ninth Circuit has found a separate set of considerations (employed by the Second Circuit Court of Appeals) provides a helpful framework. Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014) (citing Molski, 500 F.3d at 1058). These include consideration of the litigant's history, motives, representation by counsel, as well as the expense to others or burdens on the court and the possibility of other sanctions. Molski, 500 F.3d at 1058 (quoting Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)).

         Additionally, the Eastern District has adopted California's procedure from its “vexatious litigant” laws. See Local Rule 151(b) (adopting Cal. Civ. Proc. Code §§ 391-391.8). These laws were “designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants.” Shalant v. Girardi, 51 Cal.4th 1164, 1169 (2011). The statute provides, among other things, that before an action is allowed to proceed, a plaintiff will be required to furnish security--meaning the litigant must “assure payment . . . of the party's reasonable expenses, including attorney's fees . . . incurred in or in connection with a litigation instituted . . . by a vexatious litigant.” Cal. Civ. Proc. Code § 391. If the plaintiff fails to furnish the security, the action will be dismissed. Id.

         Analysis

         As demonstrated below, Barroga's litigation history demonstrates a pattern of frivolous and harassing complaints and motions. These actions call for him to be deemed a vexatious litigant. De Long, 912 F.2d at 1146.

         A. Notice and Opportunity to Be Heard

         Procedural due process is satisfied in this instance where the court notifies the litigant it is considering a vexatious litigant order, provides details about the scope of the proceedings, and allows for the litigant to respond to the court's concerns. Ringgold-Lockhart, 761 F.3d at 1063.

         CalPERS filed its motion to declare Barroga a vexatious litigant on July 22, 2019, and set the matter for a hearing on August 29, 2019. Barroga did not respond to this motion, but did appear at the hearing. (See ECF No. 28.) There, the Court questioned Barroga about the current motion to dismiss, his litigiousness against CalPERS regarding his pension, and his continued disregard of prior judgments indicating his claims have no merit. Barroga responded that the current claim is different because he has “new evidence”--which he asserted was a new source of law (the California Constitution) that he has recently discovered and has not previously raised. The Court explained to Barroga that this constitutional provision, which was in existence during the pendency of his earlier claims, does not constitute “new evidence, ” but is merely a new legal theory that could have been raised at the earlier proceeding. Barroga contended that he should not be deemed a vexatious litigant because courts in the past have not answered “yes or no” as to whether his claim is viable. The Court informed Barroga the answer is “no, ” and reiterated that past courts have in fact said the same thing.

         Thus, because Barroga was on notice of the motion to deem him a vexatious litigant, and because he appeared at the hearing and responded to the motion, the Court has met its procedural duty on this first of the De Long factors, 912 F.2d at 1146. See also Ringgold-Lockhart, 761 F.3d at 1063 (finding due process satisfied where the litigant was notified of the vexatious-litigant motion and appeared at a hearing on the motion prior to the district court's issuance of the order).

         B. Adequate Record for Review

         “An adequate record for review should include a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed.” De Long, 912 F.2d at 1147. A district court compiles a proper record for review where a complete list of the cases filed by the litigant, alongside those complaints, accompanies the vexatious litigant order. Ringgold-Lockhart, 761 F.3d at 1063.

         Barroga has filed ten actions against CalPERS since his dispute began in the early 90s, as well as multiple appeals.[2] Within these actions, Barroga has a history of filing multiple motions, letters, and other miscellaneous correspondence, as shown by his conduct in the two actions filed in this district.[3] As a general outline, the undersigned notes that in many of Barroga's complaints, he argues that (a) his employer's contributions to his retirement account were “normal contributions, ” and thus he is still a member of CalPERS; (b) CalPERS violated the California Government Code by offering him the option of withdrawing his entire balance at once; and (c) he is ...


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