Friday, February 15, 2019
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Court of Appeal:
Pro Per With Seven Failed Actions Not Vexatious Litigant
Opinion Declares That Party Moving to Have Plaintiff So Branded Must Show That Lawsuits Which Were Unsuccessful at Trial Level Are Not on Appeal
By a MetNews Staff Writer
The Court of Appeal for this district yesterday ordered the designation of “vexatious litigant” lifted from a man who with frequency buys up real property involved in foreclosure procedures and then, acting in pro per, challenges alleged irregularities in the procedures.
Although Deutsche Bank National Trust Company, the defendant in an action brought by the pro per, Satish Shetty, pointed to seven similar actions he maintained which failed at the trial court level, it did not show that there are no appeals pending in any of the cases, Presiding Justice Dennis Perluss of Div. Seven noted, declaring that it had such a burden.
He pointed to Code of Civil Procedure §391(b)(1) which provides that a person is a vexatious litigant if he or she “[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…finally determined adversely to the person….”
Moving Party’s Burden
The jurist wrote:
“While section 391 does not define the phrase ‘finally determined,’ a judgment “is final for all purposes when all avenues for direct review have been exhausted.’…Accordingly, to support a vexatious litigant motion pursuant to section 391, subdivision (b)(1), the movant must submit evidence the prior litigations have been adjudicated on appeal or that the time to request appellate review has expired.”
Perluss went on to say, in yesterday’s unpublished opinion which reverses an order by Los Angeles Superior Court Judge Richard Rico:
“While Shetty did not submit evidence to the trial court demonstrating the cases were not finally determined, it was Deutsche Bank’s burden to establish this essential fact, not Shetty’s burden to refute it. Because Deutsche Bank failed to submit any evidence to support an essential element of its motion, the trial court erred in declaring Shetty a vexatious litigant.”
Federal Actions
In a footnote, Perluss said:
“During oral argument Deutsche Bank argued for the first time that the federal cases brought by Shetty were final even if pending on appeal because federal judgments and orders are deemed final unless and until they are reversed on appeal. We recognize that this is the case for purposes of claim and issue preclusion….However, Deutsche Bank has not cited any authority, and we are aware of none, that applies this definition of finality to the vexatious litigant statute. To the contrary, courts have held federal judgments and orders are not final for purposes of the vexatious litigant statute until the case has been adjudicated on appeal or the time to appeal has expired.”
He continued:
“The policies underlying a determination of finality for purposes of the vexatious litigant statute are best served by applying the same definition to both state and federal cases. Regardless, even if we were to determine the federal cases identified by Deutsche Bank were finally determined for purposes of the vexatious litigant statute, the evidence would still establish only four finally determined cases against Shetty, one short of the statutorily required five.”
Pursuant to a statutory provision, Rico had ordered Shetty to $9,000 in security to Deutsche Bank as a condition of continuing the litigation.
The case is Shetty v. Deutsche Bank National Trust Co., B277924.
Shetty was represented on appeal by Santa Monica attorney Paul M. Hittelman. Jonathan D. Fink of the Newport Beach firm of Wright Finlay & Zak LLP acted for Deutsche Bank.
Copyright 2019, Metropolitan News Company