Filed 3/ 3/14 In re Jones CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re Finding of

JASON EARL JONES as a Vexatious Litigant

. F068915 (Kern Super. Ct. No. CV

- 275994)


### OPINION AND ORDER DECLARING JASON EARL JONES A VEXATIOUS LITIGANT

ORIGINAL PROCEEDING to determine whether Jason Earl Jones is a vexatious j litigant. Jason Earl Jones, in pro. per., for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Jonathan L. Wolff , Assistant Attorney General, Misha D. Igra and Benjamin R. Dore, Deputy Attorneys General, for
Defendants and Respondent s

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Respondents State of California and several individuals have moved t he court for an order declaring appellant Jason Earl Jones to be a vexatious litigant, requiring him to post security before proceeding with his appeal, and requiring him to obtain leave of the presiding judge or justice before filing any new civil litigat ion. 1 They assert that, o ver the last seven years, appellant, in propria persona, has filed, prosecuted or maintained at
least five civil actions or appeals that have been finally determined against him. After considering the evidence and argument presen ted by the parties, we conclude respondents’ motion should be granted. Appellant is a vexatious litigant within the meaning of Code of Civil Procedure section 391, subdivision (b)(1) , 2 and should be required to post security in order to continue with his appeal. Further, he should be subject to a prefi ling order under section 391.7.
PROCEDURAL BACKGROUND On August 5, 2013, respondents moved this court to declare appellant a vexatious litigant under section 391, subdivision (b)(1). They requested that he be required to post security before proceeding with his appeal, and that a prefiling order be issued. Their moving papers listed 12 matters, in federal or state court, in the trial court or Court of Appeal, which they contend were determined adversely to appellant and qualify appellant as a vexatious litigant. They also asserted appellant’s current action lacks a reasonable probability of success on the merits, so security should be posted under sections 391.1 and 391.3, subdivision (a).

1 Respondents’ motion was filed in the appeal filed by appellant (case No. F066728). On its own motion, this court deemed the motion a separate proceeding from the appeal and assigned it a separate case number.
2 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.3

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On August 8, 20 13, we stayed the appeal pending resolution of the motion, notified the parties the matter would be set for hearing, and set deadlines for appellant to respond with evidence and argument and for respondents to reply. At appellant’s request, he was granted a 60

- day extension to file his response. Appellant filed responsive papers, respondents replied, and the matter was heard.
DISCUSSION Vexatious Litigant Law The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits or attempt to relitigate issues previously determined against them. (§§ 391

- 391.7; Shalant v. Girardi (2011 ) 51 Cal.4th 1164, 1169 ; Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 222

- 223 ( Bravo ).) The y “ were enacted to require a person found a vexatious litigant to put up security for the reasonable expenses of a defendant who becomes the target of one of these obsessive and persistent litigants whose conduct can cause serious financial results
to the unfortunate object of his attack. ” ( First Western Development Corp. v. Superior
Court (1989) 212 Cal.App.3d 860, 867 .) B efore a litigant may be declared vexatious, he or she is entitled to a noticed motion, and a hearing which includes the right to oral argument and the presentation of evidence . ( Bravo , supra , at pp. 224

- 225 .) If a court finds a person to be a vexatious litigant, it may “ enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this

sta te in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed. ” (§ 391.7, subd. (a).) Thereafter, “[t] he presiding justice or presiding judge shall permit the fil ing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding justice or presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3. ” (§ 391.7, subd. (b).) If the court determines a litigant is4

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vexatious and there is no reasonable probability he or she will prevail in the litigation before it, it may require the vexatious li tigant to furnish security for the ben efit of the opposing party. (§ 391.3, subd. (a).) The definition of “ ‘[ v ] exatious litigant ’ ” includes a person 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 ... finally determi ned adversely to the person” (§ 391, subd. (b)(1)) or who, “[a]fter a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either ... the validity of the determination ... or ... the cause of action ... concluded by the final determination” (§ 391, subd. (b)(2)). An appellate court can find a litigant to be vexatious based on proceedings f iled in the trial court or the appellate court, or both. ( In re R.H

. (2009) 170 Cal.App.4th 678, 691

- 692 ( In re R.H .).) “ ‘ Litigation, ’ ” in this context, is defined as “any civil action or proceeding, commenced, maintained or pending in any state or feder al court.” (§ 391, subd. (a).) Requests for Judicial Notice This court, like the trial court, may take judicial notice of records of any court of
this state or of the United States. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) The party seeking judi cial notice must give each adverse party sufficient notice of the request and furnish the court with sufficient information to enable it to take judicial notice of the matter. ( Id ., § 453.) Respondents’ motion to declare appellant a vexatious litigant inc luded a request that this court take judicial notice of certain documents they submitted, which are court records from other cases filed by appellant. Appellant contends we should not take judicial notice of these documents, because the request for judici al notice was not accompanied by a proposed order, as required by California Rules of Court, rule 8.252. Respondents remedied that shortcoming by submitting a proposed order with their reply
papers.5

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Appellant also contends the court should not take judici al notice of the exhibits proffered by respondents, apparently on the ground respondents should have requested judicial notice of more documents from each case file, or of all of the documents filed in
each case. The documents submitted, which contain the findings and judgments in each

case , appear to be sufficient to determine the nature of the case and the disposition. Consequently, appellant’s contention is without merit and we grant respondents’ request for judicial notice. Appellant has requested jud icial notice of documents from a case he filed in Los Angeles County Superior Court, and from the appeal of the judgment in that case

. ( Jones v. State of California (Su per. Ct. L.A. County, 2013, No. BC487259; California Court of Appeal, Second Appellate District, case No. B247752.) That case and the documents filed in it have no bearing on the existence or validity of the judgments against him in the
cases listed in respondents’ moving papers

. The demurrer in the Los Angeles County
case was sustained wi thout leave to amend, in part on the ground the claim was barred by res judicata. In its respondent’s brief, the state conceded res judicata did not apply because the earlier dismissal was not the result of litigation on the merits; rather, the

matter was dismissed when the federal district judge screened it out as frivolous . (See 28 U.S.C. § 1915 (e)(2)(B)(i) ; Denton v. Hernandez (1992) 504 U.S. 25, 34 .) Appellant points out the state’s concession and seems to conclude from it that the federal court judg ments based on findings of frivolousness cannot be used to declare him a vexatious litigant because they are not ju dgments on the merits. Section 391, subdivision (b)(1), however, requires only that the litigation be “finally determined adversely to the p erson”; it does not require that judgment be entered against the person on the merits. Accordingly, the documents submitted by appellant are irrelevant to the issue before the court and his request for judicial notice is denied. On December 6, 2013, appel lant filed a request for leave to file a late declaration in opposition to respondents’ motion. Appellant was given ample time, including a6

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60

- day extension of time, within which to file any evidence he wished to file in opposition to the motion. His req uest to file a late declaration does not explain why the declaration was not timely filed. Accordingly, we deny that request. We note that, even if we were to consider the declaration, it would not change our decision. The declaration asserts appellant’ s criminal conviction was the result of fraud and, because the state knew of that fraud and did not disclose it in his federal civil actions collaterally attacking his criminal conviction, the dismissals of those civil actions were obtained by fraud. As t he federal court noted in at least one of those civil actions, “ any claim by a prisoner attacking the validity or duration of his confinement must be brought und er the habeas
sections of Title 28 of the United States Code. ” ( Calderon v. Ashmus (1998) 523 U.S. 740, 747.) Thus, regardless of appellant’s allegations of fraud, his federal civil actions were not the appropriate vehicle by which to challenge his conviction and they were subject to dismissal for that reason. Application to Appellant Respondents ’ motion is based on section 391, subdivision (b)(1). Under that subdivision, in order to establish appellant is a vexatious litigant, respondents must show appellant filed or maintained at least five litigations in the previous seven years that were
fina lly determined against him. To obtain an order requiring appellant to post security, respondents must also demonstrate there is no reasonable probability he will prevail in the action being appealed . (§§ 391. 1 , 391.3, subd. (a).) At least five litigatio ns Respondents cited the following 12 litigations in support of their motion (listed by exhibit number used in respondents’ motion):
Exhibit No. 1: Jones et al. v. State of California et al ., Kern County Superior Court

case No. S

- 1500

- cv

- 275994; judgment entered February 20, 2013 , in
favor of defendants after a demurrer was sustained without leave to
amend.7

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Exhibit No. 2: Jones v. Karpinski et al

. , United States District Court, District of

Columbia case No. 10

- 560; final order of dis missal entered May 19, 2010, on ground complaint was frivolous.
Exhibit No. 3: In re Jones , United States District Court, Northern District of

California case No. C 08

- 4321; judgment of dismissal entered
November 13, 2008; petition for removal dismissed for lack of subject matte r jurisdiction.
Exhibit No. 4: Jones v. Harrington/Cate , United States District Court, Eastern

District of California case No. 1:10

- CV

- 00212; judgment entered July 12, 2011; petition for writ of habeas corpus dismissed for violating statute of limitations and for failure to state a cognizable
claim

. Exhibit No. 5: Jones v. Cal ifornia Dep artment of Corrections and Rehabilitation et

al ., United States District Court, Eastern District of California case
No. 1:07

- CV

- 0185 2; civil judgment entered March 28, 2008; dismissed for failure to pay filing fee or apply to proceed in forma pauperis.
Exhibit No. 6: Jones v. State of California et al ., Kern County Superior Court case

No. S

- 1500

- cv

- 275419; order sustaining demur rer without leave to amend July 19, 2013.
Exhibi t No. 7: Jones v. Karpinski et al ., United States District Court, Central

D istrict of California case No. CV 08

- 8495; order denying request to proceed without prepayment of full filing fee in part on ground complaint wa s frivolous, entered on January 15, 2 009; complaint returned to plaintiff.
Exhibit No. 8: U

nited S tates v. Jones et al ., United States Court of Appeals, Ninth
Circuit case No. 09

- 56665; order dismissing appeal for failure to8

. respond to court order, which denied motion to proceed in forma
paup eris because appeal was frivolous and required Jones to pay filing fee; en tered on March 15, 2010.
Exhibit No. 9: Jones v. United States et al. , United States District Court , District of

Columbia case No. 09

- 849; fin al dismissal order entered June 26,
2009 , on ground complaint was frivolous.
Exhibit No. 10: Jones v. Karpinski et al ., United States Court of Appeals, Distri ct of

Columbia Circuit case No. 10

- 5208; order summarily affirming dismissal of complaint as frivolous, entered November 19, 2010 (re view of decision in exhibit No. 2 above).
Exhibit No. 11: Jones v. United States et al ., United States Court of Appeals, Distri ct

of Columbia Circuit case No. 09

- 5245; order affirming dismissal of complaint as frivolous, entered September 3, 2010 (re view of
de cision in exhibit No. 9 above).
Exhibit No. 12: Jones et al. v. State of California et al ., United States District Court,

Eastern District of California case No. 1:11

- CV

- 02104; judgmen t of
dismissal entered November 21, 2012, based on three prior
dismissal s for frivolousness or failure to state a claim.
Exhibit No. 4 reflects a proceeding for a writ of habeas corpus; it is not a civil action, and does not qualify as a prior litigation for purposes of the vexatious litigant
statutes. Exhibit No. 6 is not a final judgment, although it does reflect a determination that would entitle the defendants to a judgment of dismissal. Appellant contends exhibit
No. 8 is an appeal of a criminal matter, which also would not qualify as a prior litigation
under the vexatio us litigant statutes. The docket presented, however, indicates the case type is civil. Nonetheless, even if we disregard these three cases, there are still nine litigations determined adversely to appellant, which qualify him as a vexatious litigant.9

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App ellant argues that some of the remaining nine items do not qualify as adversely determined litigations because the adverse judgments were obtained by extrinsic fraud. He presents no evidence, however, that any of those judgments have been vacated on a
fin ding of extrinsic fraud. Appellant argues the action s cited by respondents are not litigations within the vexatious litigant statutes because they were collateral attacks on his criminal conviction, rather than civil actions. The matters were filed by him as civil actions, however, and they fit the statutory definition of litigatio ns in section 391, subdivision (a).
A ppellant asserts respondents brought their motion under t he wrong subdivision of
section 391. He asserts they shou ld have proceeded under se ction 391, subdivision (b)(2)
rather than subdivision (b)(1), because his prior court actions attempted to repeatedly challenge the validity of his criminal conviction. The fact that he may also qualify as a vexatious litigant under sub division (b)(2) doe s not negate the showing that qualifies him as a vexatious litigant under subd ivision (b)(1). Appellant contends he does not fall within the spirit or intent of the vexatious litigant statutes; he argues he should not be declared vexatious because most of the litigations were dismissed prior to service on the defendants, so they did not unduly burden the defendants. “ The purpose of the vexatious litigant statutes ‘ 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 financial results to the unfortunate objects of his or her attacks and places an unreasonable burden on the

courts .’ [Citations.] ‘ The constant suer ... becomes a serious problem to o thers than the defendant he dogs. By clogging court calendars, he causes real detriment to those who have legitimate controversies to be determined and to the taxpayers who must provide the

courts. ’” ( In re Kinney (2011) 201 Cal.App.4th 951, 957

- 958 .) E ven cases that have not yet been served on the defendants can clog court calendars, cost taxpayers money, and delay or interfere with other litigants’ cases. Further, excessive filing of frivolous matters10

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in appellate courts “results in a useless diversio n of the appellate court’s attention and prejudices other appellate parties, many of whom wait years for resolution of bona fide disputes. Similarly, our appellate system and our state’s taxpayers are damaged by what amounts to a waste of the appellate co urt’s time and resources.” ( In re R.H

. , supra, 170 Cal.App.4th at p. 692.) The litigations finally determined adversely to appellant include five matters that were dismissed by the trial court as frivolous and two appeals that affirmed dismissals on the g round of frivolousness. We conclude appellant and the litigations he has pursued fall well within the spirit and intent of the vexatious litigant statutes. No reasonable probability appellant will prevail “[I] f, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and
within such time as the court shall fix. ” (§ 391.3, subd. (a).) Respondents contend there is no reasonable probability appellant will prevail in his appeal, because appellant was required to present a gov ernment claim prior to initiating his action, and he admitted in his amended complaint that he did not do so. Additionally, respondents contend appellant’s action for injunctive relief is moot. Appellant’s first amended complaint alleges he is an inmate, formerly incarcerated at Kern Valley State Prison. He alleges respondents, the state and various prison personnel, confiscated his compact disc player during a mass cell inspection, made appeal of that action difficult, and rejected his appeal, all in vio lation of his rights. His second cause of action alleges respondents violated his rights by double celling inmates based on bed space, without regard to safety or compatibility of cellmates. The first amended complaint prays for unspecified declaratory r elief, injunctive relief against the policy of double celling inmates when it is unsafe to do so, injunctive relief against the denial of11

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access to the courts by making administrative remedies una vailable, and punitive damages.
A claim under the Government Claims Act (Gov. Code, § 900 et seq.) must be presented to the California Victim Compensation and Government Claims Board for all claims for money or damages made ag ainst the state. (Gov. Code, § 905.2, subd s. (a), (b).) Generally, presentation and rej ection of such a claim is a prerequisite to filing a court action for money o r damages ag ainst the state. (Gov. Code, § 945.4.) “ Timely claim presentation is not merely a procedural requirement, but is, as thi s court long ago concluded, ‘“‘ a condition pr ecedent to plaintiff’s maintain ing an action against
defendant ’”’ [citations], and thus an element of the plaintiff’s cause of action. [Citation.] Complaints that do not allege facts demonstrating either that a claim was timely presented or that complian ce with the claims statute is excused are subject to a general demurrer for not stating facts sufficient to constitute a cause of action. [Citation.] ” ( Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209.) We note that the claim presentation r equirement does not apply to a civil rights
cause of action brought pursuant t o 42 United States Code section 1983. ( Williams v.
Horvath (1976) 16 Cal.3d 834, 838

- 841.) In his opening brief, however, appellant expressly denies that his action presents a civil rights claim und er that statute. Appellant’s first amended complaint seeks $50 million in punitive damages; it alleges he has not complied with the Government Claims Act, but he is not required to do so because he seeks only injunctive and declarator y relief, and his request for punitive damages is merely incidental to his claims for that relief. Punitive damages are generally not recoverable in the absence of a showing of actual damages, however. ( Sterling Drug,
Inc. v. Benatar (1950) 99 Cal.App.2d 393, 400.) Appellant cannot avoid the claim presentation requirement by simply omitting a prayer for actual damages and seeking only punitive damages, along with nonmonetary relief. Further, the size of the requested award of punitive damages, which wou ld be payable to appellant, suggests it is not12

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merely incidental to appellant’s request for injunctive and declaratory relief. To the extent appellant primarily alleges a claim for money or damages against the state or its employees, he was required to co mply with the government claim statutes; it appears there is no reasonable probability he will prevail on the merits of such a claim , because he concedes he has not complied with the government claim presentation requirement. 3 To the extent appellant seeks injunctive or declaratory relief, his claims appear to be moot. “ In general a case becomes moot ‘“ when the issues presented are no longer

‘ live ’ or the parties lack a legally cognizable interest in the outcome. ”’ [Citations.]” ( Murphy v. Hunt (1982) 45 5 U.S. 478, 481 .) “ An issue becomes moot when some event has occurred which ‘ deprive[s] the controversy of its life .’ [Citation.] The policy behind
a mootness dismissal is that ‘ courts decide justiciable controversies and will normally not
render adviso ry opinions. ’ [Citation.]” ( Giraldo v. Department of Corrections &
Rehabilitation (2008) 168 Cal.App.4th 231, 257 .) Where an inmate seeks injunctive and declaratory relief from conditions of confinement at the prison where he is being held,
and he is su bsequently paroled or transferred to another prison, these claims become moot, at least in the absence of evidence there is a reasonable expectation or demonstrated probability the inmate will be returned to that prison; this is because the relief sought w ill not affect him. ( Id . at pp. 257

- 258; Kensu v. Haigh ( 6th Cir. 1996 ) 87

3 We reject appellant’s suggestion he can simply amend his pleading to allege compliance with the claim presentation requirement. He cannot simply contradict a previous allegation that is fatal to his claim, especially one made in a verified pleading. ( Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044.) To overcome the previous allegation, appellant would have to include allegations e xplaining why the erroneous admission was made in his first amended complaint and what the true facts are. He has not suggested what allegations he could include in a second amended complaint that would explain the error and overcome the existing admissio n.13

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F.3d 172 , 175; Darring v. Kincheloe (9th Cir. 1986) 783 F.2d 874, 876 ; Johnson v.
Moore (9th Cir. 1991) 948 F.2d 517, 519.) Appellant’s first amended complaint seeks declaratory an d injunctive relief based on occurrences at Kern Valley State Prison, but it alleges he was formerly incarcerated there. Appellant notified the trial court of his change of address to another facility in April 2012, prior to filing his first amended compl aint. Appellant has not addressed respondents’ argument that his claims for injunctive and declaratory relief are moot; he has not presented any evidence there is a reasonable expectation or demonstrated probability he will be returned to Kern Valley Stat e Prison. Consequently, it appears his claims for injunctive and declaratory relief are moot. Respondents have demonstrated there is no reasonable probability appellant will prevail on the merits. They have satisfied the requirements for issuance of an o rder requiring appellant to post security in order to proceed with his appeal. (§§ 391.1, 391.3,
subd. (a).) They have requested security in the sum of $2,380. We find that amount to be reasonable and supported by the evidence presented in the declarati on of Deputy Attorney General Benjamin R. Dore.
DISPOSITION
This court finds that appellant Jason Earl Jones is a vexatious litigant within the meaning of section 391. Additionally, there is no reasonable probability he will prevail
in th is appeal. All f

urther litigation in this matter is stayed pending appellant’s posting of security for the benefit of respondents

. Appellant shall have 3 0 days from the filing date of this opinion to post security in the amount of $2,380 with this court. (§§ 391,
subd. (c), 391.1, 391.3.) In the event security is not timely posted, the appeal will be
dismissed. Henceforth, pursuant to section 391.7, Jason Earl Jones may not file “any new litigation in the courts of this state in propria persona without first obtaining l eave of the presiding justice or presiding judge of the court where the litigation is proposed to be14

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filed.” (§ 391.7, subd. (a).) Disobedience of this order may be punished as a contempt of court. ( Ibid .) “The presiding justice or presiding judge shal l permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding justice or presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3.” (§ 391.7, subd. (b).) The clerk of this court is directed to provide a copy of this opinion and order to the
Judicial C ounci l. (§ 391.7, subd. (f ).)

_____________________ Kane, J. WE CONCUR:

_____________________ Levy, Acting P.J.

_____________________ Poochigian, J.