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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 

jlitigant.

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 Respondents.

-ooOoo-
2.

Respondents State of California and several individuals have moved the 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 litigation.1 They assert that, over 

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 presented 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 prefiling 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.

On August 8, 2013, 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).) They “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.) Before 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 

state 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 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).) If the court determines a litigant is 
4.

vexatious and there is no reasonable probability he or she will prevail in the litigation 

before it, it may require the vexatious litigant to furnish security for the benefit 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 determined 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 filed 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 federal 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 judicial 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 included 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 judicial 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.

Appellant also contends the court should not take judicial 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 judicial 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 (Super. 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 without 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 

judgments based on findings of frivolousness cannot be used to declare him a vexatious 

litigant because they are not judgments on the merits. Section 391, subdivision (b)(1), 

however, requires only that the litigation be “finally determined adversely to the person”; 

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, appellant filed a request for leave to file a late declaration 

in opposition to respondents’ motion. Appellant was given ample time, including a 
6.

60-day extension of time, within which to file any evidence he wished to file in 

opposition to the motion. His request 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 the 

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 under 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 

finally 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 litigations

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.

Exhibit No. 2: Jones v. Karpinski et al., United States District Court, District of 

Columbia case No. 10-560; final order of dismissal 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 matter 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. California Department of Corrections and Rehabilitation et 

al., United States District Court, Eastern District of California case 

No. 1:07-CV-01852; 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 demurrer without leave to 

amend July 19, 2013.

Exhibit No. 7: Jones v. Karpinski et al., United States District Court, Central 

District of California case No. CV 08-8495; order denying request to 

proceed without prepayment of full filing fee in part on ground 

complaint was frivolous, entered on January 15, 2009; complaint 

returned to plaintiff.

Exhibit No. 8: United States v. Jones et al., United States Court of Appeals, Ninth 

Circuit case No. 09-56665; order dismissing appeal for failure to 
8.

respond to court order, which denied motion to proceed in forma 

pauperis because appeal was frivolous and required Jones to pay 

filing fee; entered on March 15, 2010.

Exhibit No. 9: Jones v. United States et al., United States District Court, District of 

Columbia case No. 09-849; final dismissal order entered June 26, 

2009, on ground complaint was frivolous.

Exhibit No. 10: Jones v. Karpinski et al., United States Court of Appeals, District of 

Columbia Circuit case No. 10-5208; order summarily affirming 

dismissal of complaint as frivolous, entered November 19, 2010 

(review of decision in exhibit No. 2 above).

Exhibit No. 11: Jones v. United States et al., United States Court of Appeals, District 

of Columbia Circuit case No. 09-5245; order affirming dismissal of 

complaint as frivolous, entered September 3, 2010 (review of 

decision 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; judgment of 

dismissal entered November 21, 2012, based on three prior 

dismissals 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 vexatious 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.

Appellant 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 

finding of extrinsic fraud.

Appellant argues the actions 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 litigations in section 391, subdivision (a).

Appellant asserts respondents brought their motion under the wrong subdivision of 

section 391. He asserts they should have proceeded under section 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 subdivision (b)(2) does not negate the showing that qualifies him 

as a vexatious litigant under subdivision (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 others 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.) Even 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 matters 
10.

in appellate courts “results in a useless diversion 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 court’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 ground 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 government 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 violation 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 relief, injunctive relief against the policy of 

double celling inmates when it is unsafe to do so, injunctive relief against the denial of 
11.

access to the courts by making administrative remedies unavailable, 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 against the state. (Gov. Code, § 905.2, subds. (a), 

(b).) Generally, presentation and rejection of such a claim is a prerequisite to filing a 

court action for money or damages against the state. (Gov. Code, § 945.4.) “Timely 

claim presentation is not merely a procedural requirement, but is, as this court long ago 

concluded, ‘“‘a condition precedent to plaintiff’s maintaining 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 compliance 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 requirement does not apply to a civil rights 

cause of action brought pursuant to 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 under 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 declaratory 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 would be payable to appellant, suggests it is not 
12.

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 comply 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) 455 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 advisory 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 subsequently 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 will 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 explaining 

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 admission.
13.

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 and 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 complaint. 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 State 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 order 

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 declaration 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 this appeal. All further litigation in this matter is stayed pending appellant’s posting of 

security for the benefit of respondents. Appellant shall have 30 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 leave of the 

presiding justice or presiding judge of the court where the litigation is proposed to be 
14.

filed.” (§ 391.7, subd. (a).) Disobedience of this order may be punished as a contempt of 

court. (Ibid.) “The presiding justice or presiding judge shall 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 Council. (§ 391.7, subd. (f).)

_____________________

Kane, J.

WE CONCUR:

_____________________

Levy, Acting P.J.

_____________________

Poochigian, J.