R Scott Turicchi et al vs Randall Quaid et al

R. Scott Turicchi, et al. v. Randall Quaid, et al.

Case No. 19CV06268

Hearing date: 9/11/2023

Attorneys:

Grant Puleo / Karen L. Alexander of Duane Morris LLP for defendants and cross-complainants Randy Quaid and Evgenia Quaid

Susan J. Williams of Hennelly & Grosfeld LLP for cross-defendants Bruce Berman and Nancy Goliger Berman

TENTATIVE RULING: For the reasons more fully articulated below, the Court will grant the motion. The Court finds that Randy Quaid and Evgenia Quaid are, in fact, vexatious litigants, pursuant to the terms of Code of Civil Procedure section 391(b)(1) and (b)(2).

The Court will issue a prefiling order prohibiting either Randy Quaid or Evgenia Quaid 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.

BACKGROUND: Case No. 19CV06268 This action was commenced on November 25, 2019, by the filing of the original complaint by plaintiffs R. Scott Turicchi and Lannette C. Turicchi. At that time, the complaint alleged a cause of action to quiet title in plaintiffs in property located at 1355 East Mountain Drive in Santa Barbara, and for declaratory relief that defendants Randall Quaid and Evgenia Quaid have no interest in that property. It alleged that the Turicchis obtained title to the property pursuant to a Grant Deed recorded on August 21, 2007, and that the Quaids claimed an interest in the property.

The Quaids answered and filed a cross-complaint, in pro per, on October 7, 2020. The cross-complaint alleged causes of action for forgery, cancellation of instruments, conspiracy to commit fraud, and bank/mortgage fraud, against the Turicchis, Bruce Berman, Nancy Goliger Berman Baltcor Corporation, Aleksandr Volynskiy, Robert Lamborn, and James Krautmann. The cross-complaint alleged that the 1992 Grant Deed which transferred title to the property at issue in the complaint from the Quaids to the Bermans (from whom the Turicchis obtained their title) was forged, and that the cross-defendants were engaged in an elaborate scheme to wrongfully obtain title to the property from the Quaids. Multiple demurrers and motions to strike were filed to the cross-complaint. While the demurrers and motions to strike were pending, the Quaids (still in pro per) filed a First Amended Cross-Complaint (FACC) on December 28 or 30, 2020 [it reflects a December 30 filing date, but the Quaids later contended they actually submitted it for filing on December 28].

The FACC named as cross-defendants all parties who had been cross-defendants to the original cross-complaint, and also added Bruce Giffin as a cross-defendant. It alleged causes of action for forgery, cancellation of instruments, conspiracy to commit fraud/RICO, bank/mortgage fraud, abuse of process, falsifying evidence and concealment, making false statement for police report, and conversion and trespass of chattels, all arising from the same events involving the alleged forgery of a Grant Deed which transferred title to the East Mountain Drive property from the Quaids to the Bermans.

Multiple demurrers and motions to strike were filed with respect to the FACC. While the Quaids did not file formal opposition to any of the demurrers and motions to strike, they filed a document on March 24, 2021, entitled “Request for Judicial Notice of Susan Williams Esq. Bruce and Nancy Berman Oppression, Fraud, Malice Forgery.” [Bold in original.] Attorney Williams was at that time, and is now, counsel of record for the Bermans. While the full import of the document is difficult to discern from the manner in which it is drafted, it appears to accuse attorney Williams of misconduct in failing to include, in emails attached to her meet-and-confer declaration, the full emails from the Quaids in which they claimed to have provided her with evidence of the forgery committed by Bruce Berman.

The Quaids, still in pro per, filed a request for dismissal of their original cross-complaint on May 17, 2021. On May 28, 2021, while multiple demurrers and motions to strike were again pending with respect to the FACC, the Quaids dismissed the FACC.

An additional cross-complaint was filed by the Quaids on December 27, 2021 (December 2021 CC), without leave of court, while they were in pro per. and February 22 2022, both without leave of court, and both while they were in pro per. It was simply entitled “Cross-Complaint to Quiet Title and for Declaratory Relief and Monetary Damages,” and named as defendants only R. Scott Turicchi, Fidelity National Title Insurance Company, and all persons claiming any right or title in the property. The December 2021 CC was also based upon the contention that Bruce Berman had forged the Grant Deed and Berman Deed of Trust, through which the Bermans had obtained title to the Mountain Drive property.

The Turicchis filed their operative First Amended Complaint (FAC) on February 14, 2022. The FAC continued to allege causes of action to quiet title and for declaratory relief, and added a cause of action for slander of title.

The Quaids filed yet another cross-complaint, without leave of court and while in pro per, on February 22, 2022 (February 2022 CC), which was improperly entitled “First Amended Cross Complaint,” and alleged causes of action for identification theft under Civil Code section 1798.93 and declaratory relief, against defendants Fidelity National Financial Inc., Lawyers Title, LandAmerica Lawyers Title, Scott Turicchi, Lannette Turicchi, and all persons claiming right or title in the Mountain Drive property. The February 2022 CC was also based upon the contention that the Bermans had forged the Grant Deed through which they had obtained title to the Mountain Drive property from the Quaids, that their 2007 sale of the property to the Turicchis did not transfer valid title, and the Turicchis were not bona fide purchasers of the property and were instead squatters on the property, from which the Quaids contended they were victims of identity theft.

The Quaids filed their answer to the Turicchis’ FAC on July 18, 2022. An amended answer was filed on March 8, 2023, which purported to include a cross-complaint.

Demurrers to the Quaids February 2022 CC were sustained on November 28, 2022, without leave to amend as to the identity theft claim, but with leave to amend to permit the Quaids an opportunity to allege any other valid claim they might have related to their contention that the Grant Deed transferring the Mountain Drive property from them to the Bermans was forged and therefore void. They were permitted an extended period of time to file any further cross-complaint (which the Court noted must be denominated as a Fourth Amended Cross-Complaint), in order to permit them an opportunity to retain counsel.

At the same November 28 hearing, this Court denied a motion by cross-defendants Lawyers Title Company and Fidelity National Financial, Inc. to have the Quaids declared to be vexatious litigants, to impose a pre-filing order, and to require them to provide security. In denying the motion, the Court noted that a number of the final adverse determinations relied upon by the moving cross-defendants were voluntary dismissals entered before there had been any appearance in the case. It noted further that while voluntary dismissal qualified as final adverse determinations within the meaning of Code of Civil Procedure section 391(b)(1)(i), when such dismissal occurred prior to the appearance of any defendant, and/or prior to any involvement or significant involvement by the trial court, reliance upon them to establish that there were at least five litigations finally determined adverse to the person within the last seven years did not fulfill the purpose of the vexatious litigant statutory scheme, i.e. to address the problem created by the persistent and obsessive litigant who constantly had pending a number of groundless actions, and whose conduct caused serious financial results to the objects of his or her attacks, and placed unreasonable burdens on the courts. If those dismissals were not considered, there did not exist the requisite five litigations finally determined adverse to the Quaids within the last seven years. The Court therefore exercised its discretion to deny the vexatious litigant motion.

The Quaids filed their Fourth Amended Cross-Complaint (4ACC) on February 14, 2023, again while in pro per. The 4ACC named as defendants Tabitha Campbell, Fidelity National Title Group, Lawyers Title Insurance Corporation, Lawyers Title Company, Ticor Title Company of California, Chicago Title Company, R. Scott Turicchi, Lannette C. Turicchi, J2Cloud Services, LLC, JFAX.COM, Inc., IGN Entertainment Inc., Andrew Zepeda, and all persons claiming right or title in the Mountain Drive property. It alleged causes of action for financial elder abuse, intentional infliction of emotional distress, negligent infliction of emotional distress, fraud, aiding and abetting, identity theft, unfair business practices, quiet title, declaratory relief, cancellation of instruments, and slander.

On March 20, 2023, cross-defendants Lawyers Title Company, Chicago Title Company, and Ticor Title Company of California moved, ex parte, for an order striking the 4ACC because it exceeded the scope of leave to amend granted by the court, adding nine new cross-defendants, who would be required to incur substantial expense in responding to the 4ACC if it were not stricken. The Court granted the ex parte application, and ordered the 4ACC stricken, with further leave to amend granted.

The Turicchis’ first and second causes of action to quiet title and for declaratory relief, as alleged in their FAC, were summarily adjudicated in their favor after hearing on March 27, 2023.

On April 4, 2023, the Quaids’ current counsel substituted into the action on their behalf as defendants, and sought and obtained an order continuing all pending dates. On April 10, 2023, current counsel substituted into the action on the Quaids’ behalf as cross-complainants.

The formal order granting the Turicchis’ motion for summary adjudication was entered on April 19, 2023. The Quaids petition for writ of mandate and request for temporary stay based upon the grant of the motion for summary adjudication, filed May 2, 2023, was denied by the Second District Court of Appeal, Division Six, on May 16, 2023.

The Quaids’ Fifth Amended Cross-Complaint (5ACC) was filed through counsel on May 3, 2023. The twenty-two (22) cause of action 5ACC named as cross-defendants the Turicchis, Lawyers Title Company, Fidelity National Title Insurance Company, and Bruce and Nancy Berman. Specifically, the 5ACC alleged against all defendants causes of action to quiet title, for declaratory relief, and cancellation of instruments. Against the Turicchis, it alleged causes of action for ejectment, conversion, receipt of stolen property, defamation and defamation per se, intentional infliction of emotional distress, negligent infliction of emotional distress, false arrest/imprisonment, and abuse of process. Against the Lawyers Title cross-defendants, it alleged causes of action for tortious interference with prospective economic advantage, negligence, and negligent interference with prospective economic advantage. Against the Bermans, it alleged causes of action for fraud/deceit/intentional misrepresentation, negligent misrepresentation, receipt of stolen property, common count: money had and received, unjust enrichment, breach of fiduciary duty, and conversion. Once again, the genesis of the claims alleged in the 5ACC was the alleged forgery of the Grant Deed through which the Bermans obtained title to the Mountain Drive property from the Quaids in 1992, and the Turicchis alleged knowledge that they did not obtain good and marketable title to the property from the Bermans in 2007.

The Turicchis and cross-defendants Lawyers Title Company and Fidelity National Title Insurance Company all filed both a demurrer and motion to strike with respect to the Quaids’ 5ACC. The Berman cross-defendants filed a demurrer to the cross-complaint, and also filed the current motion for order deeming the Quaids to be vexatious litigants and for prefiling order. All demurrers, motions to strike, and the vexatious litigant motion were set for hearing on August 7, 2023.

On July 19, 2023, the Quaids dismissed their 5ACC, without prejudice. Because the pending demurrers and motions to strike were mooted by the dismissal, each of the filing parties filed a formal notice that they were being taken off calendar. Currently, only the vexatious litigant motion remained on calendar for hearing on August 7. That hearing was continued by the Court, on its own motion, to August 21, 2023.

In addition to Case No. 19CV06268, there exist a series of state and federal cases which were commenced by the Quaids while in pro per. Listed chronologically, they include:

Case No. 2:20CV010761-FMO-MAAx On November 23, 2020, the Quaids, in pro per, filed an action in the United States District Court for the Central District of California, naming as defendants Robert Boyett, the Bermans, and Martin Meeks. The complaint related to claims of interference with Randy Quaid’s relationship with Warner Brothers and Paramount, and specifically involved the Bermans’ fraudulent acquisition of the Quaids’ real and personal property. A First Amended Complaint was filed on January 15, 2021. On March 30, 2021, the Quaids filed a Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c), as to the Berman and Meeks defendants. On October 5, 2021, the Quaids filed a similar Notice of Dismissal as to the entire action.

Case No. 21CV01409 During the pendency of Case No. 19CV06268, the Quaids on April 7, 2021 filed a verified complaint (Case No. 21CV01409), in pro per, alleging causes of action to quiet title to the identical property as is at issue in the current action, for declaratory relief, and for cancellation of instruments. The complaint named as defendants the Bermans, the Turicchis, and all persons claiming any right or title in the property, and was based upon allegations that the 1992 Grant Deed through which the Bermans obtained title to the property from the Quaids was forged and void, and that no title passed from the Bermans to the Turicchis through the 2007 Grant Deed. On June 14, 2021, the Quaids dismissed Case No. 21CV01409, without prejudice, as to all parties and all causes of action.

Case No. 2:21-CV-04793-CBM-JPRx On June 11, 2021, the Quaids, in pro per, filed a verified complaint for quiet title, declaratory relief, and cancellation of instruments in the United States District Court for the Central District of California, naming as defendants the Bermans, the Turicchis, and all persons claiming any right or title in the Mountain Drive property. The allegations arise from the allegedly forged Grant Deed through which the Bermans obtained title of the property from the Quaids, and assert that the Turicchis therefore did not obtain valid title from the Bermans in 2007. On September 8, 2021, the Bermans filed a motion to dismiss the action, and to declare plaintiffs vexatious litigants and impose a pre-filing order or, alternatively to declare them vexatious litigants and require them to furnish security, supported by the declaration of their counsel, Susan Williams. On October 8, 2021, the Quaids filed a Notice of Dismissal Pursuant to Federal Rules of Civil Procedures 41(a) or (c), dismissing the federal action in its entirety. On October 13, 2021, the federal district court acknowledged its receipt of the notice of voluntary dismissal, and ordered that the action be dismissed, and the pending motion to dismiss denied as moot. The minute order noted that if plaintiffs have previously dismissed any federal- or state-court action based on or including the same claim, their notice of dismissal operates as an adjudication on the merits pursuant to Federal Rule of Civil Procedure 41(a)(1)(B). [Note: This Court notes that plaintiffs had, in fact, previously dismissed a state court action based on or including the same claims, in their June 14, 2021 dismissal of Case No. 21CV01409.]

Case No. CV21-80990-FMO(MRWx) On October 10, 2021, Evi Quaid (only), in pro per, filed a complaint in United States District Court for the Central District of California, naming as defendants Susan Williams and Michael King, who are or had been attorneys for the Bermans. The complaint purported to allege claims for malpractice, negligent supervision, and conflict of interest, seeking replacement of the value of her home, private security to protect her from the forger, and to correct the inaccurate legal advice, along with punitive damages. It alleged that she was the victim of forgery, in that her home was stolen by a forger who also caused her to be physically attacked. It further alleges that defendant Williams provided her with negligent legal advice. Plaintiff was ordered to show cause why the action should not be dismissed for her failure to complete service as required by Rule 4(m) of the Federal Rules of Civil Procedure. When she failed to do so, the district court dismissed the action without prejudice. A Judgment dismissing the action without prejudice was filed by the court on January 14, 2022.

Case No. CV21-8127-CBM(Ex) On October 11, 2021, the Quaids, in pro per, filed a complaint in the United States District Court for the Central District of California, naming as defendants R. Scott Turicchi and all persons claiming any right or title in the Mountain Drive property. The complaint is based upon allegations that Bruce Berman forged the 1992 Grant Deed through which he obtained title to the property from the Quaids, and that the 2007 Grant Deed from Berman to the Turicchis was therefore void and did not convey to the Turicchis valid title to the property. On November 2, 2021, the court dismissed the complaint for lack of subject matter jurisdiction, with leave to amend no later than November 22, 2021. On December 14, 2021, with no such amended complaint having been filed, the federal court found that plaintiffs had abandoned their claim, and dismissed the action without prejudice for lack of subject matter jurisdiction, lack of prosecution, and failure to comply with a court order. On that same date, a judgment was entered dismissing the action without prejudice

Case No. CV21-8116-PA(ASx) On October 12, 2021, Evi Quaid (only), in pro per, filed a complaint in the United States District Court for the Central District of California, naming as defendants Gerard Fox and Lauren Green. This complaint also purported to allege causes of action for malpractice, negligent supervision, and conflict of interest. The complaint made similar allegations to those that were alleged in No. CV21-80990-FMO(MRWx), above, that she was a victim of forgery, the forger had physically attacked her, and that defendants provided her with negligent legal advice on how to correct the forged deed, through which contended she could end up vulnerable to further physical attacks by the forger. On October 15, 2021, the court dismissed the complaint, with leave to amend, for lack of subject matter jurisdiction, and allowed a first amended complaint no later than November 8. On December 14, 2021, no amended complaint having been filed, the federal court found that plaintiff had abandoned her claim, and dismissed the action without prejudice for lack of subject matter jurisdiction. On that same date, a Judgment was entered dismissing the action without prejudice.

Case No. 21CV04053 On October 21, 2021, the Quaids, while in pro per, filed a complaint seeking to quiet title and for declaratory relief, naming as defendants R. Scott Turicchi and all persons claiming any right or title in the property, based upon allegations that the Quaids own the Mountain Drive property, that the Grant Deed through which it was transferred to Bruce Berman was forged and void, and that the Grant Deed through which Berman transferred the property to Turicchi was void and did not transfer valid title, among other allegations. After a motion to strike filed by defendant Turicchi was granted, with leave to amend, the Quaids on February 14, 2022, filed a First Amended Complaint. They then filed a Request for Full Dismissal Without Prejudice on February 23, 2022.

VEXATIOUS LITIGANT MOTION: The Bermans have moved for an order declaring the Quaids to be vexatious litigants, within the meaning of not just Code of Civil Procedure section 391(b)(1) (which was the sole subject of the previous vexatious litigant motion heard by the court), but also as defined by Section 391(b)(2) and 391(b)(3), and for a prefiling order to be imposed against them. The Bermans assert that the Quaids have engaged in “an abusive cycle” of filing meritless actions, requiring the Bermans to file demurrers and motions to dismiss, and then dismissing those actions before the matters can be heard, while simultaneously or subsequently filing the same actions in other courts. They note that, pursuant to Camerado Ins. Agency, Inc. v. Superior Court (1993) 12 Cal.App.4th 838, 842, the fact that the Quaids are currently represented by counsel does not shield them from being declared vexatious litigants.

With respect to vexatious litigant status pursuant to Section 391(b)(1), the Bermans contend that the Quaids have filed and voluntarily dismissed, in propria persona, the following actions within the last seven years:

(1) verified cross-complaint and verified first amended cross-complaint in Turicchi v. Quaid, (19CV06268) dismissed May 17, 2021;

(2) Quaid v. Berman (21CV01409, filed April 7, 2021, voluntarily dismissed Jun 14, 2021;

(3) Quaid v. Berman (2:21-CV-04793-ODW-JPRx) filed in federal district court on June 11, 2021, notice of dismissal filed October 8, 2021;

(4) Quaid v. Boyett (2:20-CV-10761), filed in federal district court on November 23, 2020, notice of dismissal filed October 5, 2021;

(5) Quaid v. Turicchis (2:21-CV-08127), filed in federal district court on October 11, 2021, judgment of dismissal for lack of subject matter jurisdiction and failure to comply with court order entered December 14, 2021;

(6) Quaid v. Williams (2:21-CV-08099-FMO-MRW), filed by Evi Quaid in federal district court on October 10, 2021, judgment of dismissal for lack of subject matter jurisdiction and failure to comply with court order entered January 14, 2022;

(7) Quaid v. Fox (2:21-CV-08116), filed by Evi Quaid in federal district court on October 10, 2021; judgment of dismissal for lack of subject matter jurisdiction and failure to comply with court order entered December 14, 2021.

With respect to vexatious litigant status pursuant to Section 391(b)(2), with respect to a party who attempts to relitigate causes of action, claims, controversies, or issues of fact or law determined or concluded by the final determination against the same defendant or defendants to whom the litigation was finally determined, the Bermans raise the following:

(1) the Quaids’ in pro per filing of the complaint against the Bermans in federal district court (Case No. 2:20-CV-10761), in which they alleged the Bermans “engaged against wrongful conduct against plaintiffs that was both illegal and malicious when the Bermans fraudulently and negligently acquir and transferred to themselves real property, its address an mailbox belonging to plaintiffs . . . The Quaids discovered the theft. . . ,” and further alleged the Bermans engaged in wrongful conduct through their fraudulent acquisition of plaintiff’s real property. The Quaids filed a notice of dismissal of the Bermans from the action on March 30, 2021;

(2) the Quaids’ in pro per filing on June 11, 2021 of the federal district court complaint against the Bermans and the Turicchis for quiet title, declaratory relief, and cancellation of instruments (Case No. 2:21-CV-04793-ODW-JPRx), in which they alleged the Bermans received no valid title from the Quaids because of their forgery and recordation of the fraudulent and void Grant Deed, and which alleges further they sent a letter to the Turicchis in 2010 advising that the Turicchis did not own the property and had purchased it from someone who did not own it. The Quaids filed a notice of dismissal after the Bermans had filed a motion to dismiss and to have the Quaids declared vexatious litigants. As a result, the federal court dismissed the action finding that because the Quaids had previously dismissed any federal or state court action based on and including the same claim, the notice of dismissal operated as an adjudication on the merits;

(3) the Quaids’ in pro per filing on February 14, 2023 of their Fourth Amended Cross-Complaint in this action (Case No. 19CV06268), alleging that the Turicchis knew before they purchased the Quaid property in 2007 that their Grantor, the Bermans, did not legally own it when they conveyed it to them, and that when the Turicchis entered into the deal with the Bermans they did so with full knowledge that the Quaid-Berman Grant Deed was forged.

With respect to vexatious litigant status pursuant to Section 391(b)(3), related to a party who “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,” the Bermans note the Quaids’ pattern of filing, dismissing, and re-filing actions they know to be barred by the statutes of limitation, timed to prevent a court from conducting a hearing on that tissue after the Bermans have filed a motion to strike or demurrer on statute of limitations grounds. They assert the Quaids have known since December 2020, when the Bermans filed their demurrer to the Quaids’ initial cross-complaint in this action, that their claims against the Bermans were barred by the statute of limitations. To avoid having the issue determined against them, while maximizing the burden on the Bermans and the courts, the Quaids have engaged in a pattern of repeatedly requiring the Bermans to obtain counsel, file a demurrer or motion to dismiss—or at least send a pre-filing meet and confer letter—and then dismissing each action without prejudice and refiling it in another court. The tactics have unnecessarily taxed the resources of both the Bermans and multiple courts. They have also filed other documents that subjected the Bermans to unnecessary burden, such as the Request for Judicial Notice filed in response to their counsel’s meet-and-confer declaration, which recites grievances against the Bermans and their counsel, showing their animus against and intent to abuse the litigation process to harass the Bermans. They even went so far as to file a federal malpractice complaint against the Bermans’ counsel, which they failed to prosecute or comply with a court order, resulting in its dismissal.

The Bermans seek imposition of a pre-filing order against the Quaids pursuant to Code of Civil Procedure section 391.7(a), in order to curb their misuse of the system through their repeated filing and litigating the same issues, wasting the time and resources of the court system and other litigants.

The motion is supported by a request for judicial notice of the state and federal court documents referenced in the motion.

Quaid opposition: The Quaids, through their counsel, have opposed the vexatious litigant motion. They first contend that this Court has already denied a vexatious litigant motion filed against the Quaids, and in doing so held that certain of the actions cited by the Bermans do not support a vexatious litigant finding, since when a voluntary dismissal occurs prior to the appearance of any defendant and/or prior to any significant involvement by the trial court, it does not fulfill the purpose of the vexatious litigant statutory scheme. They assert that the Court identified three cases and found that they were dismissed before the defendant appeared and prior to the conduct of any hearing, and that found that no evidence existed to suggest that the dismissals had any unreasonable impact by causing serious financial results to the defendants in those actions, or that they placed an unreasonable burden on the courts in which they were filed, and were therefore not the sort of matters which supported a vexatious litigant finding. They note that the current motion does not identify any actions or pleadings filed by the Quaids since the Court’s denial of the previous vexatious litigant motion. When those three dismissals are eliminated from consideration, the Quaids contend that the Bermans have not identified at least five litigations finally determined adverse to the Quaids, within the last five years.

With respect to attempts to relitigate the same causes of action and issues under subsection (b)(2), the Quaids contend that the only other pleading cited by the Bermans in support of their argument that the Quaids are vexatious litigants under this provision—other than the 11/23/20 complaint and 7/11/21 complaints that the Court deemed not subject to the vexatious litigant statute—is the Fourth Amended Cross-Complaint they filed in this action. They assert that this one pleading is insufficient to support a finding that the Quaids have made repeated attempts to relitigate the same causes of action and issues, since even two attempts have been found insufficient to satisfy the requirement, under Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494. Further, they note that they now have counsel, which they assert is an important factor in addressing any alleged improper behavior, and that the Quaids are defendants in this action, and were merely trying to defend themselves and, where necessary, assert cross-claims, some of which are compulsory.

With respect to subdivision (b)(3), involving the repeated filing of unmeritorious motions, papers, and other pleadings that are frivolous, the Bermans cited only pleadings that were cited in the original motion and already considered by the court, or could have been considered. They complain that the Bermans should not be permitted to bring a vexatious litigant motion with the same supporting evidence as that considered with the original, because doing so would give the Bermans two bites of the apple.

Reply: The Bermans filed their original reply papers on July 28, 2023, and filed a corrected reply on July 31, 2023. [The Court is uncertain what corrections were made, as they are not indicated on the face of the “corrected” reply, and the two documents appear largely identical on their faces, except for formatting issues.]

The reply contends that the Quaids have mischaracterized the prior vexatious litigant motion brought in this action, and this Court’s ruling on it, in which it exercised its discretion to deny the motion at that time. This motion is based on different laws and different evidence, including evidence not submitted by Lawyer’s Title and Fidelity in support of the earlier motion. It contends that the additional materials show that the Quaids have not simply filed and voluntarily dismissed more than five actions in propria persona within the last seven years, but have persistently burdened the Bermans with having to prepare and file demurrers and motions to strike which are not heard because the actions were dismissed, and have burdened courts with expending unnecessary resources in entering orders and judgments.

The Bermans assert that neither the Quaids’ current representation by counsel, nor their dismissal of the 5ACC, prevent a determination that they are vexatious litigants. The current representation issue was addressed in the motion. No explanation is provided as to why the 5ACC was dismissed, particularly after once again forcing the Bermans to incur the expense of filing a demurrer. Further, the dismissal cannot avoid the vexatious litigant determination, since a contrary rule would permit a litigant to escape the vexatious litigant finding by dismissing a party or action prior to a ruling, and then again refiling it. (Pittman v. Beck Apartments Ltd. (2018) 20 Cal.Ap.5th 1009, 1024-1025.)

The Bermans contend they have shown, through their request for judicial notice, at least seven actions filed by the Quaids in pro per within the last seven years, some of which required expenditure of court resources through court-prepared orders and judgments. The Quaids also dismissed other actions after requiring the Bermans to appear and file motions. Another action was dismissed on the eve of the deadline for the Bermans to file a demurrer. The Quaids have known their actions against the Bermans were baseless and barred by the statute of limitations since at least December 2020, when the Bermans filed their demurrer to the Quaids original cross-complaint in this action. Since that time, the Bermans and the courts have been forced to expend resources in an endless loop of filing time-barred claims, and dismissing them before demurrers (state) or dismissal motions (federal) could be heard.

The current motion is supported by evidence not in front of the court in the prior vexatious litigant motion, including evidence showing the Bermans had appeared in the second federal action and filed a motion to dismiss and vexatious litigant motion, but dismissed it before those could come to hearing. Also, they dismissed their free-standing state action against the Bermans on the eve of the deadline for filing demurrer, and after the Bermans expended resources to prepare it. They believe they have shown that the Quaids’ litigation conduct has required unreasonable expenditures of court time and resources, including at least four federal actions brought in pro per, in which the federal courts have been required to prepare and enter orders and judgments.

The Bermans further note that the Quaids’ do not dispute that their claims against the Bermans were finally determined adversely to the Quaids by the federal court’s October 13, 2021, order, in stead only contending that their subsequent filing of the 4ACC was insufficient to constitute a “repeated” attempt to relitigate the claims. The Bermans argue the Quaids’ reliance on Holcomb is misplaced, because it is not the number of litigation attempts, but the risk of repetition, that is relevant to whether there have been “repeated” relitigation attempts. The evidence before shows the existence of a risk that the Quaids will attempt again to relitigate the claim, given their history of doing so. The fact that they were brought into the case as defendants does not alter their relitigation history.

Finally, with respect to Section 391(b)(3), the Bermans state that the opposition ignores evidence in support of a (b)(3) vexatious litigant finding, and instead argues that the issue was disposed of by the denial of the prior motion. However, the prior motion was made only under (b)(1), and not (b)(3). The Quaids have filed repeated and overlapping actions requiring the Bermans to obtain counsel and prepare responses, only to prevent a hearing on statute of limitations by filing a dismissal, and then refiling the actions, constituting a pattern of frivolous, meritless filings under (b)(3).

ANALYSIS: For the reasons more fully articulated below, the Court will grant the motion. The Court finds that Randy Quaid and Evgenia Quaid are, in fact, vexatious litigants, pursuant to the terms of Code of Civil Procedure section 391(b)(1) and (b)(2).

The Court will issue a prefiling order prohibiting either Randy Quaid or Evgenia Quaid 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.

1. Judicial notice.

In bringing the motion, the Bermans have sought judicial notice of a series of the records of both state and federal courts. Further, in opposition to the motion, the Quaids have sought judicial notice of this Court’s November 28, 2022 Minute Order in this action, in which it ruled on the previous vexatious litigant motion brought by other cross-defendants. Pursuant to Evidence Code section 452(d), and Del E. Webb Corp. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604, cited by both the Bermans and the Quaids, it is appropriate to take judicial notice of such records. Neither the Bermans nor the Quaids objects to the Court taking judicial notice of the records proferred by the other party. The Court will judicially notice the court records.  

2. Statutory authority for vexatious litigant motion and requested prefiling order

The statutory scheme involving vexatious litigants is set forth in Code of Civil Procedure sections 391 through 391.8. Section 391(b) defines a “vexatious litigant” to mean a person who does any of the following:

(1) In 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.

(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.

(3) In 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.

(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

Section 391(a) defines “litigation” to mean “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” Section 391(d) defines “plaintiff” to mean “the person who commences, institutes or maintains a litigation or causes it to be commenced, instituted or maintained, including an attorney at law acting in propria persona.” For purposes of Section 391(b)(1), a defendant who files a cross-complaint has commenced a separate, distinct, and independent cause of action, and the cross-complaint may count as one of the “five litigations” required for a vexatious litigant finding under that provision. (Blizzard Energy, Inc. v. Schaefers (2022) 85 Cal.App.5th 802, 804.)

The vexatious litigant finding may be sought as a basis to require the plaintiff to furnish security (Code Civ. Proc., §§ 391.1-391.6), or as a basis for imposition of a prefiling order prohibiting the party from filing any new litigation, in pro per, without obtaining leave of the presiding judge (Code Civ. Proc., §§ 391.7-391.8), or both. In this case, only a pre-filing order is at issue.

Pursuant to Code of Civil Procedure section 391.7, a court may on motion of any party or on its own motion, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of the 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. (Code Civ. Proc., § 391.7, subd. (a).) The presiding justice or judge shall permit the filing of the litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay, and may condition the filing upon the furnishing of security for the benefit of the defendants. (Code Civ. Proc., § 391.7, subd. (b).) The pre-filing order statute has been upheld as constitutional, because it preserve the right for the vexatious litigant to seek permission of the presiding judge to file future litigation. (In re R.H. (2009) 170 Cal.App.4th 678, 704.)

Courts have defined “finally determined” as the time a judgment becomes final for all purposes, i.e., when all avenues for direct review have been exhausted. (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 993.) A litigation is finally determined adversely to a plaintiff within the meaning of the vexatious litigant law if he does not win the action or proceeding he began, including cases that are voluntarily dismissed by a plaintiff. (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406-407.) An action which is dismissed by the plaintiff, with or without prejudice, is nevertheless a burden on the target of the litigation and the judicial system, albeit less of a burden than if the matter had proceeded to trial, and a party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the actions through to completion. (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779.)

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. (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169-1170.) Any determination that a litigant is vexatious must comport with the intent and spirit of the vexatious litigant statutes, the purpose of which 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. (Morton v. Wagner (2007) 156 Cal.App.4th 963, 970-971.)

A trial court exercises its discretion in determining whether a person is a vexatious litigant. (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1169.) The critical finding to determine whether a litigant is vexatious is whether the litigant’s actions are unreasonably impacting the objects of the actions and the courts, as contemplated by the vexatious litigant statute. (In re Kinney (2011) 201 Cal.App.4th 951, 957-958.) “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.” (Taliaferro v. Hoogs (1965) 237 Cal.App.2d 73, 74.)

When the motion is based upon the provisions of Section 391(b)(2) [applicable to repeated attempts to relitigate the same claims, controversies, or issues of fact or law, after they have ben finally determined against the party], the term “repeatedly” refers to “a past pattern or practice on the part of the litigant that carries the risk of repetition in the case at hand.” (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1505.) As few as three actions or motions have been found sufficient to form the basis for a vexatious litigant designation pursuant to this provision, where they all seek the exact same relief which has already been denied or all relate to the same judgment or order, or are filed in close succession. (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1266-1267, citing Morton v. Wagner, supra, 156 Cal.App.4th at p. 972.) However, it is the risk of repetition, more than the number of attempts to relitigate which were made, which determines whether the circumstances fall within the provisions of Section 391(b)(2). (Id., at p. 1267.)

3. Application

The current motion seeks an order designating Randy Quaid and Evgenia Quaid to be vexatious litigants, and the entry of a prefiling order against them, pursuant to the terms of Code of Civil Procedure section 391.7.

            A.        Impact of this Court’s ruling on the prior vexatious litigant motion.

In opposing the motion, the Quaids have argued that this Court’s prior ruling on the vexatious litigant motion filed by cross-defendants Lawyers Title Company and Fidelity National Financial, Inc. has essentially foreclosed its consideration of the current motion, in part because of the findings it made in denying the previous motion.

The Court’s prior ruling was made based upon the evidence before it at that time, and was limited to whether that evidence fulfilled the requirements set forth in Code of Civil Procedure section 391(b)(1). The Court noted that there was no evidence before the court at that time that would suggest that the three dismissals had imposed significant burdens to the opposing parties or the courts in which they were filed, and thereupon found that they were not the sorts of matters which would support a vexatious litigant finding.

The current motion extends beyond Section 391(b)(1), and also is brought pursuant to subdivisions (b)(2) and (b)(3). The judicial notice request in support of the motion has also provided the Court with new information related to the vexatious litigant issue under Section 391(b)(1). The Court does not believe that its denial of the previous motion, made by different parties, based in part on different grounds, and supported by a different evidentiary showing, in any way forecloses or adversely impacts its consideration of the current motion on its merits.

1. Section 391(b)(1)—commencement, prosecution, or maintenance, in propria persona, of at least five litigations within the last seven years, which were finally determined adversely to the person.

As this Court noted above, the Bermans’ motion points to the following cases, which they contend show the commencement, prosecution, or maintenance by the Quaids, in propria persona, of at least five litigations within the last seven years, which were finally determined adversely to them:

(1) Verified cross-complaint and verified first amended cross-complaint in Turicchi v. Quaid, (19CV06268) dismissed May 17, 2021;

(2) Quaid v. Berman (21CV01409), filed April 7, 2021, voluntarily dismissed Jun 14, 2021;

(3) Quaid v. Berman (2:21-CV-04793-ODW-JPRx) filed in federal district court on June 11, 2021, notice of dismissal filed October 8, 2021;

(4) Quaid v. Boyett (2:20-CV-10761), filed in federal district court on November 23, 2020, notice of dismissal filed October 5, 2021;

(5) Quaid v. Turicchis (2:21-CV-08127), filed in federal district court on October 11, 2021, judgment of dismissal for lack of subject matter jurisdiction and failure to comply with court order entered December 14, 2021;

(6) Quaid v. Williams (2:21-CV-08099-FMO-MRW), filed by Evi Quaid in federal district court on October 10, 2021, judgment of dismissal for lack of subject matter jurisdiction and failure to comply with court order entered January 14, 2022;

(7) Quaid v. Fox (2:21-CV-08116), filed by Evi Quaid in federal district court on October 10, 2021; judgment of dismissal for lack of subject matter jurisdiction and failure to comply with court order entered December 14, 2021.

The Quaids counter by contending that this Court found that the cases which were voluntarily dismissed prior to the defendants’ appearance in the case and prior to the conduct of any hearing did not fulfill the purpose of the vexatious litigant statutory scheme, and are not the sort of matters which support a vexatious litigant finding. They then assert that, when those three matters are excluded, the requisite five litigations within the last seven years do not exist.

The Quaids’ argument somewhat misrepresented the Court’s prior ruling as having found that “no evidence exists” to suggest the three dismissal had any unreasonable impact by causing serious financial results to the defendants in those actions, or to suggest that they placed and unreasonable burden on the courts in which they were filed. The Court did not find that no evidence existed; rather the Court found that there was no evidence before the court at that time to permit it to make the required findings.

The documents of which the Bermans request judicial notice present the Court with a much clearer understanding of what occurred in those litigations.

In Turicchi v. Quaid, Case No. 19CV06268 (the current action), the Quaids, while acting in propria persona, filed a cross-complaint on October 7, 2020, and a first amended cross-complaint on December 28 or 30, 2020, while multiple demurrers and motions to strike were pending to the original cross-complaint. Multiple demurrers and motions to strike were also filed with respect to the first amended cross-complaint, with hearing scheduled for June 7, 2021, when the Quaids on May 17, 2021 filed a request for dismissal of their original cross-complaint, and on May 28, 2021, filed a request for dismissal of their first amended cross-complaint.

In Quaid v. Boyett, Case No. 2:20-CV-10761, the Quaids, acting in propria persona, filed a complaint in federal district court on November 23, 2020, and a First Amended Complaint on January 15, 2021. The complaint raised the issue of the Bermans’ allegedly fraudulent acquisition of the Quaids’ real and personal property. A Notice of Dismissal of the Bermans and defendant Meeks was then filed on March 30, 2021, and a Notice of Dismissal of the entire case was filed on October 5, 2021.

In Quaid v. Berman, Case No. 21CV01409, the Quaids, acting in propria persona, on April 7, 2021, filed a verified complaint naming the Bermans and the Turicchis as defendants, personally serving them on May 21 and 24, respectively. Approximately one week before responsive pleading would have been due, the Quaids on June 14, 2021, filed a voluntary dismissal, without prejudice, as to all claims and parties.

In Quaid v. Berman, Case No. 2:21-CV-04793-ODW-JPRx, the Quaids, acting in propria persona, filed a complaint in federal district court on June 11, 2021. The Bermans prepared and on September 8, 2021, filed a motion to dismiss under FRCP 12(b)(6), and sought vexatious litigant declarations against the Quaids, as well as a pre-filing order, or an order requiring the Quaids to furnish security, setting the matter for hearing on October 25, 2021. Before the motion could be heard, however, the Quaids filed a Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c). On October 13, 2021, United States District Judge Otis D. Wright II issued a Minute Order which noted that he was in receipt of the Notice of Voluntary Dismissal, and ordered that the action and all claims be dismissed, and the pending motions to dismiss were denied as moot. The order expressly provided that if Plaintiffs had previously dismissed any federal- or state-court action based on or including the same claim, their notice of dismissal operated as an adjudication on the merits, pursuant to Federal Rule of Civil Procedure 41(a)(1)(B). The Court then vacated all dates and deadlines, and ordered the Clerk of the Court to close the case.

In Quaid v. Williams, Case No. 2:21-CV-08099 FMO (MRWx), Evi Quaid, acting in propria persona, on October 10, 2021, filed an action in federal district court against the Bermans’ attorney, Susan Williams, and Michael King, alleging claims for malpractice, negligent supervision, and conflict of interest. An order of which the Bermans seek judicial notice, filed January 14, 2022, reveals that the court had on December 10, 2021, issued against plaintiff an order to show cause before January 9, why the action should not be dismissed for plaintiff’s failure to complete service of the summons and complaint. When no proof of service was filed, the federal court dismissed the action without prejudice for failure to timely effect service. While no appearance was made by the defendants, the federal court was required to spend a not-insignificant amount of time handling the action, including issuing multiple orders.

In Quaid v. Turicchi, Case No. 2:21-CV08127-CBM-E, the Quaids, acting in propria persona, on October 11, 2021, filed an action in federal district court against R. Scott Turicchi. A minute order of the court dated December 14, 2021, of which the Bermans have sought judicial notice, reflects that the court on November 2, 2021, dismissed the complaint for lack of subject matter jurisdiction, with leave to amend, and ordering that plaintiffs file a First Amended Complaint no later than November 22, 2021. The order noted that no such First Amended Complaint had been filed, and that all orders and documents issued by the court and mailed to plaintiffs had been returned by the Post Office as undeliverable, from which the court concluded that plaintiffs had no complied with Local Rule 41-6 which requires pro se parties to keep the court and all other parties informed of the party’s current address, telephone number, and email address. The order proceeded to analyze the court’s power to dismiss with prejudice an action or claim sua sponte for a plaintiff’s failure to prosecute or to comply with the federal rules or with a court order, found that an evaluation of the relevant factors weighed in favor of the decision to dismiss, and noted that plaintiffs were warned of the consequences for failing to timely file a First Amended Complaint. The Court found plaintiffs had abandoned the prosecution of the action, and any alternative less than dismissal would be inadequate to remedy their failure to prosecute and obey court orders. Even so, the Court ultimately dismissed the action without prejudice, and issued a judgment doing so. Given that multiple orders were issued, the latter of which included a substantial legal analysis of the court’s authority to dismiss under the circumstances which were present, the efforts of the federal court in handling the action were not insignificant.

In Quaid v. Fox, Case No. 2:21-CV-08116-PA-AS, Evi Quaid, acting in propria persona, on October 12, 2021, filed an action in federal district court against defendants Gerard Fox and Lauren Green, again alleging claims for malpractice, negligent supervision, and conflict of interest. A minute order dated December 14, 2021, of which the Bermans have requested judicial notice, reflects that the federal court had dismissed the complaint on October 15, 2021, with leave to amend for lack of subject matter jurisdiction, and ordered a First Amended Complaint to be filed no later than November 8, 2021, and warning that the failure to do so could result in dismissal of the action. The order further noted that no such First Amended Complaint had been filed, and that all orders and documents issued by the court and mailed to plaintiffs had been returned by the Post Office as undeliverable, from which the court concluded that plaintiff had not complied with Local Rule 41-6 which requires pro se parties to keep the court and all other parties informed of the party’s current address, telephone number, and email address. The order proceeded to analyze its power to dismiss with prejudice an action or claim sua sponte for a plaintiff’s failure to prosecute or to comply with the federal rules or with a court order, found that an evaluation of the relevant factors weighed in favor of the decision to dismiss, and noted that plaintiff was warned of the consequences for failing to timely file a First Amended Complaint. The Court found plaintiff had abandoned the prosecution of the action, and any alternative less than dismissal would be inadequate to remedy the failure to prosecute and obey court orders. Even so, the Court ultimately dismissed the action without prejudice, and issued a judgment doing so. Given that multiple orders were issued, the latter of which included a substantial legal analysis of the court’s authority to dismiss under the circumstances which were present, the efforts of the federal court in handling the action were not insignificant.

With respect to Evgenia Quaid, this constitutes seven litigations filed while in propria persona which are legally deemed to have been finally determined adversely to her, within the last seven years. With respect to Randy Quaid, this constitutes five litigations filed while in propria persona which are legally deemed to have been finally determined adversely to him, within the last seven years.

The additional information presented by the Bermans in support of their motion, which was not fully before the Court when it denied the earlier vexatious litigant motion against the Quaids, shows that far more effort was required of the respective courts and the opposing parties in the cases than this Court had previously assumed. In fact, only in Quaid v. Boyett case do the documents of which judicial notice was requested support the conclusion that little or no involvement by the federal court or the opposing parties was required prior to its dismissal by the Quaids. While no responsive pleadings were filed in Quaid v. Berman, Case No. 21CV01409, the complaint was personally served on the Bermans and the Turicchis, and the dismissal was filed only seven days prior to the date upon which the Bermans had to respond to the complaint, from which this Court can infer that counsel had been retained, and substantial work would necessarily have been performed by counsel, in preparation for filing an appropriate pleading response by the deadline to respond.

Additionally, the Court notes the existence of an eighth (re Evgenia Quaid) and sixth (re Randy Quaid) such case, respectively, in Quaid v. Turicchi, Case No. 21CV04053, in which the Quaids filed, while in propria persona, on October 21, 2021, yet another state court complaint to quiet title against R. Scott Turicchi on October 21, 2021. Defendant Turicchi was forced to file a motion to strike the complaint based upon the lack of required verification. After the motion was granted by this Court, with leave to amend, the Quaids on February 14, 2022, filed a First Amended Complaint. On February 23, 2022, they filed a Request for Full Dismissal Without Prejudice.

Because Case No. 21CV04053 was not a subject of the Bermans’ motion, and judicial notice of its pendency and dismissal were not requested, the Court will not count this action toward the total number of litigations for purposes of any findings made by the Court under Section 391(b)(1). However, its existence certainly acts to soothe any qualms the Court might earlier have had with respect to whether the Quaid v. Boyett dismissal was or was not the sort of final determination that would fulfill the purpose of the vexatious litigant statutory scheme. While the Court previously exercised its discretion to not consider the Quaid v. Boyett dismissal as one of the five adverse determinations required for a vexatious litigant finding pursuant to Section 391(b)(1), the existence of Case No. 21CV04053 is sufficient to cause this Court to conclude that its discretion should be exercised in favor of considering the Quaid v. Boyett dismissal as a final adverse determination for purposes of a vexatious litigant finding under Section 391(b)(1).

For all of these reasons, the Court will find Randy Quaid and Evgenia Quaid qualify as vexatious litigants within the meaning of Code of Civil Procedure section 391(b)(1), in that they have each filed at least five litigations, in propria persona, within the last seven years, which were finally determined adversely to them.

1. Section 391(b)(2)(ii)—after final determination of litigation against the person, repeated attempts to litigate against the same defendants in whose favor the litigation had been finally determined, the same action, claim, controversy, or issues of fact or law, concluded by the final determination.

In asserting that the Quaids are vexatious litigants within the meaning of Section 391(b)(2)(ii), the Bermans set forth a list of actions commenced by the Quaids while in pro per, and related to and alleging that the Quaid-Berman Grant Deed was forged and that no title passed from the Bermans to the Turicchis in 2007, including: (a) Case No. 2:20CV010761-FMO-MAAx, filed November 23, 2020, in the United States District Court for the Central District of California, naming the Bermans and others as defendants, which was dismissed by the Quaids on March 30, 2021; (b) Case No. 2:21-CV-04793-CBM-JPRx, filed in the United States District Court for the Central District of California, filed June 11, 2021, which named the Bermans and the Turicchis as defendants, and was dismissed by the Quaids on October 8, 2021, while the Bermans’ motion to dismiss and to declare the Quaids vexatious litigants was pending; and (c) the Quaids’ 4ACC filed in this action, naming the Turicchis as defendants.

Certainly, the voluntary dismissal filed in Case No. 2:20CV010761-FMO-MAAx legally constitutes a final determination adverse to the Quaids, for purposes of determining whether subsequent attempts to relitigate the same claims, controversies, or issues of law or fact fall within the terms of Section 391(b)(2)(ii). Further, in ordering Case No. 2:21-CV04793-CBM-JPRx dismissed, the federal court stated that if plaintiffs had previously dismissed any federal- or state-court action based on or including the same claim, their notice of dismissal in the action operated as an adjudication on the merits pursuant to Federal Rule of Civil Procedure 41(a)(1)(B). The Quaids’ previous dismissal of Case No. 2:20CV010761-FMO-MAAx was, in fact, based on and included the same claim—as was their dismissal of Case No. 21CV01409. Consequently, the Quaids’ October 8, 2021, dismissal of Case No. 2:21-CV-04793-CBM-JPRx legally constituted an adjudication against them on the merits of their claim that the Quaid-Berman Grant Deed was forged, and the Turicchis therefore did not obtain valid title to the property. The Bermans contend that the Quaids’ in pro per filing of their 4ACC in this action in February 2023, was sufficient to establish the Quaids’ repeated attempts to litigate against the same defendants the same claims, controversies, or issues of fact or law, which had been concluded by the prior final determination of the litigation against them, and further shows the risk that the Quaids will continue to file and dismiss actions against the Bermans and the Turicchis based upon these same claims.

The Court agrees. As noted by the Bermans in their reply, the term “repeatedly” refers to a past pattern or practice on the part of the litigant that carries the risk of repetition, and the number of attempts at relitigation is not determinative. (See Goodrich v. Sierra Vista regional Center (2016) 246 Cal.App.4th 1260, 1267.) Further, reference solely to the filing of the 4ACC is not the end of the story, and does not provide the full picture with respect to the risk of repetition which exists. For example, while the Bermans’ motion does not specifically articulate any other actions filed by the Quaids while in pro per as supporting their contention that the Quaids are vexatious litigants within the meaning of Section 391(b)(2), the Court notes the existence of the following cases, which were also all based upon the contention that the Quaid-Berman Grant Deed was forged, and the Turicchis therefore did not acquire valid title to the Mountain Drive property in 2007: (1) The Quaids on April 7, 2021 filed, while in pro per, Case No. 21CV01409, naming the Bermans and the Turicchis as defendants, and dismissed that action on June 14, 2021. (2) The Quaids on October 11, 2021, while in pro per, filed Case No. CV21-8127-CBM(Ex)in the United States District Court for the Central District of California, naming Scott Turicchi as a defendant. The federal court dismissed the complaint for lack of subject matter jurisdiction, with leave to amend, and when no amended complaint was filed, found that the Quaids had abandoned their claim, and dismissed the action without prejudice for lack of subject matter jurisdiction, lack of prosecution, and failure to comply with a court order. (3) The Quaids on October 21, 2021, while in pro per, filed Case No. 21CV04053 against R. Scott Turicchi. After a motion to strike filed by Turicchi was granted, with leave to amend, the Quaids filed a First Amended Complaint on February 14, 2022, and then filed a Request for Full Dismissal Without Prejudice on February 23, 2022.

The Court notes that the Turicchis sometimes named the Bermans in their claims, sometimes named one or both of the Turicchis, and sometimes named both the Bermans and the Turicchis. However, they have exhibited a clear pattern and practice of filing actions, in pro per, based upon their claim that the Quaid-Berman Grant Deed was forged, and that the Turicchis did not obtain valid title from the Bermans in 2007, dismissing them before any adjudications on the merits of the claims could be determined by the court, and then refiling them. Several were filed after the October 8, 2021 dismissal which acted as an adverse adjudication against the Quaids pursuant to federal law, including the Quaids’ 4ACC in this action, and Case No. CV21-8127-CBM(Ex).

The Court acknowledges that Case No. 21CV04053 was not among the cases for which the motion sought judicial notice, and was not among the cases which the Berman motion articulated as the basis for any of their vexatious litigant contentions. The Court is therefore not including it as one of the “repeated” attempts to relitigate matters which had been finally determined against the Quaids, by virtue of the legal effect of the dismissal of Case No. Case No. 2:21-CV04793-CBM-JPRx. Even so, its existence acts to further emphasize the persistence with which the Quaids have acted in filing actions based upon the forged Grant Deed claim, dismissing them, and refiling them, in illustrating the not-inconsiderable risk that the Quaids could or would continue to file and dismiss such claims, if they are not found to be vexatious litigants and subjected to a pre-filing order.

Similarly, the existence of multiple cases based upon the same claims and issues which predated their October 8, 2021 dismissal of Case No. 2:21-CV04793-CBM-JPRx, which the federal court deemed to be a final adjudication against them on the merits (including Case No. 21CV01409 and Case No. No. 2:20CV010761-FMO-MAAx), further emphasizes the considerable risk which exists that, if not constrained by a pre-filing order, the Quaids could continue this pattern or practice indefinitely, to the extreme detriment of the Bermans, the Turicchis, and the courts.

The Court therefore finds that the Quaids are vexatious litigants, within the meaning of Code of Civil Procedures section 391(b)(2).

1. Section 391(b)(3)—in any litigation, while acting in propria persona, repeatedly filing unmeritorious motions, pleadings, or other papers, conducting unnecessary discovery, or engaging in tactics that are frivolous or solely intended to cause unnecessary delay.

The Court finds that the motion fails to establish that the Quaids are vexatious litigants, within the meaning of Section 391(b)(3). As noted above, this provision defines “vexatious litigant” to include “In 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.”

The Bermans’ motion contends that the Quaids’ repeated filing of unmeritorious complaints in separate actions is sufficient to bring the Quaids within the provisions of Section 391(b)(3). However, the express provisions of subdivision (b)(3) apply to the repeated filing of unmeritorious papers, or the engagement in frivolous tactics (etc.) “in any litigation.” The Court interprets those terms to apply to conduct occurring within the course of a single action by a party acting in propria persona.

While evidence of the repeated filing of unmeritorious motions, pleadings, or papers, the conduct of unnecessary discovery, or engagement in tactics that are frivolous or solely intended to cause unnecessary delay may or may not exist within the scope of one or more of the litigations, there is no such evidence properly before the Court for purposes of this motion. Consequently, based upon the evidence presented by the Bermans’ motion, the Court cannot find that the Quaids are vexatious litigants within the meaning of Code of Civil Procedure section 391(b)(3).

1. Designation of Randy Quaid and Evgenia Quaid as vexatious litigants, and imposition of pre-filing order.

The Court has found that Randy Quaid and Evgenia Quaid qualify as vexatious litigants within the meaning of both Section 391(b)(1) and (b)(2)(ii), and in particular found that the manner in which the Quaids have been vexatious is indicative of a serious risk of repetition, given the sheer number of cases in which they have, while in pro per, filed pleadings which were based—entirely or in part—upon their contention that the Quaid-Berman Grant Deed was forged, and that the Turicchis therefore did not acquire good title to the Mountain Drive Property, only to dismiss them when any day of reckoning (i.e., a hearing on the merits of the Bermans’ defenses) appeared to be approaching.

These are precisely the sort of circumstances for which the vexatious litigant statutes, and in particular the prefiling order requirements, were intended.

The Court will therefore issue a prefiling order prohibiting either Randy Quaid or Evgenia Quaid 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. In the tentative ruling issued prior to the August 21 hearing date on this motion, the Court requested that the Bermans prepare and submit to the Court for execution the Prefiling Order—Vexatious Litigant, (Judicial Council Form VL-100). The Court notes that they have now done so. The Court intends to execute that order.

The Judicial Council form for use by a vexatious litigant, acting in propria persona, to seek leave to file new litigation, is Form VL-110, entitled Request to File New Litigation by Vexatious Litigant. The Court notes, however, that the Quaids remain free to file any litigation while represented by counsel, without obtaining permission to do so.