Preview
ELECTRONICALLY FILED
superior Court of California,
County of Placer
11/25/2020
LYLE D. SOLOMON, SBN 2? 26025 By: Laurel Sanders, Deputy Clerk
P.O. Box 1411
Rocklin, CA 95677
Telephone (916) 532-2726
Attorney for Plaintiff DONAIL|D HUBBARD
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
DONALD HUBBARD ) NO. S-CV-0045393
Plaintiff,
) PLAINTIFF’S OPPOSITION TO
) DEFENDANTS’ MOTION FOR AN ORDER
Vs. ) FOR DISMISSAL FOR FAILING TO TIMELY
) OBTAIN A PRE-FILING ORDER WITHIN 10
) DAYS OF THE SECOND NOTICE
MATTHEW JOHN BATANG paka, )
MAT BATANG, et al. ) Hearing] Date: December 11, 2020
) TIME: 8:00 a.m.
Defendants... ) DEPT, 3
)
INTRODUCTION
COMES NOW Plaintiff DONALD HUBBARD, by and through his attorney of record,
Lyle D. Solomon and opposes defendants to dismiss the complaint.
Plaintiff Donald Hubba rd admits that he has been designated as a vexatious litigant.
Plaintiff Donald Hubbard has « lisputed his designation as a vexatious litigant to no avail.
Defendants cite to Cali fornia Code of Civil Procedure section 391.7(c) in support of this
motion and ask the Court to ac cept their interpretation of that statute. However, a review of the
plain language of that statute d efies defendants’ interpretation. While this statute addresses the
court clerk’s duty not to filean| action for a vexatious litigant in propia persona itis silent on the
issue of a subsequent attorney substitution being either allowed to cure or not.
Hubbard vy.Batang, et al.Opp to Motion toDismiss
CCP§ 391.7(c) The clerk may not fileany litigation presented by a vexatious
litigant subject to a prefiling order unless the vexatious litigant first obtains an
order from the presiding justice or presiding judge permitting the filing. If the clerk
mistakenly files the litigation without the order, any party may file with the clerk
and serve, or t e presiding justice or presiding judge may direct the clerk to file
and serve, on the plaintiff and other parties a notice stating that the plaintiff isa
vexatious litigant subject to a prefiling order as set forth in subdivision (a). The
filing of the no ice shall automatically stay the litigation. The litigation shall be
automatically d ismissed unless the plaintiff within 10 days of the filing of that
10 notice obtains 4n order from the presiding justice or presiding judge permitting the
ll filing of the litigation as set forth in subdivision (b). If the presiding justice or
12 presiding judge issues an order permitting the filing, the stay of the litigation shall
13 remain in effec , and the defendants need not plead, until 10 days after the
14 defendants are served with a copy of the order. correct
15 Nowhere in the text of this cod e section isthe issue of a substitution of an attorney addressed, nor
16 is the word attorney even men ioned. This may be the reason that despite the cite to the code
17 section defense counsel chose not to include the text of the statute in the supporting points and
18 authorities.
19 Defense counsel instea d points to statements by Plaintiff which can be characterized as
20 “puffery”, an attempt to inflate his importance and participation in this litigation. Further
21 evidence is the use of off the c ff statements as supposed facts and evidence. These items on their
22 own certainly do not reach the level of credible evidence.
23 As anticipated defendai nts argue that Plaintiff's substitution of attorney in this action is
24 insufficient and this Court sho Id dismiss the complaint in this action. While Plaintiff did
25 initially filethe complaint in this action in propia persona, against the advice of counsel, he signed
26 and caused to be filed a substit tion of attorney. Plaintiff has found no statutory authority which
27 either requires that an individu: al designated as a vexatious litigant obtain a prefiling order prior to
28 having an action filed by an attorney or that a substitution of attorney, bringing in a licensed
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Hubbard v. Batang, et al.Opp to Motion toDismiss
attorney to represent him as a proper remedy. Notably, defendants have not presented any statute
to support that contention either.
LEGAL ARGUMENT
A. Vexatious Litig ant Pre-Filing Order
Defendants has correct y stated that Plaintiff has been desginated a vexatious litigant and
as such issubject to a pre-filin g order. Defendants have gone on to use almost a full page to
discuss the rationale for such aldesignation. In doing so defendants have chosen to ignore one
important fact, the current law. uit is neither frivolous nor a misuse of the court system.. Instead
defendants have focused on the procedural, most likely hoping that the Court will ignore the facts
10 contained inthe complaint. THe current action was filed as the result of a car accident. It was not
ir filed to harass the defendants, itwas not filed to use the court system for some improper purpose.
12 This is an action for personal injuries suffered by the Plaintiff in a motor vehicle accident caused
13 by one of the defendants. Thes¢ are facts not found in defendants’ motion.
14 Regardless of Plaintiff? designation as a vexatious litigant any action he brings isnot
15 automatically labeled by the Co urt as frivolous or harassing or a misuse of the court system. Did
16 Plaintiff fail to get a pre-filing rder as required by the statute? The answer is yes. When the
17 issue was raised Plaintiff had t 0 (2) options, according to defendants’ motion the first option
18 was to dismiss the complaint. Such an action would have resulted in the complaint being re-filed
19 by an attorney representing Plaiintiffand defendants’ would not have the option of filing this
20 motion. The second option, the one Plaintiff chose was to hire an attorney and filea substitution
21 of attorney. Despite defendants’ arguments to the contrary there is no authority to support the
22 argument that a substitution of ttorney under these circumstances is not authorized.
23 B. The Failure to Obtain a Pre-Filing Order is Cured by Attorney Substitution
24 Defendants are correct about one thing in regards to CCP §§ 391 - 398, nowhere in these
25 statutes is the substitution of an attorney listed as a cure for the failure of a vexatious litigant to
26 obtain a pre-filing order. Defendants are also wrong in their argument. Those same statutes do not
27 state that the substitution of an a ttorney is not a cure for the failure of a vexatious litigant to obtain
28 a pre-filing order.
Hubbard v. Batang, et al.Opp to N otion toDismiss
It isof note that while|asking the Court to interpret the statute in a manner which is neither
suggested by nor supported by the plain language of the statute, (See CCP § 391.7(c)),
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defendants’ have failed to cité
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a single court decision which supports that argument. There is no
cite to a single case which
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supports the argument that Plaintiff's failure to obtain a pre-filing order
cannot be cured by attorney substitution.
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The only caselaw cited by defendants’ only repeats the
rationale behind the statute, curbing gamesmanship in litigation which interestingly is exactly
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what defendants appear to be indertaking with this motion. Again, the only argument made by
defendants isnot that Plaintiffs lawsuit is frivolous or brought for an improper purpose, it is
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solely based on a procedural violation.
If defendants’
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motion isgranted the result will be that Plaintiff will hire an attorney to re-
11 file this lawsuit and the parties will start over after tying up the Court’s time and resources on this
12 motion which asks the Court to rule on form over substance.
13 Cc. The Attorney Substitution Cannot be Disregarded
14 Defendants again start by asking this Court to find that the statute expressly does not
15 provide for cure by substitution of attorney. In reality the statute does not state that fact. In fact
16 nothing in the statute even implies such an interpretation.
I Defendants do cite caselaw, In re Shieh (1993) 17 Cal.App.4th 1154, in support of the
idea that Plaintiffs substitution of attorney is a sham. The Shieh case isfactually distinguishable.
19 from the instant action. In Shieh the Court specifically found that the multiple actions brought
20 repeatedly by Shieh, were frivolous or brought for improper reasons. Such is not the case here.
21 Defendants have not argued in|their motion that Plaintiff's lawsuit is either frivolous or brought
22 for an improper purpose, instedd they focus entirely on the failure to obtain a pre-filing order and
23 that Plaintiff and attorney Solomon have a prior relationship. Neither of these facts are stated
24 either in the statute or the caselaw as elements for the Court to consider in finding that Plaintiff's
25 substitution of attorney isa sham.
26 In this case, unlike in Shieh, supra, Plaintiff's complaint is for personal injuries suffered in
27 a motor vehicle accident. Plaintiff's complaint was not brought to harass but to seek a
28 determination of liability and damages suffered in a motor vehicle accident.
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Hubbard v. Batang, et al.Opp to en to Dismiss
CONCLUSION
Plaintiff requests that this Court deny defendants’ motion to dismiss in its entirety.
In the alternative, ifthis Court grants defendants’ motoin and dismisses this action
Plaintiff requests that said dismissal be without prejudice as the motion does not attack the
substance of the complaint bu only goes to a procedural defect which can be cured.
Respectfully submitted.
Date: November 25, 2020 By. of /, Le a
Lyle DA6&ldmon, Attorney for Plaintiff
Hubbard v. Batang, et al.Opp to Motion to Dismiss
PROOF OF SERVICE
{CCP §§ 1013; 2015.5}
I,the undersigned, dec are that:
I am employed in the C ounty of Placer, over the age of 18 years, and not a party to the
within above entitled action. My address is P.O. Box 1411 Rocklin, CA 95677. On the
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date
written below, I served the dog ument(s) shown below:
NM
PLAINTIFF’S OPPOSITION TO DEFENDANTS’
Dn
MOTION FOR AN ORDER FOR
DISMISSAL FOR FAILIN G TO TIMELY OBTAIN A PRE-FILING ORDER WITHIN 10
DAYS OF THE
ry
SECOND NOTICE
[X] Via electronic mail. P ursuant to Emergency Rules Related to COVID-19, Emergency
Rule 12 I personally sent to the addressee’s email address a true copy of the above-
10 described document. I requested a delivery receipt and a read receipt.
1] [X] Via United States Post al Service. By depositing this piece of mail, properly addressed with
first-class postage atta hed, with the United States Postal Service on the same date as is
12 indicated below), a true copy thereof enclosed in asealed envelope with postage thereon fully
prepaid to the address s hown below
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David R. Casa dy, Esq.
15 BERMAN, BE RMAN, BERMAN, SCHNEIDER & LOWARY, LLP
2390 Professio) inalDrive
16 Roaeville, CA 95661
deasady@b3law.com
17
Jamie Rade\ack, Esq.
18 Hayes, Scott, B onino, Ellingson, Gusiani, Simonson & Clause,LLP
999 Skyway R pad, Suite 310
19 San Carlos, CA 94070
jradack@hayesscott.com
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21 I declare under penalty f perjury under the laws of the State of California that the foregoing
is true and correct and that this declaration was executed at Rocklin, California on the date given
22 below.
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24 DATED: Ulrs fro ZLA boas
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