Grant v. Bank of America

108 Grant v. Bank of MOTION TO DEEM VEXATIOUS LITIGANT – America GRANTED IN PART AND DENIED IN PART

Defendant Bank of America, N.A. (“Defendant” or “BANA”) moves for an order declaring plaintiffs Gavin Grant and Michelle Grant (“Plaintiffs”) vexatious litigants, requiring them to post a security within 30 days, and prohibiting Plaintiffs from filing any new litigation in California without first obtaining leave.

Defendant seeks judicial notice of the underlying Deed of Trust and various court records filed in the prior litigation actions. Plaintiffs argue judicial notice is not proper because Defendant has offered no declaration authenticating any of the exhibits attached to the request. They do not argue, however, that any of the exhibits are not what they are purported to be. Under Evidence Code section 453, Defendant is only required to furnish the Court with sufficient information to enable it to take judicial notice of the matter submitted. Defendant’s RJN provides a brief description of each exhibit and the legal authority pursuant to which judicial notice is requested. The Court finds this to be sufficient and the RJN is GRANTED.

Plaintiffs’ objection to the Declaration of Emily J Wagner is SUSTAINED, as the Declaration was not executed under penalty of perjury under the laws of the State of California. (Code Civ. Proc., § 2015.5.)

Defendant argues Plaintiffs are vexatious litigants because they have filed four separate other lawsuits involving the same property, none of which has survived beyond the pleading stage, re-litigating the same causes of action and issues that have already been decided. Thus, Plaintiffs should be required to post security in the amount of $18,900 prior to proceeding with this litigation. Defendant also argues that a prefiling order against Plaintiffs should issue pursuant to Code of Civil Procedure section 391.7. Defendant relies on section 391(b)(2) and (b)(3).

“[O]n a motion for an order requiring a vexatious litigant to post security, the moving party must make a showing

that there is no reasonable likelihood of the plaintiff prevailing in the action against that defendant. This showing is ordinarily made by the weight of the evidence but a lack of merit may also be shown by demonstrating that the plaintiff cannot prevail in the action as a matter of law.” (Golin v. Allenby (2010) 190 Cal.App.4th 616, 642.) “Sections 391, subdivision (c), 391.1, and 391.3, read in pari materia, require a vexatious litigant to post security, which includes reasonable attorney fees, when he fails to establish a reasonable probability of prevailing against the defendant.” (Singh v. Lipworth (2005) 132 Cal.App.4th 40, 45.)

The entry of a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts without first obtaining leave also requires a finding that the litigant is vexatious. (See Code Civ. Proc., § 391.7(a).)

Here, Plaintiffs are contesting a Notice of Trustee Sale in the foreclosure of their home by Clear Recon Corp. acting as trustee on behalf of beneficiary BANA. Plaintiffs have jointly filed one prior state court action (the 2023 action) and Gavin has separately filed two prior state court actions and one prior federal court action, all of which sought the same relief sought here: to prevent the foreclosure on their home. In granting Defendant’s Ex Parte Application for an Order Expunging Lis Pendens, the Court previously found that Plaintiffs cannot establish the probable validity of any of their claims here in light of the failure of any of their prior actions to raise a meritorious, actionable claim. On this Motion, the Court similarly finds that Plaintiffs have no reasonable likelihood in prevailing in this action against Defendant.

Plaintiffs argue that their action is not barred by res judicata because they are asserting a new theory based on lack of authority and based on new wrongful conduct which occurred after the final determinations of the prior cases. This argument is not persuasive. “California’s res judicata doctrine is based upon the primary right theory” and “ ‘[t]he primary right is simply the plaintiff’s right to be free from the particular injury

suffered.’ [Citation.]” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904.) Here, as Judge Craig Griffin held on sustaining BANA’s Demurrer to the FAC in the 2023 action, Plaintiffs have already contended in prior litigations that they should be free from a particular injury—the initiation of foreclosure proceedings. Because this action seeks to prevent injury based on the same primary right, res judicata applies.

Further, Plaintiffs’ FAC alleges that the 2017, 2018, and 2023 judgments are void for numerous reasons. (FAC ¶¶ 57-66.) These allegations demonstrate that Plaintiffs are attempting to relitigate the validity of those prior final determinations as well as the same legal issues. Thus, Plaintiffs’ argument that they are raising new issues rather than attempting to relitigate the same issues already determined falls flat and the Court finds that Gavin is a vexatious litigant.

Plaintiffs’ argument that the Motion must be denied as to Michelle is, however, well taken. Michelle was only named a plaintiff in the 2023 action. Because the statutes require “repeated attempts” to relitigate, the Court finds that her filing of the instant action does not qualify her as a vexatious litigant. (See Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1266 [holding as few as three motions may form the basis for a vexatious litigant].) Thus, the Motion is GRANTED as to Gavin only.

Because the Court sustained the objections to attorney Wagner’s declaration, it has no evidence before it supporting a request for security in a specific amount. In its discretion, the Court determines that $5,000 is an appropriate amount. Thus, pursuant to Code of Civil Procedure sections 391.1 and 391.3, Gavin Grant is ORDERED to furnish security in the amount of $18,900 within 30 days of the date of this order.

Further, pursuant to Code of Civil Procedure section 381.7, Gavin Grant is prohibited from filing any new litigation in the courts of this state in propia persona without first obtaining leave of the presiding justice or

presiding judge of the court where the litigation is proposed to be filed.

Moving party to give notice.

109 Kersten, M.D. v. Alicia DEMURRER – MOOT Surgery Center, 2026- 01553019

110 Kish v. Hyundai Motor MOTION TO COMPEL ARBITRATION – DENIED America, 2026- 01560834 Defendant Hyundai Motor America (“Defendant”) moves for an order compelling plaintiff Jennifer C. Kish (“Plaintiff”) to arbitrate all claims raised in this action and staying this action pending resolution of arbitration pursuant to two arbitration clauses contained in the Owner’s Handbook & Warranty Information (Owner’s Handbook) and the Bluelink Connected Services Agreement (CSA).

“ ‘Under “both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate.” ’ ” (Long v. Provide Commerce, Inc. (2016) Cal.App.4th 855, 861.) “ ‘[G]eneral principles of contract law determine whether the parties have entered a binding agreement to arbitrate.’ ” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) “ ‘Mutual assent, or consent, of the parties “is essential to the existence of a contract” [citations], and “[c]onsent is not mutual, unless the parties all agree upon the same thing in the same sense” [citation]. “Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings.” ’ ” (B.D. v.

Blizzard Entertainment, Inc. (2022) 76 Cal.App.5th 931, 943 (“Blizzard”).)