Opinion
2:19-CV-06591-SSS (MAA)
08-18-2022
YUKI KOBAYASHI, Plaintiff, v. MORGAN MCMULLIN et al., Defendants.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
SUNSHINE SUZANNE SYKES, United States District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the records on file herein pertaining to the Motion to Declare Plaintiff a Vexatious Litigant (“Motion”) [Dkt. 230] filed by Defendants Morgan McMullin and Yeshia Braverman (together, “Defendants”), the Report and Recommendation of United States Magistrate Judge [Dkt. 279], Defendants' Objections [Dkt. 280], and Plaintiff Yuki Kobayashi's (“Plaintiff”) Response [Dkt. 281]. After conducting a de novo review of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge.
Defendants claim “[t]he Vexatious Litigant Report and Recommendation fails to note that the Magistrate has concluded that almost all of the claims against DEFENDANTS fail to state a cause of action.” [Dkt. 280 at 7]. Defendants are incorrect. The Magistrate Judge did note that “Plaintiff sufficiently pled at least some of his claims.” [Dkt. 179 at 12].
Defendants claim “[t]he Magistrate relies heavily on delaying a finding that Plaintiff Kobayashi is a vexatious litigant by relying on one unpublished district court cases [sic], which has no precedential value,” and that “an unpublished opinion cannot be cited as precedent.” [Dkt. 280 at 8, 17]. However, “[n]either the Ninth Circuit Rules nor the local rules of the [Central] District of California prohibit citation of unreported district court opinions. Indeed, [the Ninth Circuit] has condoned the use of unpublished district court decisions to identify general policy considerations relevant to cases bearing a factual similarity to one another.” Comm. of Cent. Am. Refugees v. I.N.S., 795 F.2d 1434, 1438 (9th Cir.), amended, 807 F.2d 769 (9th Cir. 1986).
Defendants claim “[t]he Vexatious Litigant Report and Recommendation fails to consider how the court's decision in Foster and subsequent declaration of Plaintiff Kobayashi as a vexatious litigant affects Mr. Kobayashi being declared a vexatious litigant herein.” [Dkt. 280 at 9]. Defendants are incorrect. The Magistrate Judge considered Foster but stated that she “ha[d] not yet found that this lawsuit is frivolous or harassing.” [See Dkt. 279 at 10-12 (citing Brooke v. IA Lodging Santa Clara LLC, No. 19-07558, 2020 U.S. Dist. LEXIS 119897, at *11 (N.D. Cal. July 8, 2020))]. That Foster was uncompelling does not amount to a failure to consider it.
Defendants claim “[t]he Vexatious Litigant Report and Recommendation fails to consider how Plaintiff Kobayashi's prior attempt to defraud the court by committing perjury affects Mr. Kobayashi being declared a vexatious litigant herein.” [Dkt. 280 at 10]. Defendants are incorrect. The Magistrate Judge considered Plaintiff's “Urgent Ex Parte Application” to which Defendants refer, but nevertheless stated she “[wa]s not wholly convinced that such motion was frivolous or harassing.” [Dkt. 279 at 13].
Defendants claim “[t]he Vexatious Litigant Report and Recommendation fails to mention the importance of the Hon. Robert Kwan's dismissal of Plaintiff Kobayashi's bankruptcy Petition filed on behalf of Mrs. Kyoko Nakano, on the ground that Mr. Kobayashi lacked the authority to act on her behalf.” [Dkt. at 10]. Defendants are incorrect. The Magistrate Judge considered the Nakano Bankruptcy but stated that she “ha[d] not yet found that this lawsuit is frivolous or harassing.” See R&R at 11-12 (citing Brooke v. IA Lodging Santa Clara LLC, No. 19-07558, 2020 U.S. Dist. LEXIS 119897, at *11 (N.D. Cal. July 8, 2020)). That the Nakano bankruptcy was uncompelling does not amount to a failure to mention or consider its importance.
Defendants claim “[i]n her analysis, the Magistrate concludes that because the order declaring Plaintiff Kobayashi a vexatious litigant in Yuki Kobayashi v. Jose E. Aleman et al. does not provide the basis for imposing such designation, this Court cannot take it into consideration. This rationale ignores the res judicata effect of the court finding KOBAYASHI to be a vexatious litigant.” [Dkt. 280 at 11] (citing Fed.R.Evid. 201). But Defendants fail to provide any discussion, explanation, or legal support regarding this claimed res judicata effect of the Aleman court finding Plaintiff to be a vexatious litigant. Defendants cite only to Federal Rule of Evidence 201, which is unhelpful. [Dkt. 279 at 11].
Defendants claim “[t]he conclusion in the Magistrate's recommendation that the facts contained in Exhibit D were disputed, is unsupported by the Court's reliance on the cited exhibits at ECF No. 279 at 10:11-20.” [Dkt. 280 at 14]. Defendants are incorrect. “[A] court may take judicial notice of a document without taking judicial notice of reasonably disputed facts contained in the document.” In re Qualcomm Antitrust Litig., 292 F.Supp.3d 948, 964 (N.D. Cal. 2017). Moreover, a court may only take judicial notice of a fact “not subject to reasonable dispute.” Fed.R.Evid. 201. As The Magistrate Judge explained, the facts in Exhibit D are subject to reasonable dispute. [Dkt. 279 at 4]. Indeed, Plaintiff disputes these facts now. [See Dkt. 272 at 5].
Defendants claim “[t]he Vexatious Litigant Report and Recommendation fails to address DEFENDANTS' argument that defending against this action has caused them an unnecessary financial burden.” [Dkt. 280] at 14. Defendants are incorrect. The Magistrate Judge discussed Defendants' claimed financial burden based on Plaintiff's allegedly meritless filings. [Dkt. 279 at 11]. However, Defendants did not specify the allegedly meritless filings and identified only one example of an allegedly frivolous or harassing filing, which the Magistrate Judge did not find frivolous or harassing. [Dkt. 279 at 13]. That Defendants' argument about allegedly unnecessary financial burden was uncompelling does not equate to a failure to address it.
Defendants claim “the Vexatious Litigant Report and Recommendation fails to recognize the severity of the fraud perpetrated by Plaintiff Kobayashi on this Court.” [Dkt. 280 at 15]. Defendants are incorrect. The Magistrate Judge considered Plaintiff's “Urgent Ex Parte Application” to which Defendants refer, but nevertheless stated she “[wa]s not wholly convinced that such motion was frivolous or harassing.” [Dkt. 279 at 13]. That Defendants' argument regarding the severity of Plaintiff's Urgent Ex Parte Application was uncompelling does not equate to a failure to recognize it.
Defendants claim “[t]he Magistrate has clearly failed to consider the application of each subsection of CCP § 391, in determining whether Plaintiff is a Vexatious Litigant.” [Dkt. 280 at 18]. Defendants further claim they “did not themselves limit the applicability of CCP §§ 391-391.8 to the third De Long factor, but only did so in response to the Court's Order.” [Dkt. 280 at 17 n.4]. Defendants are incorrect, and their objection is misplaced.
The fault and failure to consider CCP § 391 and apply it to every De Long factor belong to Defendants, not the Magistrate Judge. In Defendants' initial Motion to Declare Plaintiff Yuki Kobayashi a Vexatious Litigant [Dkt. 230], Defendants cited only to CCP §§ 391-391.8 and formatted in bold only the third subsection. [Dkt. 230 at 17]. Defendants provided no discussion, explanation, or analysis as to which, if any, De Long factors Defendants believed CCP §§ 391391.8 applied. Id. In Defendants' Reply brief, they further narrowed their citation to CCP §§ 391-391.8 to include only subsection 3, again with no discussion, explanation, or analysis as to which, if any, De Long factors Defendants believed CCP §§ 391-391.8 applied. [Dkt. 254 at 5]. The Magistrate Judge then requested additional information to rule on Defendants' motion, “[g]iven the significance of a determination that a party is a vexatious litigant.” [Dkt. 269 at 1]. Specifically, the Magistrate Judge ordered Defendants to “(a) Provide arguments as to each of the De Long factors, with supporting evidence and pincites to such evidence,” and “(c) To the extent that Defendants rely on any of the four prongs of California Code of Civil Procedure section 391(b)'s definition of ‘vexatious litigant' to satisfy the third De Long factor, provide all arguments, with supporting evidence and pincites to such evidence, supporting a finding under that specific prong.” [Dkt. 269 at 2] (emphasis added).
Defendants thus had ample opportunity, including an opportunity for supplemental briefing, to provide arguments regarding each of the De Long factors, including any arguments as to the application of CCP § 391. The failure, therefore, to consider and apply CCP § 391 to the De Long factors is Defendants' fault, not the Court's. Additionally, Local Rule 83-8.4 allows but does not mandate the Court to consider the California Vexatious Litigants statute; no failure of the Court exists here.
IT THEREFORE IS ORDERED that:
1. The Report and Recommendation of the Magistrate Judge is ACCEPTED;
2. Defendants' amended request for judicial notice, as set forth in their Supplemental Briefing to the Motion (Dkt. 270), is GRANTED IN PART AND DENIED IN PART as follows:
a. GRANTED, but only as to undisputed facts, as to: Exhibit A (Kobayashi v. Foster, No. B181743, 2006 WL 1704003 (June 22, 2006)); Exhibit B (Kobayashi v. Superior Court, 175 Cal.App.4th 536 (2009)); Exhibit C (In re Kiyoko Nakano, No. 2:19-bk-11179-RK, 2019 WL 2896199 (Bankr. C.D. Cal. June 26, 2019)); Exhibit E (court docket of Kobayashi v. Aleman, No. BC170895 (L.A. Super. Ct.); and Exhibit F (Vexatious Litigant List prepared and maintained by the Judicial Branch of the California Courts); and
b. DENIED as to Exhibit D (Appellees' Answering and Joinder Brief filed in Kobayashi v. Coudert Bros., No. 99-55275, 1999 WL 33629461 (9th Cir. Oct. 18, 1999)).
c. Plaintiff's objections to Defendants' requests for judicial notice are OVERRULED.
3. Plaintiff's request for judicial notice of the Ninth Circuit order amending its previous ruling in Coudert is GRANTED.
4. Defendants' Motion is DENIED without prejudice.
5. Plaintiff's requests for sanctions and to strike the Motion are DENIED.