Motion to Declare Vexatious Litigant in RAYMOND VINCENT DIGIACOMO JR VS. CITY AND COUNTY OF SAN FRANCISCO ET AL| Trellis.Law

On January 10, 2020 a Motion-Secondary was filed involving a dispute between Digiacomo Jr, Raymond Vincent, and City And County Of San Francisco, Does 1 Through 100, Inclusive, Gerull, Linda, for PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED in the District Court of San Francisco County.

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1 DAVID CHIU, State Bar #189542
City Attorney
2 MEREDITH B. OSBORN, State Bar #250467 ELECTRONICALLY
Chief Trial Deputy FILED
3 FRANK M. LA FLEUR, State Bar #213438 Superior Court of California,
County of San Francisco
Deputy City Attorney
4 Fox Plaza 05/12/2023
1390 Market Street, Sixth Floor Clerk of the Court
5 San Francisco, California 94102-5408 BY: CAROL BALISTRERI
Deputy Clerk
Telephone: (415) 554-3826
6 Facsimile: (415) 554-3837
E-Mail: frank.lafleur@sfcityatty.org
7

8 Attorneys for Defendants
CITY AND COUNTY OF SAN FRANCISCO
9 and LINDA GERULL

10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
COUNTY OF SAN FRANCISCO
12
UNLIMITED JURISDICTION
13
RAYMOND VINCENT DiGIACOMO, JR., Case No. CGC-20-582151
14
Plaintiff, DEFENDANTS’ MEMORANDUM OF POINTS
15 AND AUTHORITIES IN SUPPORT OF THEIR
vs. MOTION TO DECLARE PLAINTIFF A
16 VEXATIOUS LITIGANT AND TO REQUIRE
CITY AND COUNTY OF SAN PLAINTIFF TO FURNISH SECURITY
17 FRANCISCO; LINDA GERULL; and DOES
1 through 100, inclusive, Hearing Date: June 9, 2023
18 Time: 9:30 a.m.
Defendants. Place: Dept. 302
19
Date Action Filed: January 10, 2020
20 Trial Date: N/A

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1 TABLE OF CONTENTS

2 TABLE OF AUTHORITIES ...........................................................................................................4
INTRODUCTION ...........................................................................................................................6
3
ARGUMENT ...................................................................................................................................8
4
I. VEXATIOUS LITIGANT DEFINED .....................................................................9
5 A. Litigation Defined ........................................................................................9
6 1. “Finally Determined Adversely” Defined .....................................10
7 II. PLAINTIFF DIGIACOMO’S LITIGATIONS FINALLY DETERMINED
ADVERSLY ..........................................................................................................11
8 A. Raymond Vincent DiGiacomo, Jr. v. Recology, Inc., et al.; San
9 Francisco Superior Court Case No.: CGC-19-581651 .............................11
1. Judgement in Favor of the City & County of San Francisco .........11
10
2. Judgment in Favor of Multiple Entities .........................................11
11
B. Raymond Vincent DiGiacomo, Jr. v. Comcast Corporation, et al.; San
12 Francisco Superior Court Case No.: CGC-20-588592 .............................12
C. Raymond Vincent DiGiacomo, Jr. v. City and County of San Francisco,
13
et al.; San Francisco Superior Court Case No.: CGC-20-582891;
14 California Court of Appeal, 1st Appellate District, Case No.: A162435 ..12
D. Raymond Vincent DiGiacomo, Jr. v. City and County of San Francisco,
15 and Trent Rhorer; San Francisco Superior Court Case No.: CPF-21-
16 517385........................................................................................................13
E. Raymond Vincent DiGiacomo, Jr. v. Comcast Corporation, et al.; U.S.
17 District Court for the Northern District of California Case No.: 3:20-cv-
18 04492-LB ...................................................................................................13
F. Raymond Vincent DiGiacomo, Jr. v. Does 1 to 100, inclusive; San
19 Francisco Superior Court Case No.: CGC-20-585048 ..............................14
20 G. Writ of Mandate to Stay Discovery Hearing in Dept. 302 on April 5,
2022 to be Heard by Judge Ulmer; California Court of Appeal, First
21 Appellate District, Case No.: A164832 .....................................................14
22 IV. PLAINTIFF IS A VEXATIOUS LITIGANT BECAUSE HE REPEATEDLY
FILED UNMERITORIOUS MOTIONS, PLEADINGS, OR OTHER PAPERS,
23 CONDUCTS UNNECESSARY DISCOVERY, OR ENGAGES IN OTHER
TACTICS THAT ARE FRIVILOUS OR SOLELY INTENDED TO CAUSE
24
UNNECESSARY DELAY ....................................................................................16
25 A. Unmeritorious Motion Practice..................................................................16
26 B. Plaintiff’s Tactics Are Both Frivolous And Threatening ...........................18

27 1. Frivolous Tactics ............................................................................18
2. Beyond Frivolous Tactics: Threatening Tactics ...........................18
28
2
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V. PLAINTIFF SHOULD BE ORDERED TO FURNISH SECURITY IN THE
1 INSTANT ACTION ..............................................................................................19
2 CONCLUSION ..............................................................................................................................21
3

28
3
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1 TABLE OF AUTHORITIES
State Cases
2 Bravo v. Ismaj
(2002) 99 Cal.App.4th 211 ..........................................................................................................9
3

4 Childs v. PaineWebber Incorporated
(1994) 29 Cal.App.4th 982 ........................................................................................................10
5
Dakota Payphone, LLC v. Alcaraz
6 (2011) 192 Cal.App.4th 493 ......................................................................................................10
7 Fink v. Shemtov
(2010) 180 Cal.App.4th 1160 ....................................................................................................10
8
First Western Dev. Corp. v. Superior Court of Los Angeles Cty.
9
(1989) 212 Cal.App.3d 860 ...............................................................................................8, 9, 20
10
Golin v. Allenby
11 ((2010) 190 Cal.App.616 ...........................................................................................................18

12 In re Bittaker
(1997) 55 Cal.App.4th 1004 ........................................................................................................9
13
In re R.H.
14
(2009) 170 Cal.App.4th 678 ......................................................................................................10
15
In re Whitaker
16 (1992) 6 Cal.App.4th 54 ............................................................................................................10

17 Leone v. Medical Board
(2000) 22 Cal.4th 660 ................................................................................................................10
18
McColm v. Westwood Park Assn.
19 (1998) 62 Cal.App.4th 1211 ................................................................................................10, 20
20
Ortega v. Sacramento Cnty. Dept. of Health and Human Serv.
21 (2008) 161 Cal.App.4th 713 ......................................................................................................21

22 Taliaferro v. Hoogs
(1965) 237 Cal.App.2d 73 .....................................................................................................8, 20
23
Thompson v. Cnty. of Alameda
24 (1980) 27 Cal.3d 741 .................................................................................................................20
25 Tokerud v. CapitolBank Sacramento
26 (1995) 38 Cal.App.4th 775 ....................................................................................................8, 10

27 Villa v. Cole
(1992) 4 Cal.App.4th 1327 [6 Cal.Rptr.2d 644] ........................................................................11
28
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State Statutes & Codes
1 Code of Civil Procedure § 128.5....................................................................................................16
2 Code of Civil Procedure § 170.3, subd. (d) ...................................................................................10
3
Code of Civil Procedure § 391...................................................................................8, 9, 10, 12, 13
4
Code of Civil Procedure § 391 subd. (b)(2)...................................................................................14
5
Code of Civil Procedure § 391 subd. (b)(3)...............................................................................9, 16
6
Code of Civil Procedure § 391(c) ..................................................................................................20
7
Code of Civil Procedure § 391, subd. (a).......................................................................................10
8
Code of Civil Procedure § 391, subd. (b)(1)..............................................................................9, 10
9
Code of Civil Procedure § 391, subd. (b)(2)....................................................................................9
10

11 Code of Civil Procedure § 391, subd. (d) ........................................................................................9

12 Code of Civil Procedure § 391.1......................................................................................................8

13 Code of Civil Procedure § 391.4....................................................................................................19

14 Code of Civil Procedure § 583.210................................................................................................11
15 Code of Civil Procedure § 583.250................................................................................................11
16 Government Code § 820.2 .......................................................................................................20, 21
17 Federal Statutes
18 28 U.S.C. § 1915(a) .........................................................................................................................6

19 28 U.S.C. § 1915(e)(2)(B) .............................................................................................................13

28
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1 INTRODUCTION

2 Plaintiff Raymond Vincent DiGiacomo, Jr., is a vexatious litigant.

3 In the last four years, he filed one case in the United States District Court for the Northern

4 District of California on July 6, 2020, with the case number 3:20-cv-04492-LB. That case did not

5 survive the screening process mandated by 28 U.S.C. § 1915(a), and Plaintiff voluntarily dismissed the

6 suit. In the same time period, Plaintiff filed the following 18 cases in the San Francisco Superior

7 Court (excluding small claims matters):

8 CASE NUMBER FILING DATE CASE STATUS

9 CGC-19-581651 12/19/2019 Judgment in favor of City and
10 County of San Francisco (“City”),
11 pending as to other parties.
12 CGC-20-582151 01/10/2020 Pending (instant action).
13 CGC-20-582736 02/05/2020 Settled.
14 CGC-20-582891 02/13/2020 Closed following Plaintiff’s
15 unsuccessful appeal against the
16 City. (Court of Appeal Case No.:
17 A162435).
18 CGC-20-584572 05/29/2020 Appeal pending against HealthRight
19 360. (Court of Appeal Case No.:
20 A165037).
21 CGC-20-584604 06/03/2020 Consolidated with CGC-19-581651.
22 CGC-20-585048 06/25/2020 Voluntarily dismissed.
23 CGC-20-588592 12/22/2020 Judgment in favor of City and
24 County of San Francisco (“City”),
25 thereafter consolidated with CGC-
26 19-581651.
27

28
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1 CASE NUMBER FILING DATE CASE STATUS

2 CPF-21-517385 02/17/2021 Voluntarily dismissed as to the City
3 and its employee.
4 CGC-22-597935 01/31/2022 Pending against Shryne Group, Inc.
5 CGC-22-601012 07/29/2022 Stayed pending appeal in CGC-20-
6 584572.
7 CGC-22-602574 10/18/2022 Stayed pending resolution of CGC-
8 19-581651 as to Recology, Inc.
9 CGC-22-602575 10/18/2022 Stayed pending resolution of CGC-
10 19-581651 as to Recology, Inc.
11 CGC-22-602576 10/18/2022 Stayed pending resolution of CGC-
12 19-581651 as to Recology, Inc.
13 CGC-22-602578 10/18/2022 Stayed pending resolution of CGC-
14 19-581651 as to Recology, Inc.
15 CGC-22-602579 10/18/2022 Stayed pending resolution of CGC-
16 19-581651 as to Recology, Inc.
17 CGC-22-603027 11/22/2022 Stayed pending resolution of CGC-
18 19-581651 as to Recology, Inc.
19 CGC-23-604899 03/02/2023 Pending as to the City and its
20 employee, Carla Short.
21 In the last four years, Plaintiff filed 19 different lawsuits. On October 18, 2022, alone, he filed
22 five separate lawsuits -- all of which appear to be duplicates of the allegations contained in Case No.
23 CGC-19-581651, and all of which were stayed by this Court pending resolution of CGC-19-581651.
24 Many of these 19 suits were filed against the City and County of San Francisco (“City”), its
25 employees, and a handful of private entities (including their employees) providing services to the
26 residents of the City. Plaintiff must be stopped.
27

28
7
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1 Excepting one settled case (CGC-20-582736), none of these complaints have been successful

2 and none of the still pending complaints have any chance of prevailing. Most of these complaints are

3 reiterations of previously dismissed complaints and/or currently pending actions. Plaintiff is a

4 vexatious litigant. There is no reasonable probability that he will prevail in the instant action, which is

5 not even his latest meritless lawsuit against the City.

6 Plaintiff should not be allowed to proceed in wasting resources by repeatedly filing meritless

7 lawsuits against the City, private entities, and their respective employees. Further, and as will be

8 demonstrated in the instant motion, Plaintiff has engaged in a pattern and practice of filing meritless

9 lawsuits, meritless motions, engaged in improper discovery tactics, and threatening behavior toward

10 the Court, witnesses, and counsel. This Court should declare Plaintiff a vexatious litigant and put a

11 stop to this waste of resources, and the abuse.

12 The City has concurrently filed a Demurrer to Plaintiff’s second amended complaint in the

13 instant action.

14 ARGUMENT

15 The Code of Civil Procedure contains a section allowing the court to designate certain litigants

16 as "vexatious litigants." A defendant may move the court at any time before final judgment for an

17 order requiring the plaintiff to furnish security upon a showing "that the plaintiff is a vexatious litigant

18 and that there is not a reasonable probability that he will prevail in the litigation against the moving

19 defendant." (Code Civ. Proc., § 391.1; Tokerud v. CapitolBank Sacramento (1995) 38 Cal.App.4th

20 775, 778.) Following designation of a litigant as vexatious, the court may require the vexatious

21 litigant to furnish security to proceed with the action in which the litigant has been declared vexatious,

22 or to initiate subsequent lawsuits against the same or other defendants. The purpose of the vexatious

23 litigant statute is "to deal with the problem caused by the persistent and obsessive litigant who has

24 constantly pending a number of groundless actions . . . ." (First Western Dev. Corp. v. Superior Court

25 of Los Angeles Cty. (1989) 212 Cal.App.3d 860, 867.) A vexatious litigant "causes real detriment to

26 those who have legitimate controversies to be determined and to the taxpayers who must provide

27 courts." (Taliaferro v. Hoogs (1965) 237 Cal.App.2d 73, 74.)

28
8
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1 I. VEXATIOUS LITIGANT DEFINED

2 The Code of Civil Procedure defines "vexatious litigant," in three way that are all applicable to

3 plaintiff. A vexatious litigant is a litigant who:

4 • In the immediately preceding seven-year period has commenced, prosecuted, or maintained
in propria persona at least five litigations other than in small claims court that have been (i)
5 finally determined adversely to that person or (ii) unjustifiably permitted to remain pending
at least two years without having been brought to trial or hearing.
6
(Code Civ. Proc. § 391, subd. (b)(1).)
7
• After a litigation has been finally determined against the person, repeatedly relitigates or
8 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)
9 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
10 the litigation was finally determined.
11 (Id., § 391, subd. (b)(2).)

12 • 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
13 are frivolous or solely intended to cause unnecessary delay.
14 (Id., § 391 subd. (b)(3).)

15 “The vexatious litigant statutes were enacted to require a person found a vexatious litigant to

16 put up security for the reasonable expenses of a defendant who becomes the target of one of these

17 obsessive and persistent litigants whose conduct can cause serious financial results to the unfortunate

18 object of his attack." (First Western Dev. Corp., 212 Cal.App. at p. 867.) The abuse of the system by

19 such individuals “not only wastes court time and resources, but also prejudices other parties waiting

20 their turn before the courts. [Citations.]” (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008.) The

21 statute provides a “means of moderating a vexatious litigant’s tendency to engage in meritless

22 litigation.” (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 221.)

23 Plaintiff meets all three definitions. He should be declared a vexatious litigant and required to

24 furnish security.

25 A. Litigation Defined

26 For purposes of determining if an individual is a vexatious litigant, the term “plaintiff” means

27 the “person who commences, institutes or maintains a litigation or causes it to be commenced,

28 instituted or maintained . . . .” (Civ. Proc., § 391, subd. (d).) The term “litigation” means “any civil
9
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1 action or proceeding, commenced, maintained or pending in any state of federal court.” (Civ. Proc., §

2 391, subd. (a).) A litigation includes an appeal or civil writ proceeding filed in an appellate court.

3 (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216; In re R.H. (2009) 170

4 Cal.App.4th 678, 691-692.)

5 1. “Finally Determined Adversely” Defined

6 In order to find an individual a vexatious litigant, it is required that in the preceding seven-year

7 period the individual has had five litigations finally determined adversely. (Civ. Proc., § 391, subd.

8 (b)(1).) A particular litigation is finally determined when avenues for direct review (e.g. appeal) have

9 been exhausted or the time for appeal as expired. (Childs v. PaineWebber Incorporated (1994) 29

10 Cal.App.4th 982, 993-994; see Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1172. This concept is

11 also true in the context of a judgment for one party in a case involving multiple parties. “[I]t has been

12 the long settled rule that in a case involving multiple parties, a judgment is final . . . when it leaves no

13 issues to be determined as to one party.” (Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th

14 493, 506.)

15 “Finally determined adversely” also includes circumstances were a writ petition is the only

16 authorized mode of appellate review. (Leone v. Medical Board (2000) 22 Cal.4th 660, 670.) Where a

17 writ petition is the exclusive means of obtaining appellate review, “an appellate court must judge the

18 petition on its procedural and substantive merits, and a summary denial of the petition is necessarily on

19 the merits. [Citations.] An appellate court that summarily denies a writ petition for lack of substantive

20 merit or for procedural defect hereby fulfills its duty to exercise the appellate jurisdiction vested in it

21 by the state Constitution’s appellate jurisdiction.” (Id. at 670.) In Fink v. Shemtov, the appellate court

22 expressly found that a ruling to disqualify a judge under section 170.3, subdivision (d) of the Code of

23 Civil Procedure constitute a litigation where a writ petition is the only authorized mode of appellate

24 review under the Leone analysis. (Fink, 180 Cal.App.4th at 1172-1173.)

25 A litigation is also finally determined adversely in circumstances where the plaintiff

26 voluntarily dismisses the lawsuit. (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775,

27 779; In re Whitaker (1992) 6 Cal.App.4th 54, 56.) “An action which is ultimately dismissed by the

28 plaintiff, with or without prejudice, is nevertheless a burden on the target of the litigation and the
10
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1 judicial system, albeit less of a burden than if the matter had proceeded to trial. A party who

2 repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows

3 the actions through to completion. The difference is one of degree, not kind.” (Tokerud, 38

4 Cal.App.4th at 779.) In the comparable context of a malicious prosecution action, a voluntary,

5 unilateral dismissal of the underlying dispute is generally considered a termination in favor of the

6 defendant. (Villa v. Cole (1992) 4 Cal.App.4th 1327, 1335 [6 Cal.Rptr.2d 644].)” (Id.)

7 II. PLAINTIFF DIGIACOMO’S LITIGATIONS FINALLY DETERMINED ADVERSLY

8 A. Raymond Vincent DiGiacomo, Jr. v. Recology, Inc., et al.; San Francisco Superior
Court Case No.: CGC-19-581651
9

10 1. Judgement in Favor of the City & County of San Francisco

11 The operative complaint in this litigation is a Third Amended Complaint filed on February 8,

12 2021. (RJN Exhibit B). The City and County of San Francisco (“City”) was named as a party along

13 with several private entities. On June 4, 2021, the City filed a successful motion for judgment on the

14 pleadings. (RJN Exhibit C). On June 30, 2021, the Court issued an order granting the City’s motion

15 for judgment on the pleadings. (RJN Exhibit D). The notice of entry of the order was filed on July 15,

16 2021. (RJN Exhibit E.) Judgment was entered on December 22, 2021. (RJN Exhibit F.) The last day

17 for plaintiff to file a notice of appeal was February 21, 2022. No notice of appeal was filed.

18 (Declaration of Frank M. La Fleur, filed herewith, at ¶ 2.)

19 2. Judgment in Favor of Multiple Entities

20 The operative complaint in this litigation is a Third Amended Complaint filed on February 8,

21 2021. (RJN Exhibit B). The initial complaint was filed on December 18, 2019, and named Recology

22 Golden Gate (erroneously sued as ‘Golden Gate Disposal and Recycling Company’), Recology San

23 Francisco, Inc., Recology Service Center, Inc., and Recology Waste Solutions, Inc. (hereinafter

24 collectively referred to as the “Golden Gate Entities”). (RJN Exhibit DD). On January 19, 2023,

25 Plaintiff filed proofs of service as to the Golden Gate Entities. On February 17, 2023, the Golden Gate

26 Entities filed a successful motion dismiss pursuant Code of Civil Procedure Section 583.210 and

27 583.250. Judgment of dismissal after order granting motion to dismiss pursuant to Code of Civil

28 Procedure sections 583.210 and 583.250 was entered on March 17, 2023. (RJN Exhibit CC.) The last
11
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1 day for plaintiff to file a notice of appeal was May 16, 2023. No notice of appeal has been filed. (La

2 Fleur Decl. ¶ 3.)

3 Based on the legal authority outlined above, as to the City and the Golden Gate Entities these

4 litigations were finally determined adversely to Plaintiff. Therefore, this lawsuit counts as two losses

5 for purposes of the vexatious litigant statute. There are two judgments against Plaintiff and his time to

6 appeal each has passed.

7 B. Raymond Vincent DiGiacomo, Jr. v. Comcast Corporation, et al.; San Francisco
Superior Court Case No.: CGC-20-588592
8

9 The first amended complaint in this litigation was filed March 22, 2021, and the City was

10 named as a defendant along with Comcast Corporation. (RJN Exhibit G.) On April 23, 2021, the City

11 filed a demurrer to the first amended complaint. (RJN Exhibit H.) The City successfully demurred,

12 and the notice of entry of order was filed on May 28, 2021 – the order denied Plaintiff the right to

13 amend. (RJN Exhibit I.) The last day to appeal said order was July 27, 2021. No notice of appeal

14 was filed. (La Fleur Decl. ¶ 4.)

15 It should be noted that on July 23, 2021, the Court ordered this action consolidated with action

16 CGC-19-581651 and others. (RJN Exhibit J.) The order granting the City’s demurrer pre-dates the

17 order of consolidation, and as to the City this case, CGC-20-588592, is a separate litigation as that

18 term is defined by Code of Civil Procedure section 391.

19 Based on the legal authority outlined above, this litigation was finally determined adversely to

20 Plaintiff. Therefore, this lawsuit counts as a loss for purposes of the vexatious litigant statute.

21 C. Raymond Vincent DiGiacomo, Jr. v. City and County of San Francisco, et al.; San
Francisco Superior Court Case No.: CGC-20-582891; California Court of Appeal,
22 1st Appellate District, Case No.: A162435

23 The complaint in this litigation was filed on February 13, 2020. (RJN Exhibit K.) On August

24 4, 2020, the City filed a demurrer. (RJN Exhibit L.) The notice of entry of order/notice of ruling

25 sustaining the City’s demurrer, without leave to amend, was filed on February 8, 2021. (RJN Exhibit

26 M.) On April 9, 2021, Plaintiff filed a notice of appeal. (RJN Exhibit N.) The Court of Appeal issued

27 a signed, unpublished, opinion affirming the judgment of the lower court on August 8, 2022. The

28 Remittitur was filed with this Court on November 9, 2022 and deemed the “[c]ase complete.” (RJN
12
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1 Exhibit ¶ O.) The last day for Plaintiff to appeal the Court of Appeal’s decision was November 21,

2 2022. (La Fleur Decl. ¶ 5.)

3 Based on the legal authority outlined above, this litigation was finally determined adversely to

4 Plaintiff. Therefore, this lawsuit counts as a loss for purposes of the vexatious litigant statute.

5 D. Raymond Vincent DiGiacomo, Jr. v. City and County of San Francisco, and Trent
Rhorer; San Francisco Superior Court Case No.: CPF-21-517385
6

7 The petition for administrative mandamus and complaint for declaratory and injunctive relief

8 was filed on February 17, 2021. (RJN Exhibit P.) Trent Rhorer is San Francisco Human Services

9 Agency’s Executive Director and an employee of the City. (La Fleur Decl. ¶ 6.) On October 19,

10 2022, Plaintiff voluntarily dismissed this litigation. (RJN Exhibit Q.)

11 Based on the legal authority outlined above, this litigation was finally determined adversely to

12 Plaintiff.

13 E. Raymond Vincent DiGiacomo, Jr. v. Comcast Corporation, et al.; U.S. District
Court for the Northern District of California Case No.: 3:20-cv-04492-LB
14
The complaint in this litigation, naming the City and Comcast Corporation as defendants, was
15
filed on July 6, 2020 (ECF #1). (RJN Exhibit R.) On July 24, 2020, the court issued a mandatory
16
screening order (ECF #8) pursuant to 28 U.S.C. § 1915(e)(2)(B). (RJN Exhibit S.) The court found
17
that Plaintiff stated no federal claim, and that the court lacked federal-question jurisdiction to reach the
18
state claims. (RJN Exhibit S.) Plaintiff was given leave to amend, or he could voluntarily dismiss.
19
(RJN Exhibit S.) On August 3, 2020, Plaintiff filed a notice of voluntary dismissal (ECF #10). (RJN
20
Exhibit T.)
21
Based on the legal authority outlined above, this litigation was finally determined adversely to
22
Plaintiff. Therefore, this lawsuit counts as a loss for purposes of the vexatious litigant statute.
23
The preceding five cases, and six losses, are enough to meet the standard for deeming plaintiff
24
a vexatious litigant under Code of Civil Procedure section 391. However, in an abundance of caution,
25
the City will address two more cases finally determined adversely to Plaintiff.
26

28
13
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1 F. Raymond Vincent DiGiacomo, Jr. v. Does 1 to 100, inclusive; San Francisco
Superior Court Case No.: CGC-20-585048
2

3 The complaint in this litigation was filed on June 25, 2020. (RJN Exhibit U.) On July 11,

4 2022, a voluntary dismissal of the entire action was filed. (RJN Exhibit V.)

5 Based on the legal authority outlined above, this litigation was finally determined adversely to

6 Plaintiff. Therefore, this lawsuit counts as a loss for purposes of the vexatious litigant statute.

7 This case is demonstrative of Plaintiff’s abuse of the judicial system in that he named no

8 defendants, only ‘DOES’, but he allowed this meritless case to sit on this Court’s docket for more than

9 two years. Surely there is a better use for the Court’s resources.
G. Writ of Mandate to Stay Discovery Hearing in Dept. 302 on April 5, 2022 to be Heard
10 by Judge Ulmer; California Court of Appeal, First Appellate District, Case No.:
A164832
11

12 This extraordinary writ to disqualify the Honorable Richard Ulmer of the San Francisco

13 Superior Court was filed on March 28, 2022 with the California Court of Appeal, First Appellate

14 District. (RJN at ¶ 3.) On April 1, 2022, Justices Pollack, Streeter, and Brown summarily denied the

15 writ. (RJN at ¶ 3.)

16 Based on the legal authority outlined above, this litigation was finally determined adversely to

17 Plaintiff.

18 The Court has been presented with seven litigations commenced in the last four years that have

19 been finally determined adversely to Plaintiff Raymond Vincent DiGiacomo, Jr. These cases, alone,

20 are a sufficient basis for the Court to grant the instant motion finding said plaintiff a vexatious litigant

21 and to order him to furnish security in the instant action.

22 III. PLAINTIFF IS A VEXATIOUS LITIGANT BECAUSE HE REPEATEDLY FILES
UNMERITORIOUS PLEADINGS AND REPEATEDLY RELITIGATES AND
23 ATTEMPTS TO RELITIGATE, IN PROPRIA PERSON, CAUSES OF ACTION THAT
HAVE ALREADY BEEN CONCLUDED.
24

25 Under Code of Civil Procedure section 391(b)(2), an individual may deemed a vexatious

26 litigant if they repeatedly relitigate or attempt to relitigate (1) the validity of the determination against

27 the same defendant as to whom the litigation was finally determined, or (2) the cause of action, claim,

28
14
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1 controversy, or any of the issues of law or fact, determined or concluded by the final determination

2 against the same defendant to whom the litigation was finally determined.

3 Here, Plaintiff has repeatedly threatened to “rejoin” the City in case CGC-19-581651 (“Case

4 581651”). (La Fleur Decl. ¶ 7, Exhibits A and B.) Further, as to the City, Plaintiff attempted to

5 relitigate issues of law and fact related to Case 581651 when he subpoenaed for deposition the

6 President of the San Francisco Board of Supervisors, Aaron Peskin (RJN Exhibit W), and the Interim

7 Director of Public Works, Carla Short (RJN Exhibit X) in an effort to undo the City’s successful

8 motion for judgment on the pleadings. Supervisor Peskin and Director Short successfully filed

9 motions for a protective order to prevent their respective depositions. (RJN Exhibits Y and Z.)

10 Despite the successful motions for a protective order, Plaintiff has demanded their depositions. (La

11 Fleur Decl. ¶¶ 8 and 9, Exhibits C and D.) All of these efforts were made after Case 581651 was

12 finally determined adversely and in favor of the City. Of course, there is also the issue of judicial

13 resources that had to be expended dealing with these meritless efforts to depose high-ranking

14 government officials in a case where the City has a judgment in its favor.

15 Also, Plaintiff demanded the depositions of a Person Most Knowledge from the Department of

16 Public Works, and members of Supervisor Peskin’s staff. (La Fleur Decl. ¶¶ 10 and 11, Exhibits E

17 and F.) These efforts were also made well after Case 581651 was finally determined adversely to

18 Plaintiff, with the City having a judgment in its favor. It is important to note that reasonable efforts to

19 meet and confer were rebuffed. (La Fleur Decl. ¶ 12.)

20 Another example of Plaintiff’s vexatious nature are the series of identical complaints he filed

21 on October 18, 2022. In each and every complaint he filed on that day, this Court sua sponte stayed

22 the action pending the outcome of Case 581651. With respect to the October 18, 2022 complaints,

23 counsel for the named parties had to file demurrers, motions to strike, and argue the same. All of this

24 at substantial expense in both man-power and money to counsel, the parties, and the Court.

25 It is long past time this Court put a stop to this Plaintiff’s vexatious litigation. These efforts by

26 Plaintiff are evidence of his vexatious nature and abuse of the judicial system. These efforts justify the

27 Court granting the instant motion to deem Plaintiff a vexatious litigant and require him to furnish

28 security.
15
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IV. PLAINTIFF IS A VEXATIOUS LITIGANT BECAUSE HE REPEATEDLY FILED
1 UNMERITORIOUS MOTIONS, PLEADINGS, OR OTHER PAPERS, CONDUCTS
UNNECESSARY DISCOVERY, OR ENGAGES IN OTHER TACTICS THAT ARE
2 FRIVILOUS OR SOLELY INTENDED TO CAUSE UNNECESSARY DELAY
3 A. Unmeritorious Motion Practice

4 Code of Civil Procedure, section 391 at subdivision (b)(3) recognizes a vexatious litigant as an

5 individual, appearing in propria person, who repeatedly filed unmeritorious motions, pleadings, and

6 papers. Case 581651 provides the best example of Plaintiff’s unmeritorious motion practice.

7 It is important to note that this Court issued an order dated October 6, 2022 (RJN Exhibit AA)

8 denying four motions to compel. In said order, the Court expressly stated, “[T]his case has been the

9 subject of excessive motion practice, especially when it comes to discovery.” (RJN Exhibit AA, at

10 page 2, lines 18 to 19.)

11 The following chart is a non-exhaustive list of Plaintiff’s unmeritorious and excessive motion

12 practice in Case 581651:

13 RESOLUTION DATE TYPE OF MOTION RESULT

14 08/24/2020 Motion for sanctions (Code of Civil Procedure Denied
15 section 128.5).
16 09/08/2020 Motion to extend time to respond to special Denied
17 interrogatories.
18 09/18/2020 Motion to strike Recology’s amended answer to Denied
19 the first amended complaint.
20 10/29/2020 Motion to compel Recology to respond to Denied. Plaintiff
21 Requests for Production of Documents (Set One). sanctioned.
22 12/08/2020 Motion for preliminary injunction. Denied.
23 12/31/2020 Motion to strike Recology’s answer to the Second Denied.
24 Amended Complaint.
25 04/05/2022 Motion to Compel Recology to further respond to Denied.
26 Special Interrogatories (Set Two)
27

28
16
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1 RESOLUTION DATE TYPE OF MOTION RESULT

2 04/05/2022 Motion compelling Recology to allow Plaintiff an Denied.
3 inspection of property.
4 08/25/2022 Demurrer to Comcast’s answer to the Second Overruled.
5 Amended Complaint.
6 09/21/2022 Motion to compel Recology to further respond to Denied.
7 Special Interrogatories (Set Six).
8 09/21/2022 Motion to seal portions of Recology’s July 11, Denied.
9 2022 declaration.
10 10/05/2022 Motion to compel further responses from MyDatt Denied.
11 to Demand for Production of Documents (Set
12 Three).
13 10/06/2022 Motion to compel further responses from Comcast Denied (all four
14 to Form Interrogatories (Set One). motions denied in a
15 Motion to compel further responses from single order).
16 Recology to Special Interrogatories (Set Seven).
17 Motion to compel further responses from
18 Recology to Special Interrogatories (Set Nine).
19 Motion to compel further responses from Comcast
20 to Firm Interrogatories (Set Three).
21 04/14/2023 Motion for order compelling Recology to further Denied. Plaintiff
22 respond to interrogatories (set 10). admonished for
23 calling Recology’s
24 counsel a ‘dick’
25 during the hearing.
26 (RJN Exhibit BB).
27

28
17
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1 This non-exhaustive list from but one of Plaintiff’s pending cases satisfies the Vexatious

2 Litigant statute. Filed herewith are declarations from counsel for defendants in other suits brought by

3 Plaintiff. These declarations address Plaintiff’s unnecessary motion practice and frivolous, often

4 abusive, tactics.

5 While the City understands that not every unsuccessful motion is unmeritorious, such does not

6 appear to be the case with respect to Plaintiff. The evidence presented in support of this motion

7 demonstrates that Plaintiff routinely refuses to meet and confer in good faith. This refusal leads to

8 motions ending up in front of the Court that might otherwise have been resolved informally.

9 B. Plaintiff’s Tactics Are Both Frivolous And Threatening

10 1. Frivolous Tactics

11 As detailed in the Declaration of Richard D. McKie, filed concurrently with the instant motion,

12 Plaintiff engaged in a tactic of challenging judicial officers. As stated above, his attempt to disqualify

13 Judge Ulmer failed. He also challenged Judges Pro Tem Steve Stein, Paul Renne, and Bruce

14 Highman. (McKie Decl. at ¶¶ 10 through 13. Plaintiff also submitted a complaint to the State Bar of

15 California against Judge Pro Tem John-Paul Deol following the denial of several motions to compel.

16 (McKie Decl. at ¶ 24.) When Plaintiff received an unfavorable ruling regarding the City’s demurrer in

17 Case No. CGC-20-582891, he reported the judge, the Honorable Stephen M. Pulido, to the

18 Commission of Judicial Performance in an insult-laden letter that attacked Judge Pulido. (RJN Exhibit

19 EE.) In Golin v. Allenby (2010) 190 Cal.App.616, 640, fn. 30), the Court of Appeal for the Sixth

20 District strongly suggests that a court may, on a case-by-case basis, consider challenges to judicial

21 officers a frivolous tactic because of the delay it causes.

22 2. Beyond Frivolous Tactics: Threatening Tactics

23 This Court has issued multiple admonishments to Plaintiff regarding his uncouth and

24 unprofessional behavior. Plaintiff has been furnished with this Court’s guidelines for professional

25 conduct. (La Fleur Decl. ¶ 13, Exhibits G and H.) While the City leaves it to the Court’s discretion to

26 determine if such behavior rises to the level of frivolous, it is undeniable to any reasonable person that

27 threats are substantially more than frivolity. In fact, this very Court recognized the threatening nature

28
18
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1 of Plaintiff’s tactics in the Order it iss

Case Info

Judge

GARRETT L. WONG Track Judge’s New Case

Case No.

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Document Filed Date

May 12, 2023

Case Filing Date

January 10, 2020

County

Parties

CITY AND COUNTY OF SAN FRANCISCO Defendant
DIGIACOMO JR, RAYMOND VINCENT Plaintiff
DOES 1 THROUGH 100, INCLUSIVE Defendant
GERULL, LINDA Defendant
LAFLEUR, FRANK M. Attorney for the Defendant
Pro Per Attorney for the Plaintiff
Thomas Lakritz Attorney
Timothy Fama Attorney
David Chiu Attorneys for Defendants
Meredith Osborn Attorneys for Defendants
Mark Hagopian Attorneys for Defendants
Richard McKie Attorneys for Defendants
Paul Bigley Attorney
Craig Rolfe Attorney
Mark Wilson Attorneys for Defendants
Gregory Sargenti Attorneys for Defendants
Peter Martin Attorneys for Defendants
Darin Flagg Attorneys for Defendants

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Motion-Secondary: RAYMOND VINCENT DIGIACOMO JR VS. CITY AND COUNTY OF SAN FRANCISCO ET AL

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