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James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 Plaintiff in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION

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James Alan Bush, Plaintiff, v. Stuart Glasgow, et al., Defendants.

A D

TO STUART GLASGOW, DEFENDANT, AND TO REBECCA MOON, HIS ATTORNEY OF RECORD: NOTICE IS HEREBY GIVEN that, on [date], at [time], or as soon thereafter as the matter may be heard, in Department [number] of this Court, located at 191 North First Street, in San Jose, Plaintiff, James Alan Bush, will, and hereby does, move for an order dissolving the order declaring the plaintiff a vexatious litigant and imposing prefiling restrictions, which was granted on October 2nd, 2008 [see Exhibit A]. The motion will be made on the grounds that it would serve the ends of justice to reverse the prefiling order in light of the Courts failure to correctly establish this NOTICE PAGE 1 OF 2 1-08-CV-119008

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Case No. 1-08-CV-119008

NOTICE OF MOTION AND MOTION FOR ORDER DISSOLVING PERMANENT INJUNCTION, SUPPORTING DECLARATION OF PLAINTIFF, AND SUPPORTING MEMORANDUM [Code Civ. Proc. 533]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

determination, as is shown by the subsequent denial of an identical Motion to Declare Plaintiff a Vexatious Litigant by the United States District Court on August 23rd, 2010 [see Exhibit B], which contains the same arguments, and exhibits supporting those arguments, as the motion brought in the Superior Court [compare Exhibits C and D]. The motion will be based on this notice of motion, on the declaration of the plaintiff, on the exhibits attached hereto, and on the memorandum of points and authorities served and filed in this proceeding, on the papers and records on file, and on such oral and documentary evidence as may be presented at the hearing of the motion. Dated: November 28th, 2011

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NOTICE PAGE 2 OF 2

By: X

James Alan Bush Plaintiff in pro per // // // // // // // // // // // // // // 1-08-CV-119008

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 Plaintiff in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION

James Alan Bush, Plaintiff, v. Stuart Glasgow, et al., Defendants.

A D R

I, James Alan Bush, declare: 1. I am the plaintiff in the within action. 2. On October 2nd, 2008, the court granted an injunction requiring the plaintiff to obtain leave of the presiding judge prior to filing new litigation in propria persona and to post security for the defendants reasonable expenses pursuant to Code Civ. Proc. 391, 391.1, 391.3 [see Exhibit A]. 3. Since that time, and, in particular, on November 23rd, 2009, a Motion to Declare Plaintiff a Vexatious Litigant was filed in another matter DECLARATION PAGE 1 OF 3 1-08-CV-119008

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Case No. 1-08-CV-119008

DECLARATION OF PLAINTIFF IN SUPPORT OF MOTION FOR ORDER DISSOLVING PERMANENT INJUNCTION [Code Civ. Proc. 533]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

then pending in the United States District Court, specifically, under docket number 09-CV-01022 (PR) RS [Bush v. Winslow, et al.], which was identical to the motion brought in the Superior Court, in that only the case name and parties were changed in the caption, while the argument and supporting exhibits remained the same [compare Exhibits B and C]; however, on August 23rd, 2010, the Honorable Judge Richard Seeborg, Judge, U.S. District Court, denied the motion on the grounds that there is not sufficient evidence that plaintiffs suits were patently without merit. ...[T]he record reflects that many of the actions were dismissed for failure to prosecute, not, as far as the Court can tell, because the claims were frivolous or filed with the intention of

claims and in the defendants served to escape the label of frivolous or harassing [see Exhibit D, Order Denying Defendants Motion to Declare Plaintiff a Vexatious Litigant].

the actions pending at that time have been adversely determined against the plaintiff; rather, two cases were adjudicated in favor of the plaintiff, and the remaining were already consolidated into an aggregate of claims, which was filed in the United States District Court under docket number C 08-01354 PJH [James Alan Bush v. Sunnyvale Department of Public Safety, et al.]. 5. [evidence proferred doesnt meet criteria of statutes] 6. [requested relief and grounds therefor] 7. change in facts indicating a mending of his ways or conduct to support a reversal of the original determination [behavior of the plaintiff DECLARATION PAGE 2 OF 3 1-08-CV-119008

Court the plaintiff has not filed any other actions, and none of

4. Since the time of his designation as a vexatious litigant by this

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harassing. The actions are varied enough in both the nature of the

1 2 3 4 5 6 7 8 9 10 11

changed..., in that no further actions were filed] Dated: November 28th, 2011 By: X James Alan Bush Plaintiff in pro per

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 DECLARATION

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PAGE 3 OF 3

A
1-08-CV-119008

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1 2 3 4 5 6 7 8 9 10 11

James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 Plaintiff in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION

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James Alan Bush, Plaintiff, v. Stuart Glasgow, et al., Defendants.

A D R

Plaintiff proffers the following argument and points of law in support of his motion to dissolve the order designating him a vexatious litigant: I. THE COURT MAY DISSOLVE AN INJUNCTION ON A SHOWING THAT THE ENDS OF JUSTICE WOULD BE SERVED. IN THIS CASE, THE COURT FAILED TO CORRECTLY ESTABLISH ITS DETERMINATION OF THE PLAINTIFF AS A VEXATIOUS LITIGANT. THEREFORE, UNDER THE CIRCUMSTANCES, THE ENDS OF JUSTICE WOULD BE BEST SERVED BY DISSOLVING THE INJUNCTION IN THIS ACTION Dissolution of Injunction. In any action, the court may on notice dissolve an injunction upon a showing that the ends of justice would MEMORANDA PAGE 1 OF 9 1-08-CV-119008

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR DISSOLUTION OF INJUNCTION [Code Civ. Proc. 533]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 V. IV. III. II.

be served by the dissolution of the injunction [Code. Civ. Proc. 533]. A PREFILING ORDER IS AN INJUNCTION THAT CAN BE REVERSED UNDER CODE OF CIVIL PROCEDURE 533 The prefiling order authorized by Code Civ. Proc. 391.7 may be viewed as a form of injunction reversible under Code Civ. Proc. 533 [PBA, LLC, v. KPOD, Ltd. (2003) 112 Cal.App. 4th 965, 978, 5 Cal.Rptr. 3d 532]. CASE LAW ESTABLISHES THAT A MOTION TO DISSOLVE A PREFILING ORDER IS PROPERLY BROUGHT IN THE ISSUING COURT The court issuing the order is best situated to receive evidence and

including on reconsideration or appeal [Bravo v. Ismaj (2002) 99 Cal. App.4th at p. 219, 120 Cal.Rptr.2d 879].

CASE LAW ESTABLISHES THAT THE COURT MUST CONDUCT A SUBSTANTIVE

If a plaintiff contends that the order declaring him a vexatious litigant was improper and requests a review of the order, the issuing court must review the order for substantial evidence [Bravo, supra, 99 Cal.App.4th 211, 219, 120 Cal.Rptr.2d 879 (Bravo) and, ]; although the reviewing court is required to presume the order declaring a litigant vexatious is correct, it must imply findings necessary to support that designation, and is required to reverse the order where there is insufficient evidence to do so [Roston v. Edwards (1982) 127 Cal.App.3d 842, 848, 179 Cal.Rptr. 830]. AFTER CONDUCTING A COMPREHENSIVE REVIEW OF SAME ARGUMENT AND SAME PAGE 2 OF 9 1-08-CV-119008

MEMORANDA

VEXATIOUS LITIGANT WHEN EVALUATING ITS PREVIOUS RULING

REVIEW OF THE EVIDENCE SUPPORTING ITS DESIGNATION OF PLAINTIFF AS A

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hold hearings on the question of whether a litigant is vexatious,

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 III.

EVIDENCE PROFFERED BY THE DEFENDANT, A DISTRICT COURT DENIED AN IDENTICAL MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT On August 23rd, 2010, the Honorable Judge Richard Seeborg, Judge, U.S. District Court, issued an order denying a motion to declare plaintiff a vexatious litigant, which was identical to the same motion brought by the defendant, word-for-word [compare Exhibits A and B], on the grounds that there is not sufficient evidence that plaintiffs suits were patently without merit. ...[T]he record reflects that many of the actions were dismissed for failure to prosecute, not, as far as the Court can tell, because the claims were frivolous or filed with the intention of harassing. The actions are varied

to escape the label of frivolous or harassing [see Exhibit B, Order Denying Defendants Motion to Declare Plaintiff a Vexatious Litigant].

CODE OF CIVIL PROCEDURE 391(b) SUPPORTING A VEXATIOUS LITIGANT DESIGNATION The Court designated the plaintiff a vexatious litigant primarily on the mere showing by the defendant that the plaintiff filed a large number of suits; however, evidence that a litigant is a frequent plaintiff alone is insufficient to support a vexatious litigant designation [Roston, supra, 127 Cal.App.3d at 847, 179 Cal.Rptr. 830]. At the time the plaintiff was designated a vexatious litigant, there was no evidence that any litigation was resolved against him, nor that he continued to attempt to relitigate the issues against the MEMORANDA PAGE 3 OF 9 1-08-CV-119008

BY THE DEFENDANT THAT FAILS TO MEET ANY OF THE CRITERIA LISTED UNDER

THE COURT INCORRECTLY BASED ITS DETERMINATION ON EVIDENCE SUBMITTED

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enough in both the nature of the claims and in the defendants served

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 IV.

same defendants, as required by subdivision (b) (2). In addition, both the Court and the defendant failed to acknowledge that, in spite of the number of suits filed by the plaintiff, each of them were directed against different defendants and for differing claims, and that none of them progressed beyond the initial filing of the complaint. Consequently, there was no evidence of a persistent or obsessive litigiousness by the plaintiff, or that the suits brought by the plaintiff had caused any defendant serious financial hardship or that the plaintiffs actions placed an unreasonable burden on the Court. THE COURTS DESIGNATION OF THE PLAINTIFF AS A VEXATIOUS LITIGANT IS

THE EVIDENCE AVAILABLE AT THE TIME THE RULING WAS ISSUED [A] person is not a vexatious litigant unless a court has found that he comes within the definitions of [Code of Civil Procedure] section

under one of the four. A.

THE EVIDENCE PROVIDED BY THE DEFENDANT DOES NOT SHOW THAT AT LEAST FIVE CASES WERE DETERMINED ADVERSELY AGAINST THE PLAINTIFF WITHIN THE MEANING OF CODE OF CIVIL PROCEDURE 391(b) (1) The defendants failed to show that at least five case were determined adversely to the plaintiff or that any case has been unjustifiably permitted to remain pending for at least two years without having been brought to trial or hearing, as required to obtain an order designating him as a vexatious

MEMORANDA

vexatious litigant, and a court must find that the litigant falls

391. (Ibid.) That section sets forth four separate definitions of

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INCONSISTENT WITH THE SPECIFIC REQUIREMENTS OF THE STATUTE BASED UPON

1-08-CV-119008

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MEMORANDA B.

litigant per Code Civ. Proc. 391(b) (1). And, although even a voluntary dismissal without prejudice is considered an adverse determination for purposes of Code Civ. Proc. 391(b) (1), the defendant failed to show, and the record does not establish, that any of the dismissed actions were a burden, financial or otherwise, on the target of the litigation or on the judicial system, in that (1) the defendants varied in each suit (in other words, the plaintiff is not involved in litigation with just the defendant); (2) none of the defendants were yet served summons or did any defendant file an answer to the plaintiffs complaint in any cases prior to the filing of the aggregate of

not expended by any hearings or the like prior to the filing of the aggregate of claims in the district court. Therefore, the purpose of the vexatious litigant statutes in this regard,

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, does not apply to the claims filed by the plaintiff [Wolfe v. Strankman (9th Cir.2004) 392 F.3d 358; People v. Harrison (2001) 92 Cal.App.4th 780, 112 Cal.Rptr.2d 91]. THE COURT ERRONEOUSLY CONSIDERED FEDERAL CASES IN ITS DESIGNATION OF PLAINTIFF AS A VEXATIOUS LITIGANT, BUT CASE LAW ESTABLISHES THAT FEDERAL CASES ARE NOT CONSIDERED LITIGATION WITHIN THE MEANING OF INTENDED BY CODE CIV. PROC. 391(a) PAGE 5 OF 9 1-08-CV-119008

and obsessive litigant who constantly has pending a number of

which is to address the problem created by the persistent

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claims in the U.S. District Court; and, (3) court resources were

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MEMORANDA

The defendant presented as evidence several federal cases brought by the plaintiff to support its argument that the plaintiff filed the same claim in multiple venues, not only failing to acknowledge that the federal cases were an aggregate of state claims no longer being pursued in state court, but asking the Court to consider this as the type of conduct defining a vexatious litigant. In Roston, supra, 127 Cal.App.3d 844, 845, 848 Cal.Rptr. 830, the Court established that the term litigation as defined in the vexatious litigants statute [Code Civ. Proc. 391(a) does ] not include civil actions or proceedings in federal courts

in California state courts; rather, the ztatute reads, court of this state, not courts in this state. This distinction is made, for example, in California statute Evid. Code 452,

of this state or (2) any court of record of the Unigted States or of any state of the United States. Consequently, the Court in Roston held that the phrase court of this state in section 391, subdivision (a), refers only to California state courts, and not to federal courts sitting in California, and the litigation finally determined in section 391, subdivision (b) (2), must have been a civil action or proceeding in a California state court. Therefore, the evidence proferred by the defendant that consists of federal cases must be discounted, and any decision PAGE 6 OF 9 1-08-CV-119008

judicial notice may be taken of (d) Records of (1) any court

which authorizes the taking of judicial notice, provides that

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located in California, but only to civil actions or proceedings

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MEMORANDA C.

based on these cases must be reconsidered. NEITHER THE EVIDENCE NOR THE RECORD SHOWS ANY CASES THAT HAVE BEEN FINALLY DETERMINED OR THAT PLAINTIFF HAS ATTEMPTED TO RELITIGATE ANY CLAIM AS REQUIRED FOR A VEXATIOUS LITIGANT DESIGNATION UNDER CODE CIV. PROC. 391(b) (2) Neither the evidence proffered by the defendant nor the record shows that any claim was judged by any court to be finally determined. In spite of the plaintiffs failure to properly transfer venue and consolidate the claims dismissed for failure to prosecute notwithstanding, the plaintiff filed an aggregate of those in the U.S. District Court under docket number

Wherever claims are still pending, there has not yet been a final determination in those claims [Childs v. PaineWebber Inc. (1994) 29 Cal.App.4th 982, 993, 35 Cal.Rptr.2d 93]; and,

exhausted {First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 864, 261 Cal.Rptr. 116]. Consequently, the plaintiff could not have attempted to relitigate any issue that has been finally determined as required by Code Civ. Proc. 391(b) (2) for a vexatious litigant designation; and, although not applicable in this case, it is established by case law that even when a plaintiff attempts to relitigate a matter that had been finally determined in one court and then files a similar action in another court, he does not repeatedly litigate within the meaning of Code Civ. Proc. 391(b) (2) [Holcomb v. U.S. Bank PAGE 7 OF 9 1-08-CV-119008

391(b) (2) unless all avenues for direct review have been

a judgment is not final within the meaning of Code Civ. Proc.

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C 08-01354 PJH prior to his designation as a vexatious litigant.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MEMORANDA D.

(2005) 129 Cal.App.4th 1494, 1505-1506, 29 Cal.Rptr.3d 578]. NEITHER THE EVIDENCE NOR THE RECORD DEMONSTRATES ANY TACTICS THAT WERE FRIVOLOUS OR SOLELY INTENDED TO CAUSE DELAY PER CODE CIV. PROC. 391(b) (3) The defendant failed to show or allege, and the Court failed to find, that the record reflects any attempt by the plaintiff to repeatedly file unmeritorious motions, pleadings, or other papers, conduct unnecessary discovery, or engage in other tactics that are frivolous or solely intended to cause unnecessary delay, as required for a vexatious litigant designation by Code Civ. Proc. 391(b). While there is no

cases affirming the vexatious litigant designation involve situations where litigants have filed dozens of motions either during the pendency of an action or relating to the same

the special discovery master; six motions challenging judge or his rulings; five motions for sanctions against opponent, opponents attorney, judge and special master; a motion for continuance; and a motion for new trial) In Bravo, the court ]. found that approximately 20 motions constituted repeated because they all arose during the same action and many of the motions were identical to motions previously brought and denied. This is hardly the case in the instant matter, in that

this motion is the first such motion that the plaintiff has filed seeking the Courts reconsideration of a previous decision, and PAGE 8 OF 9 1-08-CV-119008

879 (litigant filed numerous motions contesting appointment of

judgment [Bravo, supra, 99 Cal.App.4th at p. 225, 120 Cal.Rptr.2d

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bright line rule as to what constitutes repeatedly, most

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MEMORANDA

it has yet to be unsuccessful; moreover, instead of rearguing facts the Court has already considered, or arguing that the evidence did not support the issuance of a prefiling order, or disputing the veracity of facts that supported his designation as a vexatious litigant, the plaintiff has proved that neither the law nor the facts available at the time the designation was made support this conclusion. In addition, none of the plaintiffs claims were actually deemed unmeritorious or frivolous types of claims contemplated by the vexatious litigant statute. Not all failed claims can support a vexatious litigant designation. The claims

be described as a flagrant abuse of the system, have no reasonable probability of success, lack reasonable or probable cause or excuse and are clearly meant to abuse the processes

App.4th 43, 55, 61 Cal.Rptr.2d 694.] The claims were dismissed for failure to prosecute immediately following the initial filing of the complaint; no issues were ever adjudicated, and in all but one claim, the defendants failed to file an answer to the complaint. Dated: November 28th, 2011 By: X James Alan Bush Plaintiff in pro per // // PAGE 9 OF 9 1-08-CV-119008

litigants. [See Wolfgram v. Wells Fargo Bank (1997) 53 Cal.

of the courts and to harass the adverse party than other

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must be so devoid of merit and be so frivolous that they can

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