Case 2:19-cv-06591-SSS-MAA Document 286 Filed 08/18/22 Page 1 of 6 Page ID #:4416

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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 YUKI KOBAYASHI, Case No. 2:19-CV-06591-SSS (MAA)

12 Plaintiff, ORDER ACCEPTING FINDINGS

13 AND RECOMMENDATIONS OF v. 14 UNITED STATES MAGISTRATE MORGAN MCMULLIN et al., JUDGE 15 Defendants. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the records on file 18 herein pertaining to the Motion to Declare Plaintiff a Vexatious Litigant (“Motion”) 19 [Dkt. 230] filed by Defendants Morgan McMullin and Yeshia Braverman (together, 20 “Defendants”), the Report and Recommendation of United States Magistrate Judge 21 [Dkt. 279], Defendants’ Objections [Dkt. 280], and Plaintiff Yuki Kobayashi’s 22 (“Plaintiff”) Response [Dkt. 281]. After conducting a de novo review of the 23 portions of the Report and Recommendation to which Objections were directed, the 24 Court concurs with and accepts the findings and conclusions of the Magistrate 25 Judge. 26 Defendants claim “[t]he Vexatious Litigant Report and Recommendation 27 fails to note that the Magistrate has concluded that almost all of the claims against 28 DEFENDANTS fail to state a cause of action.” [Dkt. 280 at 7]. Defendants are Case 2:19-cv-06591-SSS-MAA Document 286 Filed 08/18/22 Page 2 of 6 Page ID #:4417

1 incorrect. The Magistrate Judge did note that “Plaintiff sufficiently pled at least 2 some of his claims.” [Dkt. 179 at 12]. 3 Defendants claim “[t]he Magistrate relies heavily on delaying a finding that 4 Plaintiff Kobayashi is a vexatious litigant by relying on one unpublished district 5 court cases [sic], which has no precedential value,” and that “an unpublished 6 opinion cannot be cited as precedent.” [Dkt. 280 at 8, 17]. However, “[n]either the 7 Ninth Circuit Rules nor the local rules of the [Central] District of California 8 prohibit citation of unreported district court opinions. Indeed, [the Ninth Circuit] 9 has condoned the use of unpublished district court decisions to identify general 10 policy considerations relevant to cases bearing a factual similarity to one another.” 11 Comm. of Cent. Am. Refugees v. I.N.S., 795 F.2d 1434, 1438 (9th Cir.), amended, 12 807 F.2d 769 (9th Cir. 1986). 13 Defendants claim “[t]he Vexatious Litigant Report and Recommendation 14 fails to consider how the court’s decision in Foster and subsequent declaration of 15 Plaintiff Kobayashi as a vexatious litigant affects Mr. Kobayashi being declared a 16 vexatious litigant herein.” [Dkt. 280 at 9]. Defendants are incorrect. The 17 Magistrate Judge considered Foster but stated that she “ha[d] not yet found that this 18 lawsuit is frivolous or harassing.” [See Dkt. 279 at 10–12 (citing Brooke v. IA 19 Lodging Santa Clara LLC, No. 19-07558, 2020 U.S. Dist. LEXIS 119897, at *11 20 (N.D. Cal. July 8, 2020))]. That Foster was uncompelling does not amount to a 21 failure to consider it. 22 Defendants claim “[t]he Vexatious Litigant Report and Recommendation 23 fails to consider how Plaintiff Kobayashi’s prior attempt to defraud the court by 24 committing perjury affects Mr. Kobayashi being declared a vexatious litigant 25 herein.” [Dkt. 280 at 10]. Defendants are incorrect. The Magistrate Judge 26 considered Plaintiff’s “Urgent Ex Parte Application” to which Defendants refer, but 27 nevertheless stated she “[wa]s not wholly convinced that such motion was frivolous 28 2 Case 2:19-cv-06591-SSS-MAA Document 286 Filed 08/18/22 Page 3 of 6 Page ID #:4418

1 or harassing.” [Dkt. 279 at 13]. 2 Defendants claim “[t]he Vexatious Litigant Report and Recommendation 3 fails to mention the importance of the Hon. Robert Kwan’s dismissal of Plaintiff 4 Kobayashi’s bankruptcy Petition filed on behalf of Mrs. Kyoko Nakano, on the 5 ground that Mr. Kobayashi lacked the authority to act on her behalf.” [Dkt. at 10]. 6 Defendants are incorrect. The Magistrate Judge considered the Nakano Bankruptcy 7 but stated that she “ha[d] not yet found that this lawsuit is frivolous or harassing.” 8 See R&R at 11–12 (citing Brooke v. IA Lodging Santa Clara LLC, No. 19-07558, 9 2020 U.S. Dist. LEXIS 119897, at *11 (N.D. Cal. July 8, 2020)). That the Nakano 10 bankruptcy was uncompelling does not amount to a failure to mention or consider 11 its importance. 12 Defendants claim “[i]n her analysis, the Magistrate concludes that because 13 the order declaring Plaintiff Kobayashi a vexatious litigant in Yuki Kobayashi v. 14 Jose E. Aleman et al. does not provide the basis for imposing such designation, this 15 Court cannot take it into consideration. This rationale ignores the res judicata effect 16 of the court finding KOBAYASHI to be a vexatious litigant.” [Dkt. 280 at 11] 17 (citing Fed. R. Evid. 201). But Defendants fail to provide any discussion, 18 explanation, or legal support regarding this claimed res judicata effect of the 19 Aleman court finding Plaintiff to be a vexatious litigant. Defendants cite only to 20 Federal Rule of Evidence 201, which is unhelpful. [Dkt. 279 at 11]. 21 Defendants claim “[t]he conclusion in the Magistrate’s recommendation that 22 the facts contained in Exhibit D were disputed, is unsupported by the Court’s 23 reliance on the cited exhibits at ECF No. 279 at 10:11–20.” [Dkt. 280 at 14]. 24 Defendants are incorrect. “[A] court may take judicial notice of a document 25 without taking judicial notice of reasonably disputed facts contained in the 26 document.” In re Qualcomm Antitrust Litig., 292 F. Supp. 3d 948, 964 (N.D. Cal. 27 2017). Moreover, a court may only take judicial notice of a fact “not subject to 28 reasonable dispute.” Fed. R. Evid. 201. As The Magistrate Judge explained, the 3 Case 2:19-cv-06591-SSS-MAA Document 286 Filed 08/18/22 Page 4 of 6 Page ID #:4419

1 facts in Exhibit D are subject to reasonable dispute. [Dkt. 279 at 4]. Indeed, 2 Plaintiff disputes these facts now. [See Dkt. 272 at 5]. 3 Defendants claim “[t]he Vexatious Litigant Report and Recommendation 4 fails to address DEFENDANTS’ argument that defending against this action has 5 caused them an unnecessary financial burden.” [Dkt. 280] at 14. Defendants are 6 incorrect. The Magistrate Judge discussed Defendants’ claimed financial burden 7 based on Plaintiff’s allegedly meritless filings. [Dkt. 279 at 11]. However, 8 Defendants did not specify the allegedly meritless filings and identified only one 9 example of an allegedly frivolous or harassing filing, which the Magistrate Judge 10 did not find frivolous or harassing. [Dkt. 279 at 13]. That Defendants’ argument 11 about allegedly unnecessary financial burden was uncompelling does not equate to 12 a failure to address it. 13 Defendants claim “the Vexatious Litigant Report and Recommendation fails 14 to recognize the severity of the fraud perpetrated by Plaintiff Kobayashi on this 15 Court.” [Dkt. 280 at 15]. Defendants are incorrect. The Magistrate Judge 16 considered Plaintiff’s “Urgent Ex Parte Application” to which Defendants refer, but 17 nevertheless stated she “[wa]s not wholly convinced that such motion was frivolous 18 or harassing.” [Dkt. 279 at 13]. That Defendants’ argument regarding the severity 19 of Plaintiff’s Urgent Ex Parte Application was uncompelling does not equate to a 20 failure to recognize it. 21 Defendants claim “[t]he Magistrate has clearly failed to consider the 22 application of each subsection of CCP § 391, in determining whether Plaintiff is a 23 Vexatious Litigant.” [Dkt. 280 at 18]. Defendants further claim they “did not 24 themselves limit the applicability of CCP §§ 391–391.8 to the third De Long factor, 25 but only did so in response to the Court’s Order.” [Dkt. 280 at 17 n.4]. Defendants 26 are incorrect, and their objection is misplaced. 27 The fault and failure to consider CCP § 391 and apply it to every De Long 28 factor belong to Defendants, not the Magistrate Judge. In Defendants’ initial 4 Case 2:19-cv-06591-SSS-MAA Document 286 Filed 08/18/22 Page 5 of 6 Page ID #:4420

1 Motion to Declare Plaintiff Yuki Kobayashi a Vexatious Litigant [Dkt. 230], 2 Defendants cited only to CCP §§ 391–391.8 and formatted in bold only the third 3 subsection. [Dkt. 230 at 17]. Defendants provided no discussion, explanation, or 4 analysis as to which, if any, De Long factors Defendants believed CCP §§ 391– 5 391.8 applied. Id. In Defendants’ Reply brief, they further narrowed their citation 6 to CCP §§ 391–391.8 to include only subsection 3, again with no discussion, 7 explanation, or analysis as to which, if any, De Long factors Defendants believed 8 CCP §§ 391–391.8 applied. [Dkt. 254 at 5]. The Magistrate Judge then requested 9 additional information to rule on Defendants’ motion, “[g]iven the significance of a 10 determination that a party is a vexatious litigant.” [Dkt. 269 at 1]. Specifically, the 11 Magistrate Judge ordered Defendants to “(a) Provide arguments as to each of the 12 De Long factors, with supporting evidence and pincites to such evidence,” and “(c) 13 To the extent that Defendants rely on any of the four prongs of California Code of 14 Civil Procedure section 391(b)’s definition of ‘vexatious litigant’ to satisfy the third 15 De Long factor, provide all arguments, with supporting evidence and pincites to 16 such evidence, supporting a finding under that specific prong.” [Dkt. 269 at 2] 17 (emphasis added). 18 Defendants thus had ample opportunity, including an opportunity for 19 supplemental briefing, to provide arguments regarding each of the De Long factors, 20 including any arguments as to the application of CCP § 391. The failure, therefore, 21 to consider and apply CCP § 391 to the De Long factors is Defendants’ fault, not 22 the Court’s. Additionally, Local Rule 83-8.4 allows but does not mandate the Court 23 to consider the California Vexatious Litigants statute; no failure of the Court exists 24 here. 25 IT THEREFORE IS ORDERED that: 26 1. The Report and Recommendation of the Magistrate Judge is 27 ACCEPTED; 28 2. Defendants’ amended request for judicial notice, as set forth in their 5 Case 2:19-cv-06591-SSS-MAA Document 286 Filed 08/18/22 Page6of6 Page ID #:4421

1 Supplemental Briefing to the Motion (Dkt. 270), is GRANTED IN 2 PART AND DENIED IN PART as follows: 3 a. GRANTED, but only as to undisputed facts, as to: Exhibit A 4 (Kobayashi v. Foster, No. B181743, 2006 WL 1704003 (June 5 22, 2006)); Exhibit B (Kobayashi v. Superior Court, 175 Cal. 6 App. 4th 536 (2009)); Exhibit C Un re Kivoko Nakano, No. 7 2:19-bk-11179-RK, 2019 WL 2896199 (Bankr. C.D. Cal. June 8 26, 2019)); Exhibit E (court docket of Kobayashi v. Aleman, No. 9 BC170895 (L.A. Super. Ct.); and Exhibit F (Vexatious Litigant 10 List prepared and maintained by the Judicial Branch of the 11 California Courts); and 12 b. DENIED as to Exhibit D (Appellees’ Answering and Joinder 13 Brief filed in Kobayashi v. Coudert Bros., No. 99-55275, 1999 14 WL 33629461 (9th Cir. Oct. 18, 1999)). 15 c. Plaintiff's objections to Defendants’ requests for judicial notice 16 are OVERRULED. 17 3. Plaintiffs request for judicial notice of the Ninth Circuit order 18 amending its previous ruling in Coudert is GRANTED. 19 4. Defendants’ Motion is DENIED without prejudice. 20 5. Plaintiff's requests for sanctions and to strike the Motion are 21 DENIED. | f 22 23 || DATED: August 18, 2022 a4 SUNSHINE SUZ .NNE SYKES United States District Judge 25 26 27 28