SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER

DATE: 01/13/2012

TIME: 02:00:00 PM
JUDICIAL OFFICER PRESIDING: David Brown
CLERK: E. Brown
REPORTER/ERM:
BAILIFF/COURT ATTENDANT:

DEPT: 53

CASE NO: 34-2011-00105419-CU-BT-GDS CASE !NIT.DATE: 06/17/2011

CASE TITLE: Oneal vs. State Fund Insurance
CASE CATEGORY: Civil - Unlimited

EVENT TYPE:

Motion - Other - Civil Law and Motion

APPEARANCES
Nature of Proceeding: Motion for an Order Declaring Jerry Lynn Oneal a Vexatious Litigant
TENTATIVE RULING

Defendants Summers & Shives, PC, Martin Shives and Ian Williamson's Motion to Declare Plaintiff Jerry
Lynn O'Neal a Vexatious Litigant and for a Prefiling order is granted as follows.
The procedural history relevant to the instant motion is as follows. Plaintiff O'Neal filed a civil action in
Alameda Superior Court for claims arising out of a February, 2004 accident in which O'Neal was struck
by a vehicle operated by Blacow Auto Repair. In December of 2007, moving Defendants Summers &
Shives substituted as counsel for Blacow, the driver of the vehicle, and the owner of the vehicle. During
Summers & Shives' representation of the defendants, O'Neal's counsel agreed to dismiss the claims
against the owner and the driver of the vehicle. Summers & Shives worked on the case until August 27,
2008, when they filed a notice of disassociation of counsel. Summers & Shives did not participate in the
trial of the first Alameda County action, which commenced on April 19, 2010. After trial, the jury returned
a verdict of $50,000 against Blacow. In June of 2010, Blacow filed a cost bill for approximately $106,000
pursuant to CCP 998 and based on O'Neal's rejection of an earlier settlement offer. In July of 2010, the
Court entered a modified judgment, ordering O'Neal to pay $56,826.51 to Blacow. Following this order,
O'Neal sought to challenge the judgment. On October 7, 2010, O'Neal filed an ex parte motion to vacate
the judgment, which was denied by Judge Richard Keller (Def. RFJN Exh. B, C.) On December 6, 2010,
O'Neal filed a second motion to vacate the judgment and for a new trial, as well as a motion to disqualify
Judge Keller. (Def. RFJN Exh. D, E.) In his memorandum in support of the second motion to vacate,
O'Neal stated: "I will make this motion and drag everyone into court 1000 times if necessary... ! will file
this motion until it is granted. I will force the defendants to defend it forever and the insurers to pay for
the defense forever..." (Def. RFJN Exh. D.)
On November 9, 2010, appearing in pro per, O'Neal filed a second civil action in Sacramento Superior
Court (2010-00091233) alleging collusion and fraud against the moving Defendants and 32 other
defendants. (Def. RFJN Exh. G.) On February 18, 2011, Defendants' motion to transfer the action to
Alameda Superior Court was granted. On August 11, 2011, the anti-SLAPP motion of Defendants
Simoncini, Winters, Johnson, Lin and McDonald was granted by the Alameda Court. (RFJN Exh. M.) On

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CASE TITLE: Oneal vs. State Fund Insurance

CASE NO: 34-2011-00105419-CU-BT-GDS

August 26, 2011, O'Neal filed a motion for reconsideration of the order granting the Simoncini
anti-SLAPP motion, the court rejected the filing and O'Neal did not serve the motion on Simoncini (RFJN
Exh. 0.). On October 7, 2011, the Alameda Court granted the moving Defendants' anti-SLAPP motion.
(RFJN Exh. P.) The motions for summary judgment of two additional groups of defendants were granted
on September 9, 2011. (RFJN Exh. Q, R.)
On June 17, 2011, O'Neal filed the instant action, styled as a class action, alleging cause of action for
Unfair Business Practices, Violation of Consumer Legal Remedies Act and Negligent Infliction of
Emotional Distress against substantially the same defendants named in the second action. (RFJN Exh.
L.) O'Neal's claims in this action also arise out of the personal injury action. (Id.} Summers & Shives
filed an anti-SLAPP motion in response to O'Neal's complaint, which this Court granted on September 9,
2011. (RFJN Exh. U.) The anti-SLAPP motions of two other groups of defendants were granted on
October 3, 2011 and October 14, 2011. (RFJN Exh. V, W.) On October 14, 2011, O'Neal filed a motion
for reconsideration of the order granting Summers & Shives' anti-SLAPP motion, in which he argued,
"The court cannot keep concealing the actions of the defendants under the immunity clauses, if so the
plaintiff will seek federal review as a violation of my civil rights and due process rights [p.2]...The court is
therefore biased and prejudiced in defendants' favor. The court has allowed the defendants and the
defendant attorneys absolute immunity for known criminal conduct actually Aiding and Abetting the
crimes. [p. 4-5.]" (RFJN Exh. X.)
Defendants argue that O'Neal's filing of successive civil actions and threats of future litigation in his
papers warrant a determination that O'Neal is a vexatious litigant. Defendants also contend that O'Neal's
correspondence indicates his intent to continue to file additional lawsuits. For example, Defendants
present a September 27, 2011 email from O'Neal in which he writes: "I have made the conclusion that
the California court will continue to shield and protect the attorneys in spite of the overwhelming
evidence against them in this matter. I will therefore appeal the SLAPP decisions of the court each and
every time they are granted ... ! have no choice but to file eight or so separate individual federal lawsuits
against all defendants adding as defendants Superior Court Judge Robert Keller..." (Shaffer Deel. Exh.
2.) Defendants also present a transcript of a September 12, 2011 voicemail received by Summers &
Shives' counsel in which he stated: "...So I don't know how long this is gonna take but this is gonna take
awhile until your clients are in jail cuz they're crooks and any and any normal person see that and they're
not gonna be immune from it no matter how long it takes, no matter what route this has to take, no
matter what it has to do..." (Musfelt Decl.1[3)
Defendants move for an order declaring O'Neal a vexatious litigant pursuant to CCP 391(b}(3), which
provides that a person may be declared a vexatious litigant where he or she: "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 are frivolous or solely intended to cause
unnecessary delay." Under CCP 391.7, "the court may, on its own motion or the motion of any party,
enter a prefiling order which prohibits a vexatious litigant from filing any new litigation without first
obtaining leave of the presiding judge of the court where the litigation is proposed to be filed."
"The remedy is directed at precluding the initiation of a meritless lawsuit and the costs associated with
defending such litigation." (Bravo v. lsmaj (2003) 99 Cal.App.4th 211, 222.) The proceedings described
above establish that O'Neal filed untimely post-trial motions in the original Alameda County action and
attempted to disqualify Judge Keller without any legitimate basis, filed a second action in which two
anti-SLAPP motions and two summary judgment motions have been granted, and filed a third action in
this Court in which three anti-SLAPP motions have been granted. O'Neal has not opposed many of
these dispositive motions and has not prevailed on any motion practice to date. Further, O'Neal's
correspondence and representations in his pleadings indicate his indifference to the merits of his
litigation and his intent to continue to litigate regardless of judicial determinations that his claims lack
merit. ''[W]here a defendant involved in pending litigation learns the plaintiff is planning to file a similar
lawsuit, the defendant may, as the defendants did here, avail themselves of section 391.7 in order to

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prevent filing of yet another lawsuit..." (Bravo, supra, 99 Cal.App.4th at 224.) Defendants' showing is
sufficient to demonstrate that O'Neal should be declared a vexatious litigant pursuant CCP 391(b)(3).
Defendants' motion is granted. A prefiling order pursuant to CCP 391.7 shall issue. Pursuant to CCP
391.7(e), the clerk shall provide to the Judicial Council a copy of the prefiling order.
The prevailing party shall prepare a formal order for the Court's signature pursuant to C.R.C. 3.1312.
COURT RULING

There being no request for oral argument, the Court affirmed the tentative ruling.

cc:

Vexatious Litigant Prefiling Orders

California Judicial Council
Administrative Office of the Courts
455 Golden gate Avenue
San Francisco, CA 94102-3688

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

DATE: 01/13/2012
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