Arthur Lopez v. HSBC Bank USA, N.A.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 8:19-cv-01816-JFW-KESx Date: January 17, 2020

Title: ARTHUR LOPEZ v. HSBC BANK USA, N.A., et al.

PRESENT:

THE HONORABLE KAREN E. SCOTT, U.S. MAGISTRATE JUDGE

Jazmin Dorado Not Present

Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR ATTORNEYS PRESENT FOR

PLAINTIFF: DEFENDANT:

None Present None Present

PROCEEDINGS (IN CHAMBERS): Order to Show Cause Why Arthur Lopez

Should Not Be Declared a Vexatious

Litigant

I. LEGAL STANDARD

The All Writs Act, coupled with federal courts “inherent power” to “regulate the

activities of abusive litigants,” authorizes district courts to enter pre-filing orders limiting the

right of vexatious litigants to file legal actions. De Long v. Hennessey, 912 F.2d 1144, 1147 (9th

Cir. 1990). Thus, this authority exists independently of the Court’s subject matter jurisdiction to

decide the merits of the underlying claims. See id. at 1146-47; see also Peabody v. United

States, 263 F. App’x 560 (9th Cir. 2008) (affirming vexatious litigant order entered after

complaint was dismissed for lack of subject matter jurisdiction).

While courts’ authority to enter such orders should be exercised “rarely,” “[f]lagrant

abuse of the judicial process cannot be tolerated because it enables one person to preempt the use

of judicial time that properly could be used to consider the meritorious claims of other litigants.”

De Long, 912 F.2d at 1148. The Ninth Circuit requires four factors (“the De Long factors”) be

proven before a litigant may be declared vexatious: (1) he/she must be given adequate notice and

a chance to oppose a restrictive pre-filing order before it is entered; (2) the district court must

present an adequate record for review by listing the case filings that support its order; (3) the

district court must further make substantive findings as to the frivolous nature of the filings; and

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(4) the order must be narrowly tailored to remedy only the litigant’s particular abuses. Id. at

1147-49. In considering whether De Long factors three and four are met, the Ninth Circuit has

also directed district courts to consider:

 “the litigant’s history of litigation and in particular whether it entailed

vexatious, harassing or duplicative lawsuits”;

 “the litigant’s motive in pursuing the litigation, e.g., does the litigant have an

objective good faith expectation of prevailing?”;

 “whether the litigant is represented by counsel”;

 “whether the litigant has caused needless expense to other parties or has posed

an unnecessary burden on the courts and their personnel”; and

 “whether other sanctions would be adequate to protect the courts and other

parties.”

Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014) (quoting Safir v.

U.S. Lines, Inc., 792 F.2d 19 (2d Cir. 1986)); see also Molski v. Evergreen Dynasty Corp., 500

F.3d 1047, 1056-62 (9th Cir. 2007) (noting that Safir “provides a helpful framework for applying

the two substantive factors (factors three and four) of [the De Long] standard”).

“To decide whether the litigant’s [prior] actions are frivolous or harassing,” under the

third factor from De Long, “the district court must look at both the number and content of the

filings as indicia of the frivolousness of the litigant’s claims. … An injunction cannot issue

merely upon a showing of litigiousness. The plaintiff’s claims must not only be numerous, but

also be patently without merit.” Molski, 500 F.3d at 1059 (citation and quotation marks

omitted). “Frivolous litigation is not limited to cases in which a legal claim is entirely without

merit. It is also frivolous for a claimant who has some measure of a legitimate claim to …

assert[] facts that are grossly exaggerated or totally false.” Id. at 1060-61. Claims might also be

deemed vexatious if the plaintiff “repeatedly assert[s] the same claims in a slightly altered

guise,” “use[s] the courts to block and hinder various business transactions of the defendants,”

and/or uses “senseless and unduly burdensome” litigation tactics. Safir, 792 F.2d at 24.

It appears that a vexatious litigant order need not rely only on prior lawsuits that were

expressly dismissed as frivolous. For example, in Molski, the Ninth Circuit upheld a vexatious

litigant order that was based on a finding that the litigant had “harassed defendants into cash

settlements….” 500 F.3d at 1059-60; see also id. at 1052 (noting that “Molski had tried on the

merits only one of his approximately 400 suits and had settled all the others”).

Additionally, the Central District of California’s Local Rules provide in relevant part:

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On its own motion or on motion of a party, after opportunity to be heard,

the Court may, at any time, order a party to give security in such amount as the

Court determines to be appropriate to secure the payment of any costs, sanctions

or other amounts which may be awarded against a vexatious litigant, and may

make such other orders as are appropriate to control the conduct of a vexatious

litigant. Such orders may include, without limitation, a directive to the Clerk not

to accept further filings from the litigant without payment of normal filing fees

and/or without written authorization from a judge of the Court or a Magistrate

Judge, issued upon such showing of the evidence supporting the claim as the

judge may require.

… Any [such] order … shall be based on a finding that the litigant to

whom the order is issued has abused the Court’s process and is likely to continue

such abuse, unless protective measures are taken.

Local Rules 83-8.2, 83-8.3.

II. DISCUSSION

A. Notice and a Chance to Respond

Regarding De Long factor one, responding to this Order to Show Cause (“OSC”) is Mr.

Lopez’s opportunity to be heard and oppose entry of a restrictive, pre-filing order.

B. Frivolous Nature of the Prior Actions

Regarding De Long factors two and three, the following filings by Mr. Lopez in this

Court appear to be frivolous and/or abusive:

Case No. Title Summary of Allegations Disposition

1 13-0897 Lopez v. In June 2012, a private In forma pauperis (“IFP”)

Our Lady school did not admit his application was denied and

Queen of children because of action dismissed because a

Angels discrimination on the basis non-attorney guardian for

Catholic of sex, religion, race, and minors must have counsel

School disability, as well as in under Local Rule 83-2.2.1.

retaliation in violation of the

First Amendment. Lopez

admitted that the school

cited class size and his

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failure to timely pay tuition

as reasons for the non-

admission.

2 13-1445 Lopez v. During the 2012-13 school IFP was denied based on an

Newport year, public school staff, inadequate showing of

Elementary PTA members, and “local indigency.

School real estate agencies with …

ties to” the school

discriminated against Lopez

and his family on the basis

of sex, race, and religion in

various ways, e.g.,

disciplining Lopez’s son;

failing to comply with a

doctor’s note about his son;

acting “hostile” towards

Lopez; failing to hire any

full-time male teachers; and

choosing not to rent property

to Lopez’s family.

3 13-1800 Lopez v. Same allegations as in case Action was dismissed for

Newport no. 13-1445, realleged in a lack of prosecution after

Elementary new action where Lopez about 9 months passed

School paid the filing fee. without service on

defendants; dismissal was

affirmed on appeal.

4 14-1785 Lopez v. Hotel denied Lopez’s family IFP was denied and the

Newport housing after they “had action dismissed because the

Dunes resided [there] for claims were too vague to

Waterfront approximately 1 year under establish federal jurisdiction

Resort constant discrimination” on or state a valid claim for

the basis of sex, race, relief.

religion and speech.

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5 15-1354 Lopez v. Between 2007 and 2012, the Defendants’ motion to

MUFG defendant banks stole dismiss was granted because

Union Bank Lopez’s trade secrets related most of the claims were

to his auto-finance business; barred by res judicata

declined his business loan (Orange County Superior

application; and foreclosed Court case no. 30-2012-

on his home. These actions 00565003) and the other

were fraudulent, violated allegations failed to a state

various consumer protection claim; dismissal affirmed on

statutes, were in retaliation appeal.

for his reporting of the

bank’s illegal practices, and

were racially discriminatory.

6 16-2267 Lopez v. Initial complaint alleged that After he was given several

Newport police failed to act on chances to amend, IFP status

Beach Police “repeated requests” to press was denied and the action

Dept. charges against his ex-wife dismissed for failure to state

for domestic violence for a a claim and based on

2015 incident in which immunity; the court noted

Lopez was charged with that Lopez had “regularly –

domestic violence. He and generally without

alleged that this was success – pursued similar

discriminatory on the basis civil rights actions against

of sex, race, and religion. local agencies in this Court,”

He asked the court to award listing his prior actions. He

him custody of his children, filed multiple interlocutory

dismiss all state criminal appeals, which where

charges, and award dismissed.

damages. Later iterations of

the complaint also alleged

that police had improperly

allowed his ex-wife to

possess his Lexus and

complained about the bail

set after his 2015 arrest.

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7 17-0297 Lopez v. In February 2015, police Summary judgment was

Costa Mesa conducted an illegal traffic granted for defendants

Police Dept. stop and search and because the undisputed

discriminated against him evidence showed that Lopez

based on sex, religion, and made an illegal turn over a

race. median and that his car had

been unregistered and

underinsured for nearly a

year. Lopez filed multiple

improper interlocutory

appeals; his final appeal

remains pending (case no.

18-55520).

8 17-0488 Lopez v. In 2016, police arrested him On IFP screening: claims

Newport for violating a restraining against city and police

Beach Police order, which was a “bogus department were dismissed

Dept. charge created … with the for failure to allege policy or

assistance” of his ex-wife. custom; discrimination

He brought “claims of claims were dismissed as

malicious prosecution / false conclusory; and malicious

arrest / false imprisonment” prosecution and false arrest

and discrimination on the claims against investigating

basis of sex, race, and officer were allowed to

religion. proceed. Summary judgment

was granted for the officer

because there was probable

cause for arrest and

prosecution.

Lopez filed multiple appeals

from non-appealable orders;

his final appeal remains

pending (case no. 18-56452).

Lopez was ordered to pay

sanctions for failing to

appear at a status conference.

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9 17-0496 Lopez v. In January 2012, tow Dismissed (a) as time-barred

Tustin Police company put diesel fuel in with no equitable tolling for

Dept. Plaintiff’s gas car, damaging 2013 state court action on the

it; police officers who called same facts that was

the tow company and dismissed for lack of

company employees prosecution (Orange County

discriminated against him on Superior Court case no. 30-

the basis of sex, race, and 2013-00622173); and (b) for

religion; this and other failure to state a claim

negative interactions with because no facts supported

police showed broad Lopez’s claim that

conspiracy against him by defendants acted with

senior officials at various discriminatory intent; appeal

Orange County police was found frivolous.

agencies.

10 17-0752 Lopez v. Police discriminated against IFP denied and action

Irvine Police him on the basis of sex, race, dismissed because

Dept. and religion when they: (a) allegations of

(a) removed his son from his discrimination in 2015

car during an April 2011 incident were conclusory;

traffic stop, citing the lack of and (b) claims based on 2011

a booster seat; and (b) in incident were untimely;

November 2015, refused to Court noted Lopez’s

give Lopez back a car that “numerous similar frivolous

had been improperly given complaints filed in recent

to his ex-wife (see case no. months in this district.”

16-2267). Multiple appeals were found

frivolous.

11 17-0845 Lopez v. Police and school district IFP denied and action

Newport conspired to discriminate dismissed after leave to

Beach Police against him on the basis of amend, because Lopez

Dept. sex, race, and religion and “fail[ed] to allege any

violate his “First, Fourth, understandable set of facts

Fifth, Eighth, and Fourteenth showing plausible

Amendment rights.” In constitutional violation or

2015, school refused to

enroll his son after his

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disruptive (according to discrimination”; appeal was

school) conversation with found frivolous.

police in school parking lot

about discrimination against

him and his son; police did

not act on his complaints

and helped school “cover

up.”

12 17-1466 Lopez v. Same as 15-1354 (between Dismissed on defendants’

MUFG 2007 and 2012, bank stole motion because claims were

Union Bank trade secrets, declined barred by res judicata;

business loan application, affirmed on appeal.

and foreclosed on home).

13 17-1470 Lopez v. Plaintiff fell at federal Summary judgment for

United courthouse and brought defendants because Lopez

States negligence claim under the did not rebut defense expert’s

Federal Tort Claims Act. opinion that court walkway

was not dangerous; appeal

pending (case no. 19-55162).

14 17-2038 Lopez v. State, governor, county, and IFP denied and action

California county employee violated dismissed for failure to state

his First, Fourth, Fifth, a claim because complaint

Eighth and Fourteenth was a “rambling,

Amendment rights in unintelligible rant” against

various ways, e.g.: EEOC government officials; court

declined to pursue his noted that Lopez’s “nearly 20

religious discrimination actions raise issue of whether

claims against his employer; he is a vexatious litigant or

state failed to provide him approaching threshold.”

with qualified pro bono Appeal was found frivolous.

counsel for his civil rights

cases; state court judge

would not let him discharge

his public defender in a 2015

criminal case; every local

government entity he has

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interacted with (e.g., DMV,

child support office, and

probation office) has

conspired to violate his civil

rights.

15 17-2163 Lopez v. Same as 17-0297 (in IFP denied and action

Costa Mesa February 2015, police dismissed as untimely;

Police Dept. conducted an illegal traffic Lopez’s claim that he

stop and search and “‘recently discovered’

discriminated against him alleged collusion by senior

based on his sex, religion, police personnel in Orange

and race) County” was “belied by [his]

minimal and conclusory

allegations”; appeal was

found frivolous.

16 17-2165 Lopez v. Same as 17-0488 (in 2016, IFP denied and action

Newport police wrongfully harassed dismissed for failure to state

Beach Police and arrested him after ex- a claim and “[b]ecause of the

Dept. wife accused him of frequency and nature of

violating restraining order); [Lopez’s] frivolous actions in

alleging that city and county this district”; court noted that

“systematically [and] allegations were “rambling,”

routinely train” their “largely unintelligible,” and

employees to discriminate stated “no coherent civil

against Latinos, Catholics, rights violation[s] beyond

and males. that which the Court green-

lighted against one individual

officer … in the 17-0488

action”; appeal was found

frivolous.

17 17-2379 Lopez v. In November 2017, police Summary judgment for

Corona unlawfully towed his car defendants because car was

Police Dept. when it was parked on the not properly registered and

street near his house. was blocking neighbor’s

driveway; Lopez ordered to

pay Rule 11 sanctions “for

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knowingly submitting a

materially doctored

document,” i.e., a DMV

receipt, to try to prove the car

was properly registered.

Appeal was dismissed for

failure to prosecute.

18 18-0032 Lopez v. Police, city, ticket IFP denied and action

Santa Ana processing center, and dismissed under Rooker-

Police Dept. judicial council violated due Feldman doctrine and

process and equal protection because civil rights claims

by only permitting were “unintelligible.”

challenges to traffic citations

via mail and improperly

dismissing and/or processing

his civil action in state court.

19 18-0093 Lopez v. Irvine Co. entities refused to Defendants’ motion to

The Irvine rent him an apartment dismiss was granted;

Co. because of his race, which constitutional claim was

violated his constitutional dismissed because

rights and the federal Fair defendants were not state

Housing Act, and was an actors; Fair Housing Act

unfair business practice claim was dismissed as time-

under California law. barred; court declined to

exercise supplemental

jurisdiction over state-law

claim; appeal was found

frivolous.

20 18-1144 In re Lopez Appeal from bankruptcy IFP denied and appeal

court orders entered in 2011 dismissed as untimely and

and 2012, which Lopez frivolous; appeal to 9th

contended violated his equal Circuit also dismissed as

protection and due process frivolous

rights

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21 18-1145 In re Lopez Same Dismissed as untimely;

appeal to 9th Circuit also

dismissed as frivolous

22 18-1154 In re Lopez Same Dismissed as untimely;

appeal to 9th Circuit also

dismissed as frivolous

23 18-1240 In re Lopez Same Dismissed as untimely;

appeal to 9th Circuit also

dismissed as frivolous

24 19-1143 Lopez v. Civil rights claims against IFP denied and action

Superior the state and the local state dismissed after Lopez was

Court trial court, as well as a given a chance to amend;

multitude of former allegations were

employers, state agencies, “unintelligible and frivolous”

family members, law and/or barred by Eleventh

enforcement agencies, and Amendment immunity.

national political figures.

25 19-1816 Lopez v. Claims under various federal IFP denied and action

HSBC Bank, consumer protection statutes dismissed for failure to state

et al. against banks who a claim because Lopez failed

foreclosed on his mother’s to allege facts showing he

home in 2018, and against was a borrower on the loan

former FBI director James and because the allegations

Comey, who Lopez alleged against Comey were

failed to investigate Lopez’s “fanciful.”

civil rights complaints

This list contains multiple cases against judges, courts, and prosecutors who are immune

from suit. It contains multiple cases against government entities and/or employees alleging that

they violated Mr. Lopez’s civil rights by doing nothing more than failing to act on his complaints

or siding with his ex-wife. In multiple cases, Mr. Lopez alleged that banks, school staff, and/or

police officers took actions that otherwise appear lawful because they were motived to

discriminate against men, Hispanics, and/or Catholics, without alleging any facts suggesting a

discriminatory motive. The cases describe implausible conspiracies, assert time-barred claims,

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repeat previously dismissed claims, seek exaggerated damages, and are replete with procedurally

improper and/or frivolous appeals.

C. Narrowly Tailored Remedy

Regarding De Long factor four, previous attempts to sanction Mr. Lopez—by ordering

him to pay costs under Rule 11, dismissing his actions, and noting the many unmeritorious cases

he had filed in this district—appear to have had no deterrent effect. See Ringgold-Lockhart, 761

F.3d at 1065-66 (holding that, before entering a vexatious litigant order, courts should

“consider[] whether imposing sanctions such as costs or fees” would be “an adequate deterrent”).

Moreover, it appears that an appropriate pre-filing order may be crafted that is narrowly

tailored to Mr. Lopez’s vexatious behavior. The Court’s proposed pre-filing order would require

Mr. Lopez to obtain pre-filing approval from a District Judge of this Court prior to filing any

civil lawsuit in the U.S. District Court for the Central District of California that:

(1) brings any claim against any public entity or public employee (including but

not limited to schools, police officers, police departments, cities, counties, courts,

judges, and judicial employees);

(2) alleges that any person or entity (whether public or private) discriminated

against Mr. Lopez or his family members on the basis of sex, race, or religion; or

(3) brings any claim against MUFG Union Bank, N.A., MUFG Americas

Holdings Corporation, Union Bank, N.A., or Union BanCal Corporation (i.e., the

defendants named in case nos. 15-1354 and 17-1466).

See, e.g., Molski, 500 F.3d at 1061 (approving order requiring vexatious litigant to obtain

preapproval for “actions under Title III of the ADA in the Central District of California”);

Endsley v. California ex rel. Brown, 627 F. App’x 644, 645 (9th Cir. 2015) (affirming prefiling

order that covered “any civil complaint, habeas petition, or IFP application” but striking down

provision deeming permission denied if not granted within 30 days); Boustred v. Gov’t, No. 08-

00546, 2008 WL 4287570, at *3, 2008 U.S. Dist. LEXIS 111090, at *7-8 (N.D. Cal. Sept. 17,

2008) (requiring vexatious litigant to “obtain leave of court before filing any further suits

alleging any ‘civil rights’ claims or conspiracy claims involving parties that he named in this

current case or [two specific cases] previously filed in this court”)

//

//

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III. CONCLUSION

Based on the foregoing, IT IS HEREBY ORDERED that, on or before February 18,

2020, Mr. Lopez shall show cause in writing, if any he has, why he should not be declared a

vexatious litigant and why the Court should not enter the pre-filing order described above.

Initials of Deputy Clerk JD