California's Vexatious Litigant Law
California's vexatious litigant law dates back to the early 1960's when the appellate court in Stafford v. Russell (1962) 201 Cal.App.2d 719, 722, suggested the study of vexatious litigation and the unreasonable burdens it places upon the courts.
In response, the Legislature enacted sections 391 through 391.6 (Stats. 1963, ch. 1471, 1, p. 3038) to address problems "created by the persistent and obsessive litigant, appearing in propria persona, who has constantly pending a number of groundless actions." (Com. on Admin. of Justice, Rep. (1963) 38 Cal. St. B.J. 485, 489; Note, The California Vexatious Litigant Statute: A Viable Judicial Tool to Deny the Clever Obstructionists Access? (1998) 72 So.Cal. L.Rev. 275, 284-285.)
As originally enacted, section 391 defined terms used in the substantive provisions of the law. In particular, its definition of vexatious litigant included a "person" "(1) Who, in the immediately preceding seven-year period has commenced, prosecuted or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to him; or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing ... ." ( 391, former subd. (b)(1), enacted by Stats. 1963, ch. 1471, 1, p. 3038.)
At the time, section 391, subdivision (a) defined litigation as any civil action or proceeding, commenced, maintained or pending in any court of this state.
The balance of the original vexatious litigant law, sections 391.1 through 391.6, established procedures by which a defendant in a pending case could move to designate a plaintiff as a vexatious litigant and to require a vexatious litigant to furnish security under certain specified circumstances. Failure to produce the ordered security would result in dismissal of the litigation in the defendant's favor.
Since its enactment of the vexatious litigant law, the Legislature has expanded its reach. (Camerado Ins. Agency, Inc. v. Superior Court (1993) 12 Cal.App.4th 838, 843 16 Cal. Rptr. 2d 42.)
Most notably, in 1990, the Legislature both broadened the definitions of terms used in the law ( 391) as well as created an additional tool, known as a prefiling order ( 391.7), by which courts may counter vexatious litigants' misuse of our justice system (Bravo, supra, 99 Cal.App.4th at p. 221). (Stats. 1990, ch. 621, 3, p. 3072.)
Currently, section 391 defines terms, used in the vexatious litigant law and relevant to our discussion, as follows:
"(a) 'Litigation' means any civil action or proceeding, commenced, maintained or pending in any state or federal court.
"(b) 'Vexatious litigant' means a person who does any of the following:
"(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.
"(2) After a litigation has been finally determined against the person, repeatedly relitigates or 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) 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 the litigation was finally determined.
"(3) 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.
"(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence. ...
"(d) 'Plaintiff' means the person who commences, institutes or maintains a litigation or causes it to be commenced, instituted or maintained, including an attorney at law acting in propria persona.
"(e) 'Defendant' means a person (including corporation, association, partnership and firm or governmental entity) against whom a litigation is brought or maintained or sought to be brought or maintained."
Section 391.7, which requires in propria persona vexatious litigants to seek prior court approval before filing new actions, currently provides as follows:
"(a) In addition to any other relief provided in this title, 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 in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court.
"(b) The presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3.
"(c) The clerk may not file any litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant first obtains an order from the presiding judge permitting the filing. If the clerk mistakenly files the litigation without the order, any party may file with the clerk and serve on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order as set forth in subdivision (a). The filing of the notice shall automatically stay the litigation. The litigation shall be automatically dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding judge permitting the filing of the litigation as set forth in subdivision (b). If the presiding judge issues an order permitting the filing, the stay of the litigation shall remain in effect, and the defendants need not plead, until 10 days after the defendants are served with a copy of the order.
"(d) For purposes of this section, 'litigation' includes any petition, application, or motion other than a discovery motion, in a proceeding under the Family Code or Probate Code, for any order.
"(e) The clerk of the court shall provide the Judicial Council a copy of any prefiling orders issued pursuant to subdivision (a). The Judicial Council shall maintain a record of vexatious litigants subject to those prefiling orders and shall annually disseminate a list of those persons to the clerks of the courts of this state."
Section 391.7's prefiling order provisions are distinguishable in significant ways from the security provisions of sections 391.1 through 391.6. Unlike the security provisions which require a motion by "a defendant" ( 391.1), section 391.7 authorizes a court "on its own motion or the motion of any party" to enter a prefiling order against a vexatious litigant ( 391.7, subd. (a)).
Also, in contrast to the security provisions, the prefiling order operates beyond the pending case and affects a vexatious litigant's future filings in propria persona, by requiring permission be obtained first from the presiding judge. ( 391.7, subd. (a); McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216 73 Cal. Rptr. 2d 288 (McColm); see also Bravo, supra, 99 Cal.App.4th at p. 221.)
Further, the presiding judge will grant such permission provided it appears the litigation has merit and has not been filed for the purposes of harassment or delay. ( 391.7, subd. (b).)
By comparison, a court considering a defendant's motion for security must determine in part that there is no reasonable probability the plaintiff will prevail in the pending litigation against the moving defendant. ( 391.3.)
Thus, while imposing limits on a vexatious litigant's future filings, section 391.7 provides a workable means by which a vexatious litigant may proceed with litigation. (Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 195 58 Cal. Rptr. 3d 466 (Forrest).)
Over the years, appellate courts have reviewed challenges to the vexatious litigation law and trial court determinations of vexatious litigant status. (See cases cited in McColm, supra, 62 Cal.App.4th at p. 1214.)
In the process, appellate courts have taken an expansive approach to the vexatious litigant law in much the same way as the Legislature. (See Forrest, supra, 150 Cal.App.4th at pp. 195-196; In re Natural Gas Antitrust Cases (2006) 137 Cal.App.4th 387, 396 39 Cal. Rptr. 3d 909; Bravo, supra, 99 Cal.App.4th at p. 222; Camerado Ins. Agency, Inc. v. Superior Court, supra, 12 Cal.App.4th at pp. 840-845.)
Appellate courts also have applied the vexatious litigant law to appeals and writ petitions filed in the Courts of Appeal. (McColm, supra, 62 Cal.App.4th at p. 1214.)
McColm involved an appellant who had been declared a vexatious litigant in prior litigation and failed to post security imposed as a condition to proceeding with her appeal. (Id. at p. 1213.)
She claimed, among other arguments, that the vexatious litigant law applied only to plaintiffs and defendants in trial courts. (Id. at pp. 1214, 1216.) McColm disagreed, holding an appellant or writ petitioner meets the definition of plaintiff in section 391 as such a person "certainly commences, institutes or attempts to maintain the litigation in the appellate court." (McColm, supra, 62 Cal.App.4th at pp. 1216-1217.)
Appellate courts, at least in In re Luckett (1991) 232 Cal.App.3d 107, and In re Whitaker (1992) 6 Cal.App.4th 54 8 Cal. Rptr. 2d 249 (Whitaker), also have declared appellants vexatious litigants. In so doing, these courts have relied on a litigant's filings in the Courts of Appeal to determine the appellant to be a vexatious litigant under section 391, subdivision (b)(1) and/or (3). Thus, to the extent R.H. claims we lack precedent to declare him a vexatious litigant for the first time on appeal, we disagree under the authority of Luckett and Whittaker.
The Luckett court reviewed 43 separate appellate actions Luckett had filed with it. (Luckett, supra, 232 Cal.App.3d at p. 109.) The appellate court concluded he repeatedly filed unmeritorious motions and engaged in frivolous tactics in those appellate actions and therefore determined Luckett was a vexatious litigant under section 391, subdivision (b)(3). (Luckett, supra, 232 Cal.App.3d at pp. 109-110.) Luckett was also the first instance in which an appellate court exercised the authority under section 391.7 to issue a prefiling order. (Whitaker, supra, 6 Cal.App.4th at p. 55; Luckett, supra, 232 Cal.App.3d at pp. 110-111.)
In determining its appellant was a vexatious litigant under section 391, subdivision (b)(1), the Whitaker court cited not only the excessive trial court actions Whitaker had filed but also the 35 writ and appeal proceedings he had filed. (Whitaker, supra, 6 Cal.App.4th at pp. 55-56.)
The Whitaker court further observed such repeated misuse results in a useless diversion of the appellate court's attention and prejudices other appellate parties, many of whom wait years for resolution of bona fide disputes.
Similarly, the California appellate system and our state's taxpayers are damaged by what amounts to a waste of the appellate court's time and resources. (Id. at p. 57.)
As the McColm court later explained, although these appellate courts "have not articulated their reasons for applying the statute to appellate writs and appeals, their willingness to do so stems from the statute's broad definitions for the terms 'litigation,' 'plaintiff' and 'defendant.' " (McColm, supra, 62 Cal.App.4th at p. 1215.)