MCLE Article: Pest Control

Code of Civil Procedure Section 391 provides a useful tool for dealing with vexatious litigants

By Ira M. Friedman and Abby B. Friedman

Ira M. Friedman and Abby B. Friedman are partners in the law firm of Friedman & Friedman in Beverly Hills. The firm's practice focuses on the areas of family law, enforcement of judgments, and general civil litigation.

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Every attorney has felt unpleasantly surprised at one time or another by motions, ex-parte applications, discovery, or motions to compel that are totally without merit. Often, propria persona litigants with time on their hands are guilty of making these baseless filings. What can one do to stop this train? One may seek to have the litigant named a vexatious litigant. The finding of vexatious litigant places very effective restrictions on a litigant's conduct.

A vexatious litigant is defined by Code of Civil Procedure Section 391. According to the statute, a vexatious litigant is one who does any of four acts:

One: In the immediately preceding seven-year period, the litigant commenced, prosecuted, or maintained in propria persona, at least five litigations other than in a small claims court that have been 1) finally determined adversely to the person or 2) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.1

The immediately preceding seven-year period is measured from the date that the motion for relief from a vexatious litigant is filed.2 It is not from the date the lawsuit itself was filed. The final determination refers to a judgment that is final for all purposes after all avenues for direct review have been exhausted.3 Finally determined means that the time for appeal has expired or that an appeal has been concluded and is no longer pending.

Two: After a litigation has been finally determined against the person, he or she repeatedly relitigates or attempts to relitigate in propria persona either the validity of the decision or the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by a final determination against the same defendant or defendants.4 For these purposes, the court may consider cases that the plaintiff has voluntarily dismissed without prejudice.5

Three: In any litigation while acting in propria persona, the litigant 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.6

Four: The litigant 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.7

Any one of these four acts is sufficient to qualify the litigant as vexatious. In Stolz v. Bank of America National Trust and Savings Association, the appellate court found that six prior cases prosecuted or maintained by Stolz in propria persona met the definition of a vexatious litigant.8 In determining Stolz's status as a vexatious litigant, the court relied upon the fact that in the previous cases filed by Stolz not only had the litigation been concluded adversely to him but also Stolz had unjustifiably permitted five of the matters to remain pending for at least two years without prosecution. The court further found that Stolz had no reasonable probability of prevailing in the pending action.9 The court found Stolz to be a vexatious litigant within the statutory meaning of the term.

Similarly, in Tokerud v. Capitol Bank Sacramento, the appellate court found that the plaintiff met the statutory requirement to be declared a vexatious litigant by prosecuting five actions in propria persona within the previous seven years that were finally determined adversely to him.10 The key finding in Tokerud was that even a voluntary dismissal without prejudice placed Tokerud within the statutory framework of a vexatious litigant. The court reasoned that although the statute was enacted to ease the burden placed upon a defendant who was a target of obsessive and persistent litigants, an action dismissed, with or without prejudice, is a burden on the target of litigation and the judicial system.11 The court explained, "A party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the actions through to completion. The difference is one of degree, not kind."12 The underlying sentiment was that by unduly burdening court calendars, a real detriment is caused to litigants who have legitimate controversies to be determined. The common thread in Stolz and Tokerud is repeated filings that are without merit against the same defendants or opposing party.

A propria persona litigant is not necessarily a single individual. The statute provides the plaintiff who has caused litigation to be commenced, instituted, or maintained may be deemed a vexatious litigant, including an attorney at law acting in propria persona.13 In addition, case law has held that attorneys who represent an individual14 or corporations that are controlled by an individual may also be declared to be vexatious litigants.15 For example, in In re Shieh, the attorney filed innumerable complaints in federal and state courts, many of which were duplicative and most of which were based upon similar facts. The court found that the attorney ostensibly represented the litigant but that the attorney served as a mere puppet.16 The court also concluded that Shieh had filed a groundless, wholly frivolous complaint with highly improper motives and had filed other documents for purely vexatious reasons. As a result, Shieh was found to be a vexatious litigant.17 The court found that simply limiting Shieh from filing in propria persona would be ineffective as a means of curbing his unreasonable behavior. Because Shieh had not engaged attorneys as assessors of his claims but only as scriveners to ostensibly represent him, the ruling extended to Shieh's filing through an attorney as well as in propria persona.18

In Say & Say, Inc. v. Ebershoff, a corporation was held to be a vexatious litigant responsible for the acts of the individual who controlled it.19 Say & Say discusses the fact that generally a corporation is a legal entity with a separate existence from its shareholders or officers. However, under general theories of corporate law, the corporate entity may be disregarded under certain circumstances. The court held that because the plaintiff's attorney dominated and controlled the corporate entity and was attempting to circumvent the vexatious litigant law by using the corporation as the plaintiff,20 the court could disregard the corporate fiction and find the corporation to be a vexatious litigant. Thus, corporations are subject to the vexatious litigant law.21 If the corporate veil can be pierced, a corporation can be found to be a vexatious litigant.

Remedies

When a person or his or her proxy is declared a vexatious litigant, two protective remedies become available. The vexatious litigant will be required to post security or will become subject to a prefiling order.22 The prefiling order requires a litigant to obtain leave of court before filing a new action or motion.

A party is declared a vexatious litigant as a result of a motion to obtain protective relief from the litigant's vexatious behavior. A defendant files a noticed motion for a prefiling order or an order requiring the plaintiff to post security,23 and as part of the motion facts are presented showing that the plaintiff is a vexatious litigant. The motion is controlled by the requirements for any motion.24

The defendant may bring a motion for security at any time until final judgment is entered, upon notice and hearing for an order requiring the plaintiff to furnish security.25 Like any other motion, the motion must be filed and served at least 16 court days before the hearing date.26 A careful attorney will check with the clerk of court that will hear the motion to be certain that the hearing date is available and not arbitrarily set the date.

As with other motions, the motion must be supported by a declaration and a memorandum of points and authorities.27 The declaration should show that the plaintiff is a vexatious litigant as defined by statute and that there is no reasonable probability that the plaintiff will prevail in the litigation.28

If the propria persona litigant has filed frivolous motions in another case, good practice dictates that an attorney attach conformed copies of the motions and the ruling on those motions as exhibits to a Request for Judicial Notice.29 This will enable the judicial officer hearing the motion for vexatious litigant remedies to understand what happened in the other cases and to appreciate that a pattern of vexatious litigation exists. When the defendant brings a motion for security, the litigation is stayed until the motion for security has been heard and determined and until the security, if any, has been posted.30

At the hearing on the motion, the court can consider written or oral evidence by witnesses or affidavit.31 If the court determines that the litigant is a vexatious litigant and that there is no probability that the plaintiff will prevail, the court shall order the plaintiff to furnish security in an amount fixed by the court.32 A ruling on a vexatious litigant motion, however, should not be confused with a ruling on the merits of the plaintiff's claims. Determination of vexatious litigant, notwithstanding the finding of likelihood of success, is not a ruling on any issue in the underlying litigation or on the merits of any issue.33

The amount of the security and the time within which the security must be posted shall be fixed by the court.34 The security, in the form of an undertaking, is to assure payment of the reasonable expenses of the party for whose benefit the undertaking is required. The expenses include attorney's fees incurred in connection with the litigation.35 It is immaterial if the plaintiff cannot afford to post security.36 If the plaintiff does not post the security within the time set, the litigation shall be dismissed as to the defendant for whose benefit the security was ordered.37

An order for security may be appealed. To avoid the possibility that the amount of security will be deemed unsupported by sufficient evidence, it is prudent for the moving party to provide the court with an estimate of its expenses that is supported with as much evidence as possible.38

The Prefiling Order

In addition to requiring security, on the motion of a party or the court's own motion, the court can issue a prefiling order, which prohibits the vexatious litigant from filing any new litigation in propria persona without leave of court.39 A request for a prefiling order may be part of the original motion to declare the party a vexatious litigant. A prefiling order requires the vexatious litigant to obtain leave of the presiding judge of the court where the proposed litigation is to be filed prior to any such filing.40 Disobedience of a prefiling order may be contempt of court.41

If it appears to the presiding judge that the litigation has merit and has not been filed for the purposes of harassment or delay, the judge may condition the filing of litigation upon the furnishing of security, consistent with the requirements of a motion for security.42

If the court grants a motion to have the plaintiff declared a vexatious litigant, the moving attorney should advise the clerk of the court of the order and provide the clerk with a copy of the order. The clerk can then advise the court's filing windows in the county not to accept any new pleadings from the propria persona litigant unless the litigant first obtains an order allowing the filing of the specific documents. The Judicial Council shall maintain a record of vexatious litigants and shall annually disseminate a list of those persons to the clerks of the court of the state.43

The prefiling order may also be applied to the filing of an appeal in the case giving rise to the prefiling order. It will not apply to any appeal filed in another matter.44 As the court held in Wilmot v. Commission on Professional Competence: The appellant's "name appears on the vexatious litigant prefiling orders list compiled and disseminated by the Judicial Council of California. According to the list, the prefiling order was made in In re The Marriage of Wilmot (Sup. Ct. Kern County, No. 525300) on May 10, 1993, and pertains only to filings related to that action. The case presently before us is not action No. 525300. We therefore treat the present appeal no differently than we would if appellant's name did not appear on the list."45

In another case, McColm v. Westwood Park Association, a rehearing was denied when the appellate court entered an order requiring McColm to post an undertaking as a condition to proceeding with her appeal.46 McColm had been declared to be a vexatious litigant. The court held that for purposes of vexatious litigant requirements, "litigation" encompasses civil trials and special proceedings, including proceedings initiated in the courts of appeal by notices of appeal or by writ petitions, and thus the vexatious litigant statute applied to the plaintiff's appeal.47

The statutory provisions that address the vexatious litigant protect defendants against the financial burden of defending against repetitious, nonmeritorious lawsuits and prevent the abuse of the judicial process.48 The unreasonable burden placed upon the courts by groundless litigation prevents the speedy consideration of proper litigation and the tremendous time and effort consumed by unjustifiable suits makes it imperative that the courts enforce the vexatious litigant statutes enacted by the legislature.49 The procedure to use to have a plaintiff declared a vexatious litigant is clearly set forth in the statutes and can be used effectively when it is truly necessary.

SIDEBAR

Federal Law Regarding Vexatious Litigants

Federal law also addresses the problem of vexatious litigants. In Molski v. Mandarin Touch Restaurant, the court held that a disabled restaurant patron's claim under the Americans with Disabilities Act (ADA) against a restaurant owner constituted vexatious litigation.1 The court found Molski's behavior extreme and egregious because of his filing, since 1998, of more than 400 federal lawsuits alleging violations of the ADA. There were 223 separate complaints that alleged the same five causes of action: a federal ADA claim and the same four claims under California state law.2

The record reviewed by the court demonstrated that the plaintiffs and their attorneys participated in a pattern of abusive litigation bordering on extortionate shysterism. By requiring the architects of such a scheme to seek leave of court before filing any similar complaints, the court employed the least restrictive measure available to achieve the goal of protecting the public and the judicial system.3 The court believed that it must exercise its inherent power to protect the judicial system and the public from abusive and predatory litigation.4 A district court has the power and obligation to protect the public and efficient administration of justice from vexatious litigation.5

Within the federal statutory rules, the source for declaring one as a vexatious litigant could be found within the Federal Rules of Civil Procedure. The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or renewal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.6 If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a representative party, or both an appropriate sanction.7 Rule 11 of the Federal Rules of Civil Procedure expressly authorizes monetary and nonmonetary sanctions.

Local Rules of the U.S. District Court authorize sanctions against parties or counsel for failure to comply with those local rules.8 Within the Local Rules for the U.S. District Court of the Central District for California there is a section titled Vexatious Litigants.9 Of particular note is the fact that the federal rules specifically direct that the California statute be used as a point of reference. That section includes the following clear language:

Policy. It is the policy of the court to discourage vexatious litigation and to provide persons who are subjected to vexatious litigation with security against the costs of defending against such litigation and appropriate orders to control such litigation.10

Orders for Security and Control. On its own motion or on motion of a party... the [c]ourt may...order a party to give security...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....11

Findings. 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.12

Although not required, the court may proceed by reference to the vexatious litigants statute of the State of California.13

It is apparent that vexatious litigation is a problem not only in state courts but in federal courts as well. Equally clear is that both venues provide the means and mechanism for declaring one to be a vexatious litigant.--I.M.F. and A.B.F.

1 Molski v. Mandarin Touch Rest., 359 F. Supp 2d 924 (C.D. Cal 2005); The Americans with Disabilities Act of 1990, 42 U.S.C. §§12101 et seq. See also Eve Hill & Sheila Khan-Variba, "Challenging Barriers," Los Angeles Lawyer, Nov. 2005, at 31.
2 Molski, 359 F. Supp. 2d at 926.
3 Id. at 937.
4 Id. at 926-38.
5 In re Martin-Trigona, 737 F. 2d 1254, 1262 (2d Cir. 1984).
6 Fed. R. Civ. Proc. 11.
7 Id.
8 Fed. R. Civ. Proc. CACD Rule 83-7(c).
9 Id. at Rule 83-8.
10 Id. at Rule 83-8.1.
11 Id. at Rule 83-8.2.
12 Id. at Rule 83-8.3.
13 Id. at Rule 83-8.4; see also Code Civ. Proc. §§391-391.7.

 

Endnotes to main text

1 Code Civ. Proc. §391(b)(1).
2 Stolz v. Bank of Am. Nat'l Trust & Sav. Ass'n, 15 Cal. App. 4th 217, 220, 19 Cal. Rptr. 2d 19 (1993).
3 Childs v. Paine Webber Inc., 29 Cal. App. 4th 982, 35 Cal. Rptr. 2d 93 (1994).
4 Code Civ. Proc. §391(b)(2).
5 Tokerud v. Capitol Bank Sacramento, 38 Cal. App. 4th 775, 777, 45 Cal. Rptr. 2d 345 (1995).
6 Code Civ. Proc. §391(b)(3).
7 Code Civ. Proc. §391(b)(4).
8 Stolz v. Bank of Am. Nat'l Trust & Sav. Ass'n, 15 Cal. App. 4th 217, 220, 19 Cal. Rptr. 2d 19 (1993).
9 Id. at 221.
10 Tokerud, 38 Cal. App. 7th at 778.
11 Id. at 775.
12 Id. at 779.
13 Code Civ. Proc. §391(4)(d).
14 In Re Shieh, 17 Cal. App. 4th 1154, 21 Cal. Rptr. 886 (1993).
15 Say & Say, Inc. v. Ebershoff, 20 Cal. App. 4th 1759, 25 Cal. Rptr. 703 (1993).
16 In re Shieh, 17 Cal. App. 4th 1154.
17 Id. at 1166.
18 Id. at 1167.
19 Say & Say, 20 Cal. App. 4th at 1769.
20 Id. at 1759.
21 Id. at 1767.
22 Code Civ. Proc. §§391(4)(c), 391.1, 391.3, 391.7.
23 Code Civ. Proc. §§391.1, 391.7.
24 See Cal. R. Ct. 301 et seq.
25 Code Civ. Proc. §391.1.
26 If service is by mail, the required 16 days are increased by 5 calendar days for mail service that is within California. Code Civ. Proc. §1005(b); Cal. R. Ct. 317(a).
27 Cal. R. Ct. 312(c), 313.
28 Code Civ. Proc. §391.1.
29 Evid. Code §§451, §452(d).
30 Code Civ. Proc. §391.6.
31 Code Civ. Proc. §391.2.
32 Code Civ. Proc. §391.3.
33 Code Civ. Proc. §391.2.
34 Code Civ. Proc. §391.3.
35 Code Civ. Proc. §391(4)(c).
36 Devereaux v. Latham & Watkins, 32 Cal. App. 4th 1571, 1588, 35 Cal. Rptr. 2d 849 (1995).
37 Code Civ. Proc. §391.4.
38 Muller v. Tanner, 2 Cal. App. 3d 445, 465, 82 Cal. Rptr. 738 (1969).
39 Code Civ. Proc. §391.7(a).
40 Id.
41 Id.
42 Code Civ. Proc. §391.7(b).
43 Code Civ. Proc. §391.7(e).
44 Wilmot v. Commission on Prof'l Competence, 64 Cal. App. 4th 1130, 75 Cal. Rptr. 2d 656 (1998).
45 Id. at 1133 fn.2.
46 McColm v. Westwood Park Ass'n, 62 Cal. App. 4th 1211, 73 Cal. Rptr. 2d 288 (1998).
47 Id. at 1217.
48 First W. Devel. Corp. v. Superior Ct., 212 Cal. App. 3d 860, 261 Cal. Rptr. 116 (1989).
49 Id. at 870.

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