The words vexatious litigant stir up an emotional reaction in anyone who has confronted an abusive or harassing pro se plaintiff. But to be considered vexatious a litigant must really step over the line. Indeed, a judicial determination that a party is vexatious is a powerful tool for defense attorneys. Among other things, a court can require the litigant to post a bond to cover your client's court costs, and in extreme cases it can require the person to obtain court permission before filing another lawsuit. (See Cal. Code Civ. Proc. §§ 391.3, 391.7.)
What, Me Vexatious?
In California, section 391 of the Code of Civil Procedure defines the qualifications of a vexatious litigant. Even though such status can bar a person from the courthouse, the statute has been held to be constitutional. (See Moran v. Murtaugh Miller Meyer & Nelson, LLP, 40 Cal. 4th 780 (2007); and Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007).)
Under section 391, a vexatious litigant typically is a pro se plaintiff who has (1) lost at least five pro se lawsuits in the preceding seven years, (2) sued the same defendant for the same alleged wrong after losing, (3) repeatedly filed meritless papers, or (4) used frivolous tactical devices or already been declared a vexatious litigant for similar reasons. (Cal. Code Civ. Proc. § 391(b); Wolfe, 486 F.3d at 1124.) Because the statute uses the disjunctive or, the court must separately evaluate each of the four factual scenarios.
However, two core elements must exist before the court even gets to the four scenarios listed above. First, the person must be a plaintiff or a "plaintiff equivalent." The term plaintiff means the person who commences, institutes, or maintains litigation or who causes it to commence, institute, or maintain, including an attorney acting in pro per. A plaintiff equivalent may be someone who has filed a cross complaint (Cal. Code Civ. Proc. § 391(d)). The phrase vexatious litigant does not apply to attorneys representing clients. (Weissman v. Quail Lodge Inc., 179 F.3d 1194, 1197 (9th Cir. 1999)). Although no published opinion has applied the label to a defendant who is not also a cross-complainant or an appellant, courts have applied section 391(b)(2) and (3) to defendants. For brevity, “plaintiff” will be used in this article to refer to the party against whom the vexatious litigant order is sought.
A second core element is that the person must be acting without counsel. Thus, to be declared a vexatious litigant the person must be appearing in propria persona, or be referenced in the court filings as appearing in pro per or pro se. If a lawyer represents the party in the subject litigation, the vexatious litigant statute does not apply.
Whenever an unrepresented litigant seems to be out of control, consult section 391 to determine if relief is available.
Four Statutory Requirements
In addition to the two core elements, the first of the four statutory scenarios requires that the plaintiff must have commenced or maintained at least five litigations within the past seven years that were either determined adversely to the plaintiff, or remained pending without good cause for two years without being brought to trial. (See Cal. Code Civ. Proc. § 391(b)(1).) Under California's fast-track rules (Cal. Gov. Code § 68600–68620) this latter scenario has become less common.
The vexatious litigant statute defines litigation as "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (See Cal. Code Civ. Proc. § 391(a).) Because the requirement is based on specific numbers, strict compliance is the order of the day. Four or fewer adverse litigations in the past seven years won't qualify; nor will five adverse litigations if one of them lies beyond the seven-year cutoff. Nor will five adverse litigations in the past seven years qualify if the plaintiff was represented by counsel in one or more instances. In short, litigants can't be a little vexatious. In the law's eye, they are either vexatious or they aren't.
The second scenario under section 391 involves attempts to relitigate issues after a prior case went against the plaintiff (§ 391(b)(2)). Unlike the first scenario, only a single prior adverse result is required. The subsequent case must be an attempt to relitigate the prior dispute against the same defendants: It must be another bite of the same apple—relitigation of the same, and already determined, cause of action, claim, controversy, or issue of fact or law.
The third scenario occurs when a pro per litigant repeatedly files non-meritorious motions, pleadings, or other court papers; conducts unnecessary discovery; or engages in tactics that are frivolous or solely intended to cause unnecessary delay (§ 391(b)(3)). In contrast to the first two scenarios, this one requires no prior adverse litigation at all; it is appropriate for claiming vexatious litigant status based entirely on conduct within the present lawsuit.
No bright-line rule exists to define "repeatedly" or "non-meritorious" under section 391(b)(3), so the determination resides within the discretion of the trial court. The court's discretion is not unfettered. Most cases affirming a vexatious litigant designation for repeatedly filing non-meritorious motions have involved numerous motions during a single case (Morton v. Wagner, 156 Cal. App. 4th 963, 971–72 (2007)). In one instance, 20 motions were sufficient (Bravo v. Ismaj, 99 Cal. App. 4th 211, 225 (2002)). In another, three motions over three years did not make the grade (Morton), though the court did clarify that three motions might be sufficient under different circumstances.
In addition, note that non-meritorious is not synonymous with unsuccessful. The repeated motions must be so devoid of merit and so frivolous that they constitute a flagrant abuse of the system. They must have no reasonable probability of success, and the court must find that they clearly were an attempt to "abuse the processes of the courts and to harass the adverse party. ..." (Morton, 156 Cal. App. 4th at 972.)
The fourth scenario provides that a person can qualify as a vexatious litigant if he or she 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." (Cal. Code Civ. Proc. § 391(b)(4).)
Knowing these requirements sets the stage. But what, specifically, must one do to have an opponent declared a vexatious litigant? Typically, the defendant (or cross-defendant) files a motion requesting such a finding. If a motion is filed prior to trial, the litigation will come to a halt pending the result of the motion (§ 391.6).
The authority for the motion lies in section 391.1, which provides that in any pending litigation, at any time prior to final judgment, a defendant may move that the court, upon notice and hearing, require the plaintiff to furnish security. For purposes of the statute, security means an undertaking (usually in the form of a bond) to assure payment of the moving party's reasonable expenses, including attorneys fees (§ 391(c)). To succeed, the motion must establish both that the plaintiff is a vexatious litigant under one of the four scenarios and that there is no reasonable probability the plaintiff will prevail in the present case against the moving defendant.
In addition to seeking security, the moving party can request (or the court on its own motion can issue) an order that prohibits the plaintiff from filing any new litigation in a California court in propria persona without permission from the presiding judge (§ 391.7(a)).
At the motion hearing, the court considers relevant written or oral evidence furnished by witnesses or affidavits (§ 391.2). If the court determines that the plaintiff is vexatious and that there is no reasonable probability that the plaintiff will prevail in the present case, the court shall order the plaintiff to furnish security in an amount set by the court.
Once a vexatious litigant order is on file, the clerk of the court is not supposed to permit the plaintiff to file any new litigation without an order from the presiding judge. If the clerk mistakenly permits a new filing, any party may file a notice that the plaintiff is a vexatious litigant, which automatically stays the litigation and results in an automatic dismissal unless the plaintiff obtains the required filing order from the judge within ten days (§ 391.7(c)).
In every case in which the court issues a prefiling order, the clerk must provide the California Judicial Council with a copy so it can update the statewide index of vexatious litigants it maintains (§ 391.7(e)).
Vexatious litigant orders have teeth because if security is not furnished as ordered, the litigation must be dismissed (§ 391.4; Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43, 47 (1997)). In addition, disobedience of the prefiling order can be punished as contempt of court (§ 391.7(a)).
Counsel for the Plaintiff
As noted above, the vexatious litigant statute and prefiling orders apply only to pro se plaintiffs and not to a plaintiff represented by counsel. But in Forrest v. Calif. Dept. of Corporations (150 Cal. App. 4th 183 (2007)) a lawsuit was filed on behalf of a vexatious litigant by an attorney who later withdrew from the case, leaving the vexatious litigant unrepresented. The plaintiff had been declared a vexatious litigant in 1994. In 2003 the plaintiff, acting in pro per, filed a wrongful-termination complaint. However, before the plaintiff served the pleading on the defendants, she retained counsel. Three days before trial, the attorney filed a motion to be relieved as counsel and to continue the trial. The motion to be relieved was granted and, after several trial continuances, when the plaintiff failed to retain new counsel, the court dismissed the case.
On appeal, the court held that the requirements of a prefiling order under section 391.7 remain in effect throughout the life of a lawsuit, and therefore such an order permits dismissal at any point when a vexatious litigant proceeds without counsel or without permission of the presiding judge (Forrest, 150 Cal. App. 4th at 197).
Even if a plaintiff has been declared vexatious and a prefiling order is in place, there is no absolute prohibition against filing new lawsuits. If it appears that a new case has merit and has not been filed for purposes of harassment or delay, the presiding judge must permit the case to proceed (§ 391.7(b)). As the courts have noted, "[w]hen a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter." (Luckett v. Panos, 161 Cal. App. 4th 77, 81 (2008).)
Moreover, a vexatious litigant determination is not permanent in another sense: A prefiling order may be lifted, modified, or removed on an application by the vexatious litigant (Luckett, 161 Cal. App. 4th at 80–81). The Luckett court duly noted that "fundamental fairness requires the 'vexatious litigant' brand be erasable in appropriate circumstances." (161 Cal. App. 4th at 82.) The court then provided a road map for future cases. "[E]rasure requires substantial evidence that the vexatious litigant has mended 'his ways or conduct' " (161 Cal. App. 4th at 83), which requires the applicant to establish the following: (1) that he or she has a propensity for honesty, including an accurate reckoning with the facts on which the prior finding was made and a notification of any change in financial condition; (2) that he or she has some genuine remorse for the costs of litigation inflicted on the defendants; (3) that he or she has made some genuine effort at restitution to the previous victims; and (4) that he or she actually has given up the habit of suing people as a way of life, including making "efforts at obtaining gainful employment." (161 Cal. App. 4th at 93–94.)
Perhaps recognizing vexatious litigants' propensity for forum shopping, the Luckett court further opined that "any attempt to erase a vexatious litigant prefiling order should be brought in the forum that originally entered the prefiling order." (161 Cal. App. 4th at 95.)
Federal cases recognize that "there is strong precedent establishing the inherent power of federal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances." (DeLong v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990).) The Ninth Circuit has recognized that under the All Writs Act (28 U.S.C. § 1651(a)), federal courts have inherent power to enjoin litigants who have abusive and lengthy histories (DeLong, 912 F.2d at 1147–48).
Within the Ninth Circuit, several trial courts have adopted a vexatious litigant rule that "provides that the court may 'proceed by reference to the Vexatious Litigants statute of the State of California." (See Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1197 (9th Cir. 1999) (citing Central District Local Rule 27A.4 [presently Local Rule 83–8]).) The Eastern District of California also has adopted the California vexatious litigant statute "as a procedural Rule ... on the basis of which the Court may order the giving of security, bond or undertaking. ..." (See Eastern District Local Rule 65.1–151(b).)
Federal courts typically apply five factors to determine vexatious litigant status, but they are not the same factors as set forth in the California statute. The factors utilized in the Ninth Circuit stem from a Second Circuit opinion. (See Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1051 (9th Cir. 2007).) The factors include (1) the litigant's history of litigation and, in particular, whether it entailed vexatious, harassing, or duplicative suits; (2) the litigant's motive in pursuing the litigation—for example, whether the litigant had a good faith expectation of prevailing; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused unnecessary expense to the parties or placed a needless burden on the courts; and (5) whether other sanctions would be adequate to protect the courts and other parties (Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)).
The Ninth Circuit reviews vexatious litigant orders under a four-part test established in DeLong. The test requires that the trial court afford the plaintiff minimum due process notice, an opportunity to be heard, and an adequate record for review, which should include a showing "that the litigant's activities were numerous and abusive." The trial court must make "substantive findings as to the frivolous or harassing nature of the litigant's actions," and the order must be "narrowly tailored to closely fit the specific vice encountered." (DeLong at 1147–48.)
Having someone declared vexatious does not make up for the cost and emotion expended in defending abusive and burdensome litigation. Nevertheless, a vexatious litigant order can help protect against future misconduct.
On the other side of the courtroom, pro se plaintiffs who have been declared vexatious are not denied access to judicial remedies. They simply must establish that their new lawsuits have merit. And, if they desire once again to enjoy unrestricted access to the courts, they must prove that they have mended their ways
Michael C. Denison is a partner and civil litigator at the Los Angeles firm of Towle, Denison, Smith & Tavera.