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

Los Angeles Lawyer Magazine
February 2006

By Ira M. Friedman and Abby B. Friedman

E 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 sevenyear 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) unjusti- 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 reliti- gate 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.

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 ?ling, 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 certi?cate 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.
Federal Law Regarding Vexatious Litigants

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