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May 6, 2007

California Appellate Court Splits on Vexatious Litigant Statute

California has a statute that permits judges to certify someone as a vexatious litigant.  As a consequence, she can't file any "new litigation" without first getting a judge's permission.  More specifically, under California Code of Civil Procedure 391.7, “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 a prefiling order is punishable as contempt. (§ 391.7, subd. (a).)

Litigant A gets declared a "vexatious litigant" and then files another suit while being represented by counsel.  Counsel then withdraws.  The district court relies on the statute above to dismiss the suit.  The appellate court affirms, with one judge dissenting, in Forrest v. State, __ P.3d __ (Cal. App. 2d Dist. Apr. 25, 2007).  The majority held that the statute meant that, after the declaration of "vexatious litigant," the person could only file a suit if either (a) she gets permission if unrepresented or (b) she is represented throughout the subsequent litigation by a lawyer.  The dissent strongly disagreed, focusing in on the plain meaning of "file" and chastising the majority for reading the statute to say what they wanted it to say, rather than what it did say:

Because the statute did not seem to address the facts at hand (surely, it did not), the dissent turned to various public policy arguments to conclude that it did not apply.  Quite an interesting read, and a close question, I think, overall.  The majority clearly did not adequately address the lack of textual support for their conclusion, but whether the balancing of public policies -- if appropriate -- performed by the dissent is correct is also, itself, a closer question.

The applicability of section 391.7 to this case is anything but clear. The statute refers to the “fil[ing]” of “litigation.” The term “file” is not defined in the vexatious litigant statutory scheme. “File” has been defined as “[t]o deposit in the custody or among the records of a court. To deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file by him as a matter of record and reference in the proper place.” (Black’s Law Dict. (6th ed. 1990) p. 628, col. 1.) “Filing with court” is defined as “[d]elivery of legal document to clerk of court or other proper officer with intent that it be filed with court.” (Black’s Law Dict., supra, p. 628, col. 2.) “Litigation” is defined in section 391, subdivision (a), as “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” Simply put, the narrow definition of filing is incongruous with the broad definition of litigation; i.e., “litigation” encompasses much more than things that are filed. But the Legislature referred to the filing of “litigation,” a word it defined broadly in section 391. This creates an ambiguity as to whether the Legislature intended a prefiling order to curb just the filing of a new case, or also the continuing litigation of a case.

May 6, 2007 in Current Affairs | Permalink


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bad law for parents

Posted by: larry campbell | May 19, 2008 10:32:21 AM

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