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Defense Strategies to Quell Vexatious Litigants

Have you been sued by someone who has filed numerous lawsuits in the past, without prevailing?  Does it seem like the plaintiff you are up against is gaming the system?  You may be up against a vexatious litigant.

Vexatious litigants are those who engage in civil proceedings without legitimate claims.  Section 391, subdivision (b)(3), defines a “vexatious litigant” as a person who “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 delay.” PBA, LLC v. KPOD, Ltd., 112 Cal. App. 4th 965, 974, 5 Cal. Rptr. 3d 532 (2d Dist. 2003); Bravo v. Ismaj, 99 Cal. App. 4th 211, 219 n.5, 120 Cal. Rptr. 2d 879 (4th Dist. 2002).  But, who qualifies as a vexatious litigant, and how do you go about determining if the plaintiff you are up against is one?

First, check to see what cases the litigant has filed in the past.  The vexatious litigant statutes apply to “litigation,” which is expressly defined as “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” Code Civ. Proc., § 391, subd. (a). The Legislature long ago drew a distinction between civil and criminal actions (Code Civ. Proc., § 24), and it gave them mutually exclusive statutory definitions (§ 683; Code Civ. Proc., §§ 30-31; In re Bittaker, 55 Cal. App. 4th 1004, 1009, 64 Cal. Rptr. 2d 679 (1st Dist. 1997). By expressly limiting the definition of “litigation,” for purposes of the vexatious litigant statutes, to “any civil action or proceeding,” the Legislature excluded criminal cases from the ambit of Code Civ. Proc. § 391 et seq. Thus, the vexatious litigant statutes may properly be employed only in civil cases. People v. Harrison, 92 Cal. App. 4th 780, 787, 112 Cal. Rptr. 2d 91 (5th Dist. 2001).  So, just because someone has a large criminal record does not mean that person will be considered a vexatious litigant.

Second, you may be fortunate enough to have the Plaintiff already be branded as a vexatious litigant.  To see, check the Vexatious Litigant List.  The list is from prefiling orders received from California Courts.  The list is prepared and maintained by the Administrative Office of the Courts, and can be found here: http://www.courts.ca.gov/documents/vexlit.pdf.

Should the litigant already be considered a vexatious litigant, the defendant may stay pending litigation by moving to require a vexatious litigant to furnish security if the court determines “there is not a reasonable probability” the plaintiff will prevail. Failure to produce the ordered security results in dismissal of the litigation in favor of the defendant. Bravo v. Ismaj, 99 Cal. App. 4th 211, 221, 120 Cal. Rptr. 2d 879 (4th Dist. 2002).

The reasoning behind this higher burden is that a litigant with a prior history of litigousness, bringing an action with no reasonable probability to prevail, is more likely to abuse the processes of the courts and to harass the adverse party than other litigants. Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43, 58, 61 Cal. Rptr. 2d 694 (3d Dist. 1997).

Doing some of the aforementioned homework can place a high burden on a vexatious litigant in order to bring a claim.  However, when a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter. Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43, 60, 61 Cal. Rptr. 2d 694 (3d Dist. 1997).  Therefore, no one should rely on a plaintiff’s status as being a vexatious litigant as a “sure thing” that the plaintiff will not be able to bring his or her claim against a defendant.  Even a broken clock is right twice a day.

ABOUT THE AUTHOR: Justin Evenson is an Associate at Tyson & Mendes. Mr. Evenson specializes in personal injury, premises liability, general liability, and employment litigation. Contact Justin at (858) 263-4066 or jevenson@tysonmendes.com.