Malicious Use of Vexatious Litigant –
Vexatious Litigant Order Reversed
A state prison inmate was declared a vexatious litigant and when he failed to furnish security in his pending case, the trial court dismissed it. On appeal, the prisoner argued that five of the actions which the trial court considered in determining he was a vexatious litigant, were not “litigations . . .finally determined adversely” to him as required by Code of Civil Procedure section 391, because they were merely lodged and not accepted for filing by the federal court after his requests for in forma pauperis status were denied. In reversing the dismissal of the instant action, the appellate court noted that in five of the cases filed by the prisoner, “no complaint was ever filed and, therefore, no action or proceeding was ever commenced” as required by section 391. (Garcia v. Lacey (Cal. App. Fifth Dist.; November 12, 2014) 231 Cal.App.4th 402, [180 Cal.Rptr.3d 45].) source
Wolfe v. George With respect to a First Amendment claim, the Court must first determine whether the Vexatious Litigant Statute actually encroaches upon a right guaranteed by the First Amendment. The United States Supreme Court has long recognized that the right to petition for a redress or grievance is a liberty safeguarded by the Bill of Rights and is intimately connected both in origin and in purpose with the other First Amendment rights of free speech and free press. United Mine Workers of America, Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967). However, the Supreme Court has also consistently held that “baseless litigation is not immunized by the First Amendment right to petition.” Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 743 (1983) (“[S]ince sham litigation by definition does not involve a bona fide grievance, it does not come within the first amendment right to petition.”). In fact, as the Supreme Court stated in Bill Johnson’s Restaurants, “The first amendment interests involved in private litigation — compensation for violated rights and interest, the psychological benefits of vindication, public airing of disputed facts — are not advanced when the litigation is based on intentional falsehoods or on knowingly frivolous claims.” Id.
The First Amendment is “incorporated” against the states by virtue of the Fourteenth Amendment. Hague v. C.I.O., 307 U.S. 496, 512-13 (1939).
the statute is only implicated once the state court has concluded that there is “no reasonable probability that [the plaintiff] will prevail in the litigation against the moving defendant.”Cal. Code Civ. Proc. § 391.3. Further, even when a plaintiff has been declared a vexatious litigant, the statute does not preclude a plaintiff from filing subsequent lawsuits, so long as those lawsuits have merit! See Cal. Code Civ. Proc. § 391.7; see Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43, 60 (1997) (“When a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter.”) Thus, to the extent that Plaintiff’s argument is premised on his belief that the Vexatious Litigant Statute encroaches upon a First Amendment right because it is a prohibitive ban on meritorious litigation, his argument is fatally flawed. The Vexatious Litigant Statute is not, as Plaintiff contends, an absolute ban on the right to petition for grievances.
The court was required to assess the merits of the petition before refusing to file it under the prefiling order, we direct the trial court to file the petition and evaluate it in accordance with habeas corpus procedure. ( People v. Duvall, supra, 9 Cal.4th at pp. 474-479.)
Bravo v Ismaj 2002 – [7] Under our state Constitution, a party must generally prove he or she was prejudiced by an error to obtain a reversal. (Cal. Const., art. VI, § 13.) An exception to this rule applies if the defendant was denied a fair hearing. [99 Cal. App. 4th 226] (Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 677.) [6b]
the significant consequences that result from the outcome of a motion to declare a litigant vexatious support that a party is entitled to an oral hearing, regardless of whether the defendant is seeking security or a prefiling order. (See McColm v. Westwood Park Assn., supra, 62 Cal.App.4th at p. 1216, fn. 4; TJX Companies, Inc. v. Superior Court, supra, 87 Cal.App.4th at pp. 750-751.)
[7] Under our state Constitution, a party must generally prove he or she was prejudiced by an error to obtain a reversal. (Cal. Const., art. VI, § 13.) An exception to this rule applies if the defendant was denied a fair hearing. [99 Cal. App. 4th 226] (Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 677.) [6b]
Pierce v. Cantil-Sakauye Id. at 383. Instead, it calls for an individualized determination that a litigant is vexatious based on specific instances of harassing or frivolous litigation tactics. SeeCal. Civ. Proc. Code § 391(b); Wolfe v. George, 486 F.3d 1120, 1124-25 (9th Cir. 2007); see also Cal. Civ. Proc. Code §§ 391.2-391.3. It then requires a court to examine a pro se parent’s proposed filings to ensure that “the litigation has merit and has not been filed for the purposes of harassment or delay” before allowing the parent to seek a custody-order modification. SeeCal. Civ. Proc. Code § 391.7(b); George, 486 F.3d at 1126-27. And if a court orders a vexatious litigant to post security, see Cal. Civ. Proc. Code. § 391.7(b), it must “make an individualized determination of the appropriate amount.” George, 486 F.3d at 1126-27 (citing Cal. Civ. Proc. Code § 391.3).
Nor does applying the VLS to parents in custody disputes “destroy permanently all legal recognition of the parental relationship.” M.L.B. v. S.L.J., 519 U.S. 102, 128 (1996). It does pose an additional hurdle to modifying a custody order, but only after the litigant has been found to be vexatious. The statute therefore does not unnecessarily perpetuate the “unique kind of deprivation” that imposing record preparation fees on parents appealing parental status termination decrees did. See id. at 127.
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