• 9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

• Parent’s Rights & Children’s Bill of Rights Amdt 5.4.5.6.2 Parental and Children’s Rights – Fifth Amendment

• Malicious Use of Vexatious Litigant – Civil Right$ Violation Check – Vexatious Litigant Order Reversed

• California’s Vexatious Litigant Law

• Are CA family courts declaring pro se parents Vexatious Litigants to force them to hire a lawyer?

• Marco Gonzalez – Petitioner, vs. Panda Restaurant Group Inc.
  Respondent On Petition for a Writ of Certiorari to the California Supreme Court

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

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]

• 9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

• Parent’s Rights & Children’s Bill of Rights Amdt 5.4.5.6.2 Parental and Children’s Rights – Fifth Amendment

• Malicious Use of Vexatious Litigant – Civil Right$ Violation Check – Vexatious Litigant Order Reversed

• California’s Vexatious Litigant Law

• Are CA family courts declaring pro se parents Vexatious Litigants to force them to hire a lawyer?

• Marco Gonzalez – Petitioner, vs. Panda Restaurant Group Inc.
  Respondent On Petition for a Writ of Certiorari to the California Supreme Court

The cost of litigation in the United States can be extreme and even a party that defends a case and wins often faces significant damages in the time lost and the expense of the defense. It is not uncommon for even a simple civil case to cost hundreds of thousands of dollars to defend.

Thus, a party who is repeatedly sued by the same party and wins still suffers significant costs and there are persons who are prone to file suit, often representing themselves, on a repeated basis. Some people are addicted to litigation. Others are convinced that they are right and will keep finding excuses to sue if they can. Often they are insolvent and thus represent themselves and get special waivers of filing fees from the courts because they are indigent. Meanwhile, the defendant(s) continue to pay large amounts of money on defense and have no choice as to whether to incur the defense costs.

The legislature has recognized that these types of litigants can abuse defendants and waste court resources. Thus, the legislature has enacted certain laws that can make it more difficult for a person defined as a “vexatious litigant” to use the Courts.

Since the right to use our legal system is a right treasured by the citizens, the government has enacted various protections before a person can be so defined and even a vexatious litigant can still use the Courts…subject to certain restrictions.

Note that the definition presumes the vexatious litigant is acting without legal counsel (“in propria personsa”.)  It is assumed that the cost of hiring legal counsel would act as a disincentive to any possible vexatious litigant thus only those representing themselves are so defined.

Vexatious Litigant Defined:

Code Civ. Proc. § 391(b) defines a vexatious litigant as a person who does any of the following:

(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.

(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.

(3) 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 unnecessary delay.

(4) 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.

Prefiling Order Pursuant to Code Civ. Proc. § 391.7:

In addition to other relief, the court may, on its own motion or the motion of any party, enter a prefiling order that prohibits a vexatious litigant from filing any new litigation in California in pro per without first obtaining permission from the presiding justice or presiding judge of the court where the filing is proposed. (Code Civ. Proc. § 391.7(a).) A vexatious litigant who disobeys such a prefiling order may be punished for contempt of court. (Ibid.) The presiding justice or presiding judge should permit the filing of such litigation only if it appears that the litigation has merit and is not being filed for the purpose of harassment or delay. (Code Civ. Proc. § 391.7(b).) The presiding justice or presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants, as provided in Code Civ. Proc. § 391.3. (Ibid.)

A vexatious litigant subject to a prefiling order under Code Civ. Proc., § 391.7 may file an application to vacate the prefiling order and remove his or her name from the Judicial Council’s list of vexatious litigations subject to prefiling orders. (Code Civ. Proc., § 391.8(a).) A court may vacate a prefiling order and order removal of a vexatious litigant’s name from the Judicial Council’s list of vexatious litigants subject to prefiling orders upon a showing of a material change in the facts upon which the order was granted and that the ends of justice would be served by vacating the order. (Code Civ. Proc., § 391.8(c).) However, a vexatious litigant whose application under subdivision (a) was denied shall not be permitted to file another application on or before 12 months has elapsed after the date of the denial of the previous application. (Code Civ. Proc., § 391.8(b).)

Defendant’s Motion During the Case:

In any litigation pending in any California court, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Code Civ. Proc. § 391.3. (Code Civ. Proc. § 391.1.) The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant. (Ibid.)

At the hearing upon the motion, the court shall consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion. (Code Civ. Proc. § 391.2.) Except for an order dismissing the litigation pursuant to subdivision (b) of Code Civ. Proc. § 391.3, no determination made by the court in determining or ruling upon the motion shall be or be deemed to be a determination of any issue in the litigation or of the merits thereof. (Ibid.)

Code Civ. Proc. § 391.3 provides:

(a) Except as provided in subdivision (b), if, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix.

(b) If, after hearing evidence on the motion, the court determines that the litigation has no merit and has been filed for the purposes of harassment or delay, the court shall order the litigation dismissed. This subdivision shall only apply to litigation filed in a court of this state by a vexatious litigant subject to a prefiling order pursuant to Section 391.7 who was represented by counsel at the time the litigation was filed and who became in propria persona after the withdrawal of his or her attorney.

(c) A defendant may make a motion for relief in the alternative under either subdivision (a) or (b) and shall combine all grounds for relief in one motion.

If security that has been ordered furnished is not furnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished. (Code Civ. Proc. § 391.4.)

Note that the Judicial Council of California keeps a list of those deemed vexatious litigants.

Conclusion:

Access to the courts is a right that is not easily restricted in the United States and most judges will only classify a party as a vexatious litigant when the evidence is clear. Further, many critics of the current system complain that the criteria to have one so classified requires the long suffering defendants to spend tens or hundreds of thousands in defense costs before such a motion will be entertained by the courts.

Nevertheless, such relief is possible and our firm has been successful in achieving such classification in past cases in state courts…and once achieved the classified party will have extreme difficulty in proceeding. It is perhaps noteworthy that one of the parties we had so classified then sued the California Superior Court and the California Supreme Court, claiming that there was a conspiracy against her.

That action was not allowed to proceed…since she was a vexatious litigant. source

WHO IS CONSIDERED A VEXATIOUS LITIGANT IN CALIFORNIA?

The California Code of Civil Procedure, Section 391 defines vexatious litigants as:

• A person who has filed at least five litigations, other than in small claims courts, which have either been ruled against them, or have been pending in court for more than two years without being brought to trial.

• A person who is repeatedly trying to sue the defendant of a previous litigation, to whom they have lost the verdict, by contesting the cause of action or the validity of the ruling.

• A person who repeatedly engages in tactics like baseless motions, discoveries, or documents, with the sole purpose of delaying the proceedings.

• A person who has been declared as a vexatious litigant by any state or federal court on these or similar grounds.

Generally speaking, vexatious litigants are people who repeatedly file lawsuits or petitions without merit and have only flimsy evidence to support their claims. Their sole intention is to harass or subdue the defendant by unnecessarily prolonging court proceedings till the defendant gives in and agrees to settle.

Here are some examples of frivolous lawsuits:

• An obese person suing the doors of your commercial or residential property because of the small size of doors.

• A tenant suing the landlord to claim compensation for a false or exaggerated injury.

• A thief breaking into your rental and suing you because they hurt themselves while trying to rob the place.

• A tenant who believes that they have been discriminated against during the screening process.

These litigants look for the most trivial excuses to sue the landlords and receive huge amounts in settlement. Let us see how California’s law deals with such people.

CALIFORNIA’S VEXATIOUS LITIGANT STATUTE UNDER SECTION 391

The legal system in any state or country is to protect the rights of people and encourage them to readdress any harm caused by any other person. The same applies to the California legal system. It values justice and allows people to file lawsuits against the offender to get justice. However, dealing with cases and the people who file one can be taxing and expensive, mainly when people sue you without any practical or logical reason.

The judicial council of California understands the seriousness of the problem and prevents such litigants from filing such unreasonable lawsuits. If you have been sued by any litigant maliciously, the law allows you to countersue them, prove your innocence and ask for compensation for the damage from the lawsuit. Here are some steps to protect yourself from vexatious litigants.

1. Prefiling Order

Under section 391.7, the defendant can approach the court and enter a prefiling order against a vexatious litigant. This prohibits the litigant from filing any new lawsuits against the defendant in California. All the litigants subject to the prefiling order must comply with it as there can be serious repercussions otherwise. So, if you are facing constant harassment from any of your tenants, you can have the court issue a prefiling order against them.

2. Get Judicial Permission

Although a prefiling order may stop litigants from lodging unreasonable complaints, the presiding judge can still allow the litigant to proceed if it appears that their litigations have merit. At the same time though, the judge is expected to ensure the defendant’s security while allowing litigants to file complaints.

The court clerk also can’t file litigation presented by vexatious litigants unless they receive an order from the presiding judge permitting them to fill. The clerk should provide a copy of the vexatious litigants’ list and prefiling order to the judicial council.

3. Know About Your Defendant’s Rights

A defendant can make a motion to request security during any pending litigation in any California court. However, before that, the defendant must show that the offender is a vexatious litigant. Once a defendant requests security, the case is halted until the court determines that they are vexatious litigants. Once the court finds that the lawsuit is filed without any valid reason, it will order the plaintiff to provide security to the defendant.

4. Repercussion Of Disobeying Prefiling Order

According to California Civil Law, all vexatious litigants subject to pre-filing orders must stop filing invalid complaints against other people. Litigants who disobey such charges can be punished for contempt of court. They might even need to pay any defamation or libel charges or legal expenditure that the other party has incurred.

HOW TO REMOVE A NAME FROM THE LIST OF VEXATIOUS LITIGANTS?

Under Code of Civil Procedure section 391.7, the judicial council maintains a list of vexatious litigants and updates it monthly. The judicial council staff disseminates the list of people who are subject to pre-filing orders online.

Vexatious litigants may apply in court to remove their names from the list. The application should be filed in the same court where the prefiling order was entered. They should present the application before the same judge who had issued the order. In the absence of the judge or justice, litigants can submit an application before the presiding judge.

The court may vacate the prefiling order or remove the name of the applicants from the vexatious litigant’s list if there is a material change in the facts based on which the order was granted, provided the litigant has served the order of vacating.

If the application is approved, the litigant’s name will be struck off the list. On the other hand, if the person’s application is rejected by the court, they cannot file another application until 12 months from the date of rejection.

FORMS REQUIRED FOR FILING A LAWSUIT UNDER THE VEXATIOUS LITIGANTS STATUTE

There are different forms that you may need during the application process.

Forms

• VL-100, Prefiling Order—Vexatious Litigant.

  This mandatory Judicial Council form is to be used by the courts or a party when declaring a person or organization a vexatious litigant requiring a prefiling order.

• VL-110, Request to File New Litigation by Vexatious Litigant

  This optional form may be used by an individual that has been determined to be a vexatious litigant and who must obtain prior court approval to file any new litigation in which the vexatious litigant is not represented by an attorney. Filing new litigation means (1) commencing any civil action or proceeding, or (2) filing any petition, application, or motion (except a discovery motion) under the Family or Probate Code in the courts of California.

• VL-115, Order to File New Litigation by a Vexatious Litigant

  This new optional form is the order portion of Request to File New Litigation by Vexatious Litigant (form MC-701).

• VL-120, Application for Order to Vacate Prefiling Order and Remove Plaintiff/Petitioner from Judicial Council Vexatious Litigant List

  This new optional form may be used by a vexatious litigant to ask to be removed from the list of vexatious litigants who must obtain prefiling approval.

• VL-125, Order on Application to Vacate Prefiling Order and Remove Plaintiff/Petitioner from Judicial Council Vexatious Litigant List

  This new optional form is an order to be used to grant or deny the vexatious litigant’s request to be removed from the list.

HOW TO DEAL WITH VEXATIOUS TENANTS

The best way to avoid dealing with vexatious tenants is by ensuring that such cases do not occur altogether. Communication is key here. Landlords should make it a point to communicate every single detail about the rental with the tenant, so that they do not have any opportunity to complain.

Even so, there are going to be some troublemakers who sue you for silly reasons. Here’s how you can deal with such vexatious litigants.

• Stay calm and don’t panic

Panicking about the situation is likely to make it worse. Remember that such lawsuits are very common. Some people simply have a vindictive nature and wish to cause mental anguish and monetary loss. However, if you stay calm and focused while facing a clearly crazy lawsuit, the ruling is likely to be in your favor.

• Trust the discretion of the court and California’s legal system

Judges see such cases all the time and are very quick to recognize and dismiss a frivolous lawsuit. Do not get angry or agitated if the process seems to be moving a bit slowly. Get an attorney who is knowledgeable in the area and file all the required motions ahead of time.

• Collect all documents and evidence

In most cases, a frivolous lawsuit may be dismissed even without being heard, but if things do go ahead, make sure that you have all the case-related documents and evidence in place. This includes any type of communication you might have had with the tenant, bank receipts, tickets, and so on.

• Get expert legal counsel

Even in case of a frivolous lawsuit, you need to ensure that you follow all legal procedures to the letter. Do not try to deal with it on your own. Seemingly small litigations can blow up into bigger cases if not handled properly at the start. So, get a professional attorney, who has dealt with such cases before, and make sure you build a solid case. source

• 9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

• Parent’s Rights & Children’s Bill of Rights Amdt 5.4.5.6.2 Parental and Children’s Rights – Fifth Amendment

• Malicious Use of Vexatious Litigant – Civil Right$ Violation Check – Vexatious Litigant Order Reversed

• California’s Vexatious Litigant Law

• Are CA family courts declaring pro se parents Vexatious Litigants to force them to hire a lawyer?

• Marco Gonzalez – Petitioner, vs. Panda Restaurant Group Inc.
  Respondent On Petition for a Writ of Certiorari to the California Supreme Court