HANDLING VEXATIOUS LITIGANTS
The words vexatious litigant stir up an emotional reaction in anyone who has confronted an abusive or harassing pro se plaintiff. But to be considered vexatious a litigant must really step over the line. Indeed, a judicial determination that a party is vexatious is a powerful tool for defense attorneys. Among other things, a court can require the litigant to post a bond to cover your client's court costs, and in extreme cases it can require the person to obtain court permission before filing another lawsuit. (See Cal. Code Civ. Proc. §§ 391.3, 391.7.)
In California, section 391 of the Code of Civil Procedure defines the qualifications of a vexatious litigant. Even though such status can bar a person from the courthouse, the statute has been held to be constitutional. (See Moran v. Murtaugh Miller Meyer & Nelson, LLP, 40 Cal. 4th 780 (2007); andWolfe v. George, 486 F.3d 1120 (9th Cir. 2007).)
In addition to the two core elements, the first of the four statutory scenarios requires that the plaintiff must have commenced or maintained at least five litigations within the past seven years that were either determined adversely to the plaintiff, or remained pending without good cause for two years without being brought to trial. (See Cal. Code Civ. Proc. § 391(b)(1).) Under California's fast-track rules (Cal. Gov. Code § 68600–68620) this latter scenario has become less common.
Knowing these requirements sets the stage. But what, specifically, must one do to have an opponent declared a vexatious litigant? Typically, the defendant (or cross-defendant) files a motion requesting such a finding. If a motion is filed prior to trial, the litigation will come to a halt pending the result of the motion (§ 391.6).
As noted above, the vexatious litigant statute and prefiling orders apply only to pro se plaintiffs and not to a plaintiff represented by counsel. But in Forrest v. Calif. Dept. of Corporations (150 Cal. App. 4th 183 (2007)) a lawsuit was filed on behalf of a vexatious litigant by an attorney who later withdrew from the case, leaving the vexatious litigant unrepresented. The plaintiff had been declared a vexatious litigant in 1994. In 2003 the plaintiff, acting in pro per, filed a wrongful-termination complaint. However, before the plaintiff served the pleading on the defendants, she retained counsel. Three days before trial, the attorney filed a motion to be relieved as counsel and to continue the trial. The motion to be relieved was granted and, after several trial continuances, when the plaintiff failed to retain new counsel, the court dismissed the case.
Even if a plaintiff has been declared vexatious and a prefiling order is in place, there is no absolute prohibition against filing new lawsuits. If it appears that a new case has merit and has not been filed for purposes of harassment or delay, the presiding judge must permit the case to proceed (§ 391.7(b)). As the courts have noted, "[w]hen a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter." (Luckett v. Panos, 161 Cal. App. 4th 77, 81 (2008).)
Federal cases recognize that "there is strong precedent establishing the inherent power of federal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances." (DeLong v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990).) The Ninth Circuit has recognized that under the All Writs Act (28 U.S.C. § 1651(a)), federal courts have inherent power to enjoin litigants who have abusive and lengthy histories (DeLong, 912 F.2d at 1147–48).
Michael C. Denison is a partner and civil litigator at the Los Angeles firm of Towle, Denison, Smith & Tavera.