Eventually, it happens to us all.  Somehow or other, we end up in court facing a vexatious litigant—a person who, acting in pro per, repeatedly pursues meritless law suits or frivolous pleadings, motions, and discovery.  Ordinarily, this happens when a vexatious litigant sues, and we attorneys spend incredible (if unavoidable) amounts of time and money trying to extricate our clients from the fray.

California’s statutes, however, exist to reduce this risk to the unwary public, creating procedural obstacles to the filing of meritless litigation by individuals found to be vexatious litigants.  (See Code Civ. Proc., §§ 391-391.7.)  Once a person has been declared a vexatious litigant, he or she cannot file a new lawsuit in pro per in a California court without getting prior approval from the presiding judge or justice.  (See Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169-1170.)  The same pre-filing requirements apply when a vexatious litigant attempts to appeal in pro per from an adverse judgment in a case in which he or she was the plaintiff.  (See Mahdavi v. Superior Court (2008) 166 Cal.App.4th 32, 41.)

From time to time, however, clients have the misfortune of suing a vexatious litigant, and California law places no limits on the vexatious defendant’s response to being sued.  Often, the same frivolous motions, discovery, and general misconduct attend a vexatious defense, just like in a vexatious lawsuit.  Even so, the law understandably allows vexatious litigants to defend themselves from liability on the same terms as any other citizen.

Still, there has been disagreement amongst California Courts of Appeal about whether a vexatious defendant’s appeal from an adverse judgment should be constrained by the pre-filing requirements a vexatious plaintiff faces.  An appeal can be viewed as an extension of a defendant’s effort to resist a plaintiff’s claims.  But filing an appeal is also an affirmative choice and presents risks of abusive conduct similar to those arising from the filing of a complaint.

On April 21, the California Supreme Court chose the former view over the latter in John v. Superior Court, 17 C.D.O.S. 3888, Case No. S222726.  Focusing on a plain-language analysis, the Court held that the vexatious-litigant statutes were expressly designed to protect “defendants” from vexatious “plaintiffs.”  And it rejected an argument based on In re R.H. (2009) 170 Cal.App.4th 678, that an appellant should be considered a “plaintiff” in the context of an appeal.

The Court’s decision makes sense from the perspective of statutory construction, but fails to meaningfully confront the policy concern raised in R.H. that the vexatious-litigant statutes exist not only to protect defendants, but to “curb misuse of the court system.”  In any event, barring a legislative fix, attorneys should be aware of this risk and counsel their clients whenever possible to think twice before suing a vexatious litigant.  At the very least, this should be done when the vexatious litigant status can be readily ascertained.

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Adam Hofmann
Adam represents both public and private clients in civil writs, appeals, and mandate proceedings, as well as traditional litigation and dispute resolution. In addition, Adam is an adjunct professor teaching courses in local government and land use law at the University of San Francisco School of Law.