BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 731 (Committee on Judiciary)
As Introduced
Hearing Date: March 22, 2011
Fiscal: No
Urgency: No
EDO
SUBJECT
Civil Actions
DESCRIPTION
This bill would clarify that existing law relating to vexatious
litigants applies to matters in the Courts of Appeal. This bill
would create a process for the courts to follow when a vexatious
litigant seeks removal from Judicial Council's vexatious
litigant list.
This bill would also make changes to the judicial arbitration
program by allowing parties to file a request for dismissal
following a satisfactory arbitration, as well as other changes
as specified.
BACKGROUND
Existing law authorizes a court to declare a person a vexatious
litigant when that person represents him or herself and who has
repeatedly abused the legal system by doing any of the
following: (1) filed at least five lawsuits in the past seven
years that either resulted in an adverse finding for him or her
or has had a lawsuit pending for two years without
justification and without proceeding to trial, and within those
lawsuits has filed unnecessary motions or discovery requests
only for the purpose of delay; or (2) after a final adverse
finding repeatedly relitigates or attempts to relitigate the
validity of the final determination or the actual cause of
action against the same defendant; or (3) has been declared a
vexatious litigant by any other state or federal court based on
similar facts.
(more)
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A vexatious litigant may not file any new litigation as a
self-represented litigant without first obtaining permission
from the presiding judge. The prefiling order alerts the court
and parties of the individual's vexatious litigant status. The
court can then determine whether the case has any merit or if it
is being filed for the purpose of harassment or delay. The
court may also require the plaintiff to furnish a security.
In the spring of 2010, the Policy Coordination and Liaison
Committee (PCLC), Trial Court Presiding Judges Advisory
Committee, and Civil and Small Claims Advisory Committee (CSCAC)
of the Judicial Council of California proposed legislation to
improve the practice and procedure for courts dealing with
vexatious litigants by clarifying that the vexatious litigant
statute applies in the Courts of Appeal and by providing a
process for vexatious litigants to be removed from Judicial
Council's list of vexatious litigants. The proposed legislation
was circulated for public comment the same year. This bill
would implement that proposal.
In addition to clarifying the vexatious litigant's statute, this
bill would also make several changes related to the judicial
arbitration program. Judicial arbitration is a more informal
alternative to litigation required in cases where the amount in
controversy is less than $50,000 per plaintiff. The judicial
arbitration program is a more informal, less expensive and time
consuming dispute resolution program. Parties meet with a
neutral arbitrator outside of court hours in order to resolve
their disputes. Courts with 18 or more judges are required to
have a judicial arbitration program for unlimited civil cases.
The judicial arbitration program was originally established by
the Legislature in 1978 and proposed to sunset in 1984. The
Judicial Council was required to review the effectiveness of the
program and in 1983 submitted its findings to the Legislature.
These findings concluded that the judicial arbitration program
was a valuable dispute resolution mechanism particularly for
smaller civil cases and favorably affected the cost, complexity,
and time associated with litigation. Due to the program's
success, the sunset provision was deleted in 1984, thereby
extending the program indefinitely. The PCLC and the CSCAC of
the Judicial Council of California proposed legislation to
improve the practice and procedure of the judicial arbitration
program in the spring of 2010 and the proposal was circulated
for public comment. This bill would implement that proposal.
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Currently, after arbitration is concluded, parties either file a
request for a new trial or the arbitrator's award is entered as
a judgment of the court. This bill would provide that parties
to judicial arbitration may file a request for dismissal of the
case after a successful arbitration instead of a request for a
new trial and would give parties 60 days (instead of 30 days) to
either file the request for dismissal or file for a new trial.
(This analysis reflects author's amendments to be offered in
committee.)
CHANGES TO EXISTING LAW
1.Existing law prohibits a vexatious litigant from filing any
new litigation in pro per without first obtaining permission
of the presiding judge of the court where the litigation is to
be filed. Existing law allows for the presiding judge to
permit the filing of litigation by a vexatious litigant only
if it appears that the litigation has merit and has not been
filed for the purposes of harassment or delay. (Code Civ.
Proc. Sec. 391.7 (a) and (b).)
This bill would add "presiding justice" before "presiding
judge" to clarify that this section also applies to the Courts
of Appeal. This bill would also clarify that the presiding
justice or presiding judge is authorized to designate another
justice or judge to perform his or her duties under the
statute.
2.Existing law prohibits the court clerk from filing any
litigation presented by a vexatious litigant subject to a
prefiling order unless the vexatious litigant first obtains an
order from a presiding judge permitting the order. If the
litigation is mistakenly filed by the clerk without the order,
any party may file with the clerk to serve on the plaintiff
and other parties a notice stating that the plaintiff is a
vexatious litigant. (Code Civ. Proc. Sec. 391.7 (c).)
This bill would authorize the presiding justice or presiding
judge, or his or her designee, to order the clerk to give
notice of a vexatious litigant's status if the clerk
mistakenly files the litigation without a prefiling order.
3.Existing case law allows for a vexatious litigant to be
removed from Judicial Council's list of vexatious litigants if
he or she can demonstrate "a mending of the ways." The
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litigant must file an application in the court that entered
the prefiling order to vacate the order and be removed from
the vexatious litigant list. The criteria for vacating a
prefiling order and removing a vexatious litigant from the
list are that (1) there has been a material change in the
facts upon which the order was entered, or (2) the "ends of
justice" would be served. (Luckett v. Panos (2008) 161
Cal.App.4th 77, 83; PBA, LLC v. KPOD, Ltd. (2003) 112
Cal.App.4th 9965, 978.)
This bill would require a vexatious litigant to follow
specified procedures in order to vacate a prefiling order and
remove his or her name from Judicial Council's list of
vexatious litigants. A vexatious litigant would be required
to file an application in the court that entered the prefiling
order and the application must be made before the presiding
justice or judge who originally declared the plaintiff to be a
vexatious litigant, if the justice or judge is available. If
the presiding justice or judge is not available, the
application may be made before his or her designee.
This bill would authorize a judge to vacate the prefiling
order and remove the plaintiff's name from the list of
vexatious litigants upon a showing of a material change in the
facts and that the ends of justice would be served.
This bill would limit a vexatious litigant to one application
per 12 month period following denial of the previous
application.
4.Existing law requires courts with 18 or more judges to have a
judicial arbitration program for unlimited civil cases.
Courts are required to refer non-exempt cases into the program
if the amount in controversy is no more than $50,000 per
plaintiff. (Code Civ. Proc. Sec. 1141.11.)
Existing law allows parties to opt into the program under
certain circumstances. (Code Civ. Proc. Sec. 1141.12.)
Existing law requires a party to request a trial de novo
within 30 days after the date
of the filing of the arbitrator's award with the court, or the
award will be a final judgment of law. (Code Civ. Proc. Secs.
1141.20 and 1141.23.)
This bill would allow parties to request a dismissal when they
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are satisfied with the arbitration award instead of having to
file a request for a trial de novo or risk having a judgment
entered against them.
This bill would extend the time period to request the
dismissal or trial de novo from 30 days to 60 days.
COMMENT
1.Stated need for the bill
According to the author:
In light of the state's financial crisis it is increasingly
important to find ways for the courts to run more
efficiently. This bill will clarify and streamline the
procedures for courts dealing with vexatious litigants. Minor
substantive changes will be made to clarify that this statute
applies in the Courts of Appeal and that the presiding justice
or judge may designate another justice or judge to carry out
his or her duties, as is currently the practice in most courts
with multiple justices or judges. Under SB 731, the process
for a vexatious litigant to be removed from the list will be
codified to ensure consistency among the courts. As a result
of these clarifications and additions there should be a
savings of time and money for both litigants and the courts.
According to the sponsor, Judicial Council:
SB 731 will reduce costs for the parties and the courts
associated with preparing, filing, and processing unnecessary
trial de novo requests . . . Providing parties with the option
of filing a request for dismissal to stop entry of the
arbitrator's award as the judgment will allow parties who are
satisfied with that award, or who were able to reach agreement
with the help of the award, to settle their cases without also
having to file a trial de novo request. In addition, giving
parties an additional 30 days before the arbitrator's award is
entered as the judgment should also increase the number of
cases in which the parties have sufficient time to work out
the details of a settlement, further reducing the number of
unnecessary trial de novo requests that are filed.
2.This bill would clarify and streamline the practice and
procedure involving vexatious litigants
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Under existing law, a judge is authorized to enter a prefiling
order that prohibits a vexatious litigant from filing any new
litigation as a self-represented litigant without first
obtaining permission from the presiding judge. This bill would
make several changes to the vexatious litigant statute as
described below.
a. Clarifying that the vexatious litigant statute applies
in the Courts of Appeal and the presiding justice or judge
is authorized to designate another justice or judge to
carry out his or her duties under the statute
This bill would clarify that the vexatious litigant's statutes
apply in the Courts of Appeal. The Judicial Council notes
that it is the practice of the courts to apply the vexatious
litigant statute in the Courts of Appeal, even though the
current statutory scheme does not include the term "justice"
which would indicate that the statute is applicable to the
Courts of Appeal. This bill will add the term "justice" to
clarify that the statute does apply in the Courts of Appeal.
Adding the proper terminology will make the statute consistent
with case law.
This bill would also clarify that the presiding justice or
judge may designate another justice or judge to carry out his
or her duties under the vexatious litigant statute. Although
it is a common practice in the court to designate another
justice or judge to carry out his or her duties, the statutory
scheme does not currently provide for this practice. Since
the presiding judge or presiding justice is unable to
individually handle all matters before the court, this will
streamline the court process for handling vexatious litigants.
b. Notifying parties of a vexatious litigant's status
This bill would also authorize the presiding justice or
presiding judge (or his or her designee) to instruct the clerk
of the court to notify parties of a vexatious litigant's
status in instances when the clerk may have mistakenly filed
new litigation from a vexatious litigant without the prefiling
order. Currently, parties to the litigation may themselves
give notice to the clerk if they are aware that a party has
been declared to be a vexatious litigant. The court clerk then
gives notice to all parties. However, there may be occasions
when the defendant is unaware of the plaintiff's vexatious
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litigant status because the prefiling order was mistakenly
left off the complaint. In that case, this bill would correct
this problem by authorizing the court to direct the clerk to
notify the parties.
c. Applying for removal from Judicial Council's list of
vexatious litigants
This bill would codify a procedure for vexatious litigants to
follow when they seek removal from the Judicial Council's list
of vexatious litigants. Under the bill, vexatious litigants
will be required to file an application with the court that
entered the prefiling order and the application must be made
in front of the presiding justice or judge who originally
entered the order. If the presiding justice or judge who
entered the order is unavailable, the application may be made
in front of his or her designee.
It is important to codify a standard procedure for vexatious
litigants to use in order to apply for removal from the
vexatious litigant list. That procedure ensures uniformity
throughout the courts when dealing with this issue. Current
case law has delineated certain factors courts should consider
when determining whether a vexatious litigant may be removed
from the list. The general standard is that the vexatious
litigant has demonstrated "a mending of the ways." (See
Luckett v. Panos (2008) 161 Cal.App.4th 77). Under this bill,
courts will be directed to review the removal application to
determine whether there has been a change in the facts and
whether removal from the list is necessitated by the ends of
justice. As a safeguard to avoid having multiple or frequent
requests for removal, vexatious litigants will be unable to
file another application for removal until 12 months after
denial of the previously unsuccessful application.
1.This bill would reduce the number of unnecessary trial de novo
requests after judicial arbitration resulting in a saving of
time and money
Under existing law, parties to judicial arbitration must file a
request for a new trial (trial de novo) if they do not want a
judgment entered against them. This bill would instead permit
parties to file a request for a dismissal within 60 days after
the arbitrator issues the award.
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a. Permitting parties to judicial arbitration to file a
request for a dismissal following arbitration
Pursuant to existing law, after completion of the arbitration
process, parties are required to either file a request for a
new trial or have a judgment entered against them in court.
According to Judicial Council, the current statutory scheme is
encouraging parties to file for a new trial even though it is
unlikely that they intend to bring the case to trial. This
adds to the cost of litigation in addition to consuming time
for the parties and court staff.
There may be several reasons why parties may not want a
judgment entered against them, as noted by Judicial Council.
For example, having a judgment entered against them in court
could impact the parties' employability or creditworthiness
since it is common on job and credit applications to ask
whether a judgment has been entered against the applicant.
By allowing parties to request a dismissal after a successful
arbitration, parties can avoid having to file for a new trial
or risk the judgment against them. Provided that the parties
are satisfied with the arbitrator's award, they would still be
bound by the award but would not have the judgment of the
court entered against them.
b. Granting parties to judicial arbitration 60 days to
either file a request for dismissal or for a new trial
Existing law requires parties to file a request for a new
trial within 30 days after the arbitrator's award. This bill
would extend the timeframe to 60 days to either allow parties
to file for a dismissal based on a satisfactory arbitrator's
award or to encourage parties to come to a mutual resolution
based on the award.
This additional time will allow the parties to determine if
they are satisfied with the award, or if they can reach an
alternate agreement based on the award, and if not, then they
can file for a new trial.
Further, in addition to providing an alternate course of
action for the parties, this new process should more
accurately reflect the impact of the judicial arbitration
program in the courts, thereby allowing the courts to focus
their resources on the cases that may legitimately need
post-arbitration trials.
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1.Author's amendments
The following technical amendments are needed to clarify that a
presiding justice or presiding judge may only delegate his or
her duties to another justice or judge:
a. On page 2, line 8 strike ",or his or her designee,"
b. On page 2, beginning on line 11 strike ",or his or her
designee,"
c. On page 2, beginning on line 14 strike ",or his or her
designee,"
d. On page 2 beginning on line 20 strike ",or his or her
designee,"
e. On page 3, beginning on line 3 strike ",or his or her
designee,"
f. On page 3, beginning on line 10 strike ",or his or her
designee,"
g. On page 3, beginning on line 12 strike ",or his or her
designee,"
h. On page 3, between lines 20 and 21 insert "(e) The
presiding justice or presiding judge of a court may
designate a justice or judge of the same court to act on
his or her behalf in exercising the authority and
responsibilities under subdivisions (a)-(c)."
i. On page 3, line 21 strike (e) and insert (f)
Support : None Known
Opposition : None Known
HISTORY
Source : Judicial Council
Related Pending Legislation : SB 603 (Berryhill) would delete
references to "in propria persona" from the definition for
"vexatious litigant." This bill has been referred to the
Senate Judiciary Committee.
Prior Legislation :
SB 2675 (Marks, Chapter 621, Statutes of 1990), among other
things, amended the definition of "litigation" as applied to
vexatious litigants and authorized a judge to enter a prefiling
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order.
SB 1251 (Marks, Chapter 1249, Statutes of 1984) eliminated the
sunset on the judicial arbitration program and changed the 20
days for filing a request for a new trial after arbitration to
30 days.
AB 1938 (Aroner, Chapter 1118, Statutes of 2002), among other
things, applied the vexatious litigant statutes to family law
and probate proceedings.
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