BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 2274 (Lara)
As Amended May 15, 2012
Hearing Date: June 26, 2012
Fiscal: No
Urgency: No
SK
SUBJECT
Vexatious Litigants
DESCRIPTION
Existing law authorizes a court to declare a person to be a
vexatious litigant when that person has repeatedly abused the
judicial process by bringing meritless lawsuits in propria
persona (for one's self) (pro per). This bill would extend the
vexatious litigant statute to pro per plaintiffs who are
represented by counsel at the time of filing in certain
circumstances. Specifically, this bill would provide that a
court shall dismiss an action brought by a vexatious litigant
when all of the following are true: (1) the court determines,
after hearing evidence, that the litigation has no merit and has
been filed for the purposes of harassment or delay; (2) the
vexatious litigant is subject to a prefiling order; and (3) the
vexatious litigant was represented by counsel at the time the
litigation was filed and became pro per after his or her
attorney withdrew from the case.
BACKGROUND
Under existing law, a court may declare a person to be a
vexatious litigant when that person represents himself or
herself and has repeatedly abused the legal system by doing any
of the following: (1) filed at least five unmeritorious lawsuits
in the past seven years; (2) repeatedly relitigates, after a
final adverse finding, the validity of the final determination
or the actual cause of action against the same defendant; (3)
repeatedly engages in tactics that are frivolous or solely
intended to cause unnecessary delay; and (4) has previously been
(more)
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declared to be a vexatious litigant by a state or federal court
in an action based upon the same or substantially similar facts.
Current law permits a court to enter a prefiling order which
prohibits a vexatious litigant from filing any new litigation in
pro per ("pro per" refers to a plaintiff who represents himself
or herself) without first obtaining permission of the presiding
judge of the court where the litigation is to be filed.
Existing law permits the judge to allow the filing of that
litigation only if it appears that the litigation has merit and
has not been filed for the purposes of harassment or delay. The
court may also require the plaintiff to furnish a security to
assure payment of reasonable expenses.
In the spring of 2010, the Policy Coordination and Liaison
Committee, the Trial Court Presiding Judges Advisory Committee,
and the Civil and Small Claims Advisory Committee of the
Judicial Council proposed legislation to improve the practice
and procedure for courts dealing with vexatious litigants. That
proposed legislation was introduced as SB 731 (Committee on
Judiciary, Ch. 49, Stats. 2011), which clarified that the
vexatious litigant statutes apply to matters in the Courts of
Appeal and created a process for the courts to follow when a
vexatious litigant seeks removal from the Judicial Council's
vexatious litigant list. As a part of its process, the Judicial
Council committees circulated the proposal that would eventually
become SB 731 during its Spring 2010 invitation-to-comment
cycle. Several of the comments received concerned "whether
section 391.7 should be expanded to apply to a vexatious
litigant represented by an attorney." The advisory committees
did not incorporate such a provision in SB 731 and instead
"decided to defer recommending legislation that would expand the
applicability of section 391.7 to a vexatious litigant
represented by counsel."
Last year, SB 603 (Berryhill) was introduced and failed passage
in this Committee. That bill attempted to address the same
issue raised by this bill, but it did so by permitting a court
to declare a person to be a vexatious litigant even if he or she
was represented by an attorney. At the time, SB 603 was opposed
by the California Rural Legal Assistance Foundation, Consumer
Attorneys of California, Consumer Federation of CA, and Western
Center on Law and Poverty for a number of reasons, including
that existing law already addresses improper behavior by
attorneys, the bill could have had a possible chilling effect on
legitimate advocacy, and it was arguably premature since the
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California Supreme Court was considering the issue at the time.
The Supreme Court has since issued its decision in Shalant v.
Girardi (2011) 51 Cal.4th 1164 in which it held that the
vexatious litigant statute applies only to actions filed in pro
per. Thus, if an attorney representing a vexatious litigant who
is subject to a prefiling order later withdraws from the case,
the court may not dismiss the action because the litigant did
not comply with the prefiling order since he or she was
represented by counsel at the time of the filing.
In Shalant, the vexatious litigant plaintiff was subject to a
prefiling order that prohibited him from "filing any new
litigation in propria persona in the courts of California
without approval of the presiding judge of the court in which
the action is to be filed." (Id. at 1168.) While represented
by counsel, the plaintiff Shalant filed an action alleging,
among other things, breach of contract and breach of the
covenant of good faith and fair dealing. Beginning about five
months after the filing of the case and over the next year and a
half, the plaintiff was represented by his original counsel, new
counsel, the plaintiff himself, original counsel, and the
plaintiff himself, in that order. At that point, the defendants
filed a notice of the plaintiff's status as a vexatious litigant
subject to a prefiling order and a motion to dismiss the case on
that basis. The trial court granted that motion, and the Second
District Court of Appeal reversed the ruling, holding that a
prefiling order issued under the vexatious litigant statute
"governs only the initiation of a lawsuit, not what occurs
during the prosecution of the litigation." (Shalant v. Girardi
(2010) 183 Cal.App.4th 545, 554.). As noted above, the
California Supreme Court agreed and reiterated the appellate
court's statement that "? in their efforts to deal with the
problem of vexatious litigants, courts must observe the limits
set by the applicable statutory scheme. If those limits are too
confining, then it is the function of the Legislature, not the
courts, to expand them." (51 Cal.4th at 1176.)
This bill, sponsored by the Civil Justice Association of
California, would provide for that expansion by extending the
vexatious litigant statute to pro per plaintiffs who are
represented by counsel at the time of filing in certain
circumstances.
CHANGES TO EXISTING LAW
Existing law defines "vexatious litigant" to mean a person who
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does any of the following:
a.In the immediately preceding seven years, filed, in pro per, at
least five actions, other than in small claims court, that
have been either: (1) finally determined adversely to the
person or (2) unjustifiably permitted to remain pending at
least two years without having been brought to trial or
hearing;
b.After a final adverse ruling against the person, repeatedly
relitigates or attempts to relitigate, in pro per, either: (1)
the validity of the final determination or (2) the actual
cause of action against the same defendant;
c.In any litigation while acting in pro per, 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; and
d.Has previously been declared to be a vexatious litigant by a
state or federal court in an action based upon the same or
substantially similar facts. (Code Civ. Proc. Sec. 391.)
Existing law provides that a defendant may make a motion for an
order requiring a plaintiff to provide security when it can be
shown that the plaintiff is a vexatious litigant and there is
not a reasonable probability that he or she will prevail in the
litigation. (Code Civ. Proc. Sec. 391.1.) After hearing the
evidence upon the motion, if the court determines that the
plaintiff is a vexatious litigant and that there is no
reasonable probability that he or she will prevail, the court
must order the plaintiff to furnish security in an amount
determined by the court and for the benefit of the defendant.
(Code Civ. Proc. Sec. 391.3.) If that security is not
furnished, the lawsuit shall be dismissed. (Code Civ. Proc.
Sec. 391.4.)
Existing law permits the court to enter a prefiling order which
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 permits the judge to allow the filing of that
litigation 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.)
This bill would require a court to dismiss an action brought by
a vexatious litigant who is subject to a prefiling order if the
court determines, after hearing evidence, that the litigation
has no merit and has been filed for the purposes of harassment
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or delay. This provision would only apply if the vexatious
litigant was represented by counsel at the time the litigation
was filed and became pro per after his or her attorney withdrew
from the case.
This bill would permit the defendant to either bring a motion
for an order requiring the plaintiff to furnish security or a
motion for an order dismissing the action, or both. The bill
would require the defendant to combine all grounds for relief in
one motion.
COMMENT
1. Stated need for the bill
The author writes:
The budget for California's judicial branch was reduced by 30%
this past fiscal year, and since 2008 the budget has been cut
by nearly a quarter - $653 million. At the same time,
superior court filings have increased by 20%, according to the
Judicial Council's annual statistics report. Additionally, in
the current fiscal year, trial court funding was cut by $350
million statewide. At a time when courts are deeply impacted
by these budget cuts, AB 2274 would limit abusive and
frivolous lawsuits and filings to save valuable resources of
both the courts and the parties. Although there are some
provisions on the books to protect against potentially abusive
lawsuits brought forward by vexatious litigants, unfortunately
there are still some instances in which litigants can use the
court system to pursue frivolous and unwarranted lawsuits.
This costs courts, who are already under enormous cost
pressure, and defendants precious time and money.
Once a person has been designated a vexatious litigant, there
are certain protections in future lawsuits brought forward by
that person. One of the protections allows a judge to look
closely at what a vexatious litigant files and approve of the
filing. If a vexatious litigant has an attorney, the litigant
is not subject to the pre-filing order or the scrutiny of the
judge in his or her pleadings because the attorney is subject
to the Rules of Professional Conduct.
A recent Supreme Court case found that the statute as drafted
only requires a vexatious litigant to have an attorney at the
initial filing of a case. AB 2274 would clear up a loophole
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that currently exists in which a vexatious litigant can
dismiss the attorney after they file papers and avoid the
closer judicial scrutiny of their case.
Litigation is expensive and all too often defendants settle
frivolous or warrantless lawsuits simply because they don't
have the resources to fight them in court. AB 2274 will make
it clear that a lawsuit from a vexatious litigant will be
subject to stricter scrutiny from a judge if, at any point,
the litigant dismisses their attorney. Ensuring provisions
that will provide this stricter scrutiny makes it more likely
that cases of merit will be heard in a timelier manner and
will protect the scarce resources of California's courts.
Sponsor Civil Justice Association of California writes, "�t]he
vexatious litigant statute was enacted in 1963 in order to curb
unwarranted litigation within California by allowing courts to
require a security bond or approval from the court before the
vexatious litigant could file additional litigation (The
California Vexatious Litigant Statute: A Viable Judicial Tool to
Deny the Clever Obstructionists Access?, 72 S. Cal. L. Rev. 275,
First Western Development Corp. v. Superior Court (1989) 212
Cal.App.3d 860). Excessive and needless lawsuits drive up
business expenses, cost government additional money, and
increase the cost of goods and services for all Californians.
Consumers pay for unjustified lawsuits as businesses increase
their prices to cover legal costs or shut down. This bill would
return the effectiveness of the statutory protections and
clarify that the legislature did not intend to allow vexatious
litigants to so easily game the system."
2. Existing vexatious litigant statute & changes proposed by this
bill
Under existing law, a court may declare a person to be a
vexatious litigant when that person has repeatedly abused the
judicial process by bringing meritless lawsuits in pro per.
This bill would extend the vexatious litigant statute to pro per
plaintiffs who are represented by counsel at the time of filing
in certain circumstances, as described in more detail in
subdivision (c), below.
a. Existing statutory requirements
Existing law defines a "vexatious litigant" to mean a person
who does any of the following: (1) in the immediately
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preceding seven years, filed, in pro per, at least five
actions, other than in small claims court, that have been
either (a) finally determined adversely to the person or (b)
unjustifiably permitted to remain pending at least two years
without having been brought to trial or hearing; (2) after a
final adverse ruling against the person, repeatedly
relitigates or attempts to relitigate, in pro per, either (a)
the validity of the final determination or (b) the actual
cause of action against the same defendant; (3) in any
litigation while acting in pro per, 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; or
(4) has previously been declared to be a vexatious litigant by
a state or federal court in an action based upon the same or
substantially similar facts.
Once a plaintiff is declared to be a vexatious litigant, a
defendant may make a motion for an order requiring a plaintiff
to provide security when it can be shown that the plaintiff is
a vexatious litigant and there is not a reasonable probability
that he or she will prevail in the litigation. After hearing
the evidence upon the motion, if the court determines that the
plaintiff is a vexatious litigant and that there is no
reasonable probability that he or she will prevail, the court
must order the plaintiff to furnish security in an amount
determined by the court and for the benefit of the defendant
to assure payment of reasonable expenses. If that security is
not furnished, the lawsuit shall be dismissed.
A vexatious litigant may also be subject to a prefiling order
which prohibits that 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 permits the judge to allow the filing of that
litigation only if it appears that the litigation has merit
and has not been filed for the purposes of harassment or
delay.
b. Purpose of vexatious litigant statute
The vexatious litigant statute was enacted in 1963 to "curb
the abuse of vexatious litigation" (3 Witkin, Cal. Procedure
(5th) Actions Sec. 365), and to prevent abuse of the judicial
process. In First Western Development Corp. v. Superior Court
(1989) 212 Cal.App.3d 860, the court noted:
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The vexatious litigant statutes were enacted to require a
person found a vexatious litigant to put up security for the
reasonable expenses of a defendant who becomes the target of
one of these obsessive and persistent litigants whose
conduct can cause serious financial results to the
unfortunate object of his attack. The purpose of the
statutory scheme is to deal with the problem created by the
persistent and obsessive litigant who has constantly pending
a number of groundless actions, often against the judges and
other court officers who decide or were concerned in the
decision of previous actions adversely to him. . . .
A litigant who loses then burdens the courts with new
actions and repeated appeals based on the same controversy
and with no reasonable possibility of prevailing wastes
valuable court time. It is axiomatic in our system of
justice that every person is entitled to his day in court;
however, a litigant is not entitled to two days in court.
�Citations omitted.] (Id. at 867-870).
By applying only to pro per plaintiffs, the vexatious litigant
statute distinguishes between plaintiffs who bring their cases
in pro per and those who are represented by attorneys. In
upholding this distinction, the First District Court of Appeal
held that the statute's application "to persons proceeding in
propria persona is not arbitrary or unreasonable. Attorneys
are governed by prescribed rules of ethics and professional
conduct, and, as officers of the court, are subject to
disbarment, suspension, and other disciplinary sanctions not
applicable to litigants in propria persona." (Taliaferro v.
Hoogs, (1965) 236 Cal.App.2d 521.)
c. Changes proposed by this bill
Under this bill, a court must dismiss an action brought by a
vexatious litigant when all of the following are true:
1. The vexatious litigant is subject to a prefiling order;
2. The court determines, after hearing evidence, that the
litigation has no merit and has been filed for the purposes
of harassment or delay; and
3. The vexatious litigant was represented by counsel at the
time the litigation was filed and became pro per after his
or her attorney withdrew from the case.
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Taken together these provisions are intended to ensure that
sufficient safeguards are in place so that the concerns raised
by last year's SB 603 (Berryhill) do not arise. For example,
the bill's provisions would apply only if the vexatious
litigant is already subject to a prefiling order. As noted
above, such an order would prevent the plaintiff from filing
any new litigation without an attorney without first obtaining
permission of the presiding judge of the court where the
litigation is to be filed. Second, under this bill, the
vexatious litigant's lawsuit would only be dismissed if the
court also determines, after hearing evidence on the motion,
that the litigation has no merit and was filed for the
purposes of harassment or delay. Existing law requires that
the hearing be noticed and the court must consider written or
oral evidence, by witnesses or affidavit, that is material to
the ground of the motion.
This bill would also apply only if the vexatious litigant was
represented by counsel at the time the litigation was filed
and then became pro per after the attorney withdrew from the
case. As noted above, the author's intent is to address the
situation where a vexatious litigant dismisses his or her
attorney after the case is filed in an effort to avoid closer
judicial scrutiny of his or her case. Sometimes, however, an
attorney may need to withdraw from an action for more
scrupulous reasons (e.g., the attorney becomes ill and can no
longer represent the plaintiff). This bill would address such
a situation by requiring that the court still find that the
litigation has no merit and was filed for purposes of
harassment or delay.
The Judicial Council supports this bill, writing that it "?
provides a modest, but important enhancement to the law
governing vexatious litigants. Enactment of AB �2274] should
assist in weeding out meritless lawsuits and help conserve
judicial resources, which is especially important during the
current budget crisis." In addition, the California Rural
Legal Assistance Foundation, Consumer Attorneys of California,
Consumer Federation of CA, and Western Center on Law and
Poverty do not oppose this bill.
3. Technical amendment needed
In order to clarify the proper standards for obtaining an order
requiring the plaintiff to furnish security and an order
dismissing the litigation, as proposed by this bill, the author
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has agreed to accept the following technical amendment:
Technical Amendment
On page 3, line 7, after "motion" insert "for an order
requiring the plaintiff to furnish security"
Support : American Council of Engineering Companies; Association
of California Insurance Companies; California Association of Bed
and Breakfast Inns; California Association of Joint Powers
Authorities; California Chamber of Commerce; California Citizens
Against Lawsuit Abuse; California Construction and Industrial
Materials Association (CalCIMA); California Farm Bureau
Federation; California Framing Contractors Association;
California Grocers Association; California Hotel and Lodging
Association; California Independent Grocers Association;
California League of Food Processors; California Manufacturers
and Technology Association; California Retailers Association;
Cooperative of American Physicians; Judicial Council of
California; League of California Cities; Motion Picture
Association of America; National Federation of Independent
Business
Opposition : None Known
HISTORY
Source : Civil Justice Association of California
Related Pending Legislation : None Known
Prior Legislation :
SB 603 (Berryhill, 2011) See Background and Comment 2c.
SB 731 (Committee on Judiciary, Ch. 49, Stats. 2011) See
Background.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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