Legal Question in Wills and Trusts in California

I just got back from court. I am in pro per and was declared a vexatious litigant in the trust action. I tried to file a motion to compel accounting in the will action--it has a different case number--but the clerk wouldn't let me. She said the VL designation applies to the person, not the case--that I can't filel anything anywhere unless get the judge's approval first. Who's right?

Asked on 3/28/11, 12:05 pm

3 Answers from Attorneys

Eliz. C. A. Johnson Eliz. C. A. Johnson
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Vexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action. Filing vexatious litigation is considered an abuse of the judicial process and may result in sanctions against the offender.

A single action, even a frivolous one, is not enough to raise a litigant to the level of being declared vexatious, though repeated and severe instances by a single lawyer or firm can result in eventual disbarment.

Some jurisdictions have a list of vexatious litigants: people who have repeatedly abused the legal system. Because lawyers could be disbarred for participating in the abuse, vexatious litigants are often unable to retain legal counsel, and therefore represent themselves in court. Those on the list are usually either forbidden from any further legal action or required to obtain prior permission from a senior judge before taking any legal action. The process by which a person is added to the list varies among jurisdictions.

Under California law a vexatious litigant is someone who does any of the following, most of which require that the litigant be proceeding pro se, i.e., representing himself:

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.

Appeals of an existing action do not count as “final determinations”. Appeals and writs that are related to a current action do not count as “final determinations” or additional determinations, because until all avenues of appeal have been exhausted the determinations cannot be construed as “final”. A judgment is final for all purposes when all avenues for direct review have been exhausted. Interlocutory decisions before a judgment cannot be considered “final determinations”. Docket lists show nothing about qualifying merit of interim motions

To meet the unspecified criteria for "repeated" motions or litigations, the number must be much more than two, and the rule based on case law seems to be around 12. "While there is no bright line rule as to what constitutes “repeatedly,” most cases affirming the vexatious litigant designation involve situations where litigants have filed dozens of motions either during the pendency of an action or relating to the same judgment."

Repeated motions must be "so devoid of merit and be so frivolous that they can be described as a flagrant abuse of the system, have no reasonable probability of success, lack reasonable or probable cause or excuse, and are clearly meant to abuse the processes of the courts and to harass the adverse party than other litigants." Evidence that a litigant is a frequent plaintiff or defendant alone is insufficient to support a vexatious litigant designation. The moving party, in addition to demonstrating that the plaintiff is vexatious, must make an affirmative showing based on evidence that the case has little chance of prevailing on the merits. If the plaintiff is so determined, a bond may be required, and if the bond requirement is not met within a specified time period, a judgment of dismissal is ordered. A finding of vexatiousness is not an appealable order, but a dismissal for failure to post a bond requirement based on a judgment of vexatiousness is appealable.

Habeas petitions do not count towards vexatious litigant determination. Vexatiousness in Probate Actions are governed by a different standard (Cal. Prob. Code s. 1611).

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3/28/11, 12:50 pm
Timothy McCormick Libris Solutions - Dispute Resolution Services
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Uh, . . . that's an interesting treatise by Ms. Johnson, but of course it does not answer your question. The answer to your question is that the vexatious litigant designation applies to the person, not just the case in which the determination is issued. A probate VL determination may or may not be ordered to apply to non-probate proceedings, but since the papers you were not allowed to file were probate court papers that doesn't matter to your situation. The clerk is right.

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3/28/11, 1:24 pm
Anthony Roach Law Office of Anthony A. Roach
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I agree with Mr. McCormick, and the court clerk. She cannot accept any papers you attempt to file until you have a approval from the judge.

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3/28/11, 5:23 pm

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