What Happens with Vexatious Litigants in California?

The California Code of Civil Procedure (CCP) has a section about “vexatious litigants” in Title 3A of Part 2. Title 3A was added in 1963 by Chapter 1471. CCP Section 391 defines the terms “litigation,” “vexatious litigant,” “security,” “plaintiff,” and “defendant.”

The term “vexatious litigant” means a person who does any of the following:

• 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.

• 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.

• 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.

• 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.

• After being restrained pursuant to a restraining order issued after a hearing pursuant to the Family Code, and while the restraining order is still in place, they commenced, prosecuted, or maintained one or more litigations against a person protected by the restraining order in this or any other court or jurisdiction that are determined to be meritless and caused the person protected by the order to be harassed or intimidated.

CCP Section 391.1 provides that, in any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation.

The motion for an order requiring the plaintiff to furnish security must be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that they will prevail in the litigation against the moving defendant.

CCP Section 391.2 provides that, at the hearing upon the motion, the court is required to consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion.

CCP Section 391.3 states that if, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court is required to order the plaintiff to furnish security in an amount and within such time as the court fixes.

CCP Section 391.4 provides that, when security that has been ordered furnished is not furnished as ordered, the litigation must be dismissed as to the defendant for whose benefit it was ordered furnished.

CCP Section 391.6 states that, when a motion is filed prior to trial, the litigation is stayed, and the moving defendant need not plead, until 10 days after the motion has been denied, or if granted, until 10 days after the required security has been furnished and the moving defendant gives written notice.

CCP Section 391.7 provides that a court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed.

CCP Section 391.8 provides that a vexatious litigant subject to a prefiling order may file an application to vacate the prefiling order and remove his or her name from the Judicial Council’s list of vexatious litigants subject to prefiling orders.