Wednesday, June 15, 2016

Vexatious Litigants Don't Need Pre-Filing Leave When They Get Sued

John v. Superior Court, No. S222726 (May 5, 2016).

Code of Civil Procedure § 391.7 permits a court to enter an order requiring a pro se litigant deemed to be vexatious to get pre-filing permission before “filing any new litigation in the courts of this state.” “New litigation” has been read to include appeals from trail court cases where the vexatious plaintiff lost. The cases, however, have generally focused on pro se plaintiffs. (It is plaintiffs, after all, who generally “file new litigation.”) But if “new litigation” includes appeals, what happens when a vexatious litigant gets sued, loses, and tries, pro se, to appeal? Does she still need pre-filing permission to appeal? The authority on this issue is apparently unclear, so the Supreme Court granted review to settle it.

In a unanimous decision by Justice Chin, the Court notes that the statutory scheme generally reflects a Legislative understanding that a vexatious litigant is a pro se plaintiff. In particular, the statutes repeatedly refer to a “defendant” as the vexee, not the vexor. While repeated amendments made clear that the rule applied to opening new appeals, they nonetheless appear consistently premised on the idea that the vexatious appellant is a plaintiff too. So the answer to the question is no. No permission is required.


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