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.

Affirmed.

A Not Quite Vexatious Duo

John v. Superior Court, No. B256604 (D2d7 Nov. 10, 2014)

California’s vexatious litigant statutes, Code of Civil Procedure § 319–319.8, apply in both trial court and on appeal. A pro se plaintiff who has been declared vexatious needs to get pre-filing permission from the presiding judge (for trial court) or the presiding justice (for appellate courts) before proceeding. But what the happens when a vexatious litigant get sued, loses, and then wants to appeal? Does she need leave from the presiding justice to pursue her appeal? The court here says no. Neither the language of the statutes, their purposes, or the legislative history warrant requiring pre-filing approval under such circumstances.

Writ granted.

**NOTE: The Supreme Court granted review of this case on February 11, 2015.

Garcia v. Lacey, No. F066681 (D5 Nov. 12, 2014)

Plaintiff in this prisoner case was declared a vexatious litigant under Code of Civil Procedure § 391, which, as I just said, requires any plaintiff who commenced at least five pro per litigations over the past seven years that resulted in adverse results to obtain the presiding judge’s permission before filing again. The defendant submitted court records about nine prior litigations, eight of which were filed in federal court. Five of the federal court cases were dismissed on pre-filing screening under the Prison Reform Litigation Act, which gives federal courts the authority to refuse to grant in forma pauperis applications from pro se prisoners when their complaints are facially meritless, and to refuse to accept the complaint for filing. See 28 U.S.C. §§ 1915, 1915A. In these cases, because no complaint was ever accepted for filing in the federal court, the five actions were never “commenced, prosecuted, or maintained” as required by § 391. Consequently, there were only four matters that actually satisfy the standard, so plaintiff doesn’t yet qualify as vexatious.

Reversed.