Most CA family law parents who have been muzzled by a trial court have been deemed vexatious. The purpose is to place a legal gag order on parents as generally in most cases there is court corruption or heinous rulings that the court desperately wants to cover up, hence the legal muzzling.
Originally the vexatious litigant statute (VLS) in CA was intended to apply to litigants who sued judges; and upon a proposal by the Los Angeles county bar association the VLS statute in CA was born.
The court’s ability to make such a determination originated from an obscure and little-known state statute. In 1963, the California legislature passed the Vexatious Litigant Statute (“VLS”), defining and regulating vexatious litigants. In 1990, the California Legislature amended the VLS to provide state court judges the power to issue “prefiling orders,” which, once issued, bar individuals previously or contemporaneously classified as vexatious litigants from filing additional complaints without first obtaining leave from the court where the litigation is proposed to be filed. The VLS is relatively unique among state statutes. Over the years the judicial council has amended its application to include family law proceedings where it cannot be applied as family law is dynamic and the underlying family law or appeal case litigation is not addressed in the VLS statute. The review process and changes by the judicial council can be viewed in previous changes to the statute. http://www.courts.ca.gov/documents/20101214item3.pdf
Our California Supreme Court has specified that the vexatious litigant application cannot be applied in one CIVIL case as defined in the Shalant court. For the purposes of defining civil law, family law is contained in Civil law as helpfully specified by the legal aid society. Civil law refers to almost all other disputes—these are the rules that apply when one person sues another person, a business or agency. This can cover a housing case such as
for eviction or foreclosure, a family case such as divorce or custody, consumer problems such as debt or bankruptcy, or when someone sues for money because of damage to property or personal harm. All of these cases go to a Civil Court.
The Shalant opinion specified: “Reading the vexatious litigant statutes as a collective whole, defendants’ construction is not a plausible one. If “litigation” as defined in section 391, subdivision (a) included every motion or other procedural step taken during an action or special proceeding, and that definition were applied throughout the vexatious litigant statutes, several provisions would take on absurd, unworkable, or clearly unintended meanings. Under section 391, subdivision (b)(1), a person could be declared a vexatious litigant for losing five motions—all of which might have been filed in the same lawsuit—in a seven-year period. Section 391, subdivision (b)(3)’s reference to “motions, pleadings, or other papers” filed in the course of a litigation would make little sense if every motion, pleading, or paper filed was itself a new litigation. Under section 391.1, the defendant could move for an order requiring the plaintiff to post security each time the plaintiff filed a motion or took any other procedural step. The trial court would then have to hold a hearing—separate from any hearing on the motion itself—and determine whether the plaintiff was reasonably likely to prevail on the motion or other procedural step. (§ 391.2.) On a negative finding, the court would then be required to order the plaintiff to furnish security, presumably cumulative to any ordered at earlier stages of the action. (§ 391.3.) If the plaintiff failed to provide the security, the action would, according to section 391.4, be “dismissed,” though the negative ruling on a motion is ordinarily referred to as a “denial” rather than a “dismissal.”
Under section 391.7 itself, defendants’ construction of “litigation” would be unworkable. A vexatious litigant in Shalant’s position, having filed the action through counsel but then having lost representation, would be required to seek permission of the presiding judge before filing any motion or other paper. The presiding judge of the court would thus be placed in the position of overseeing each procedural step of an action pending in another department and deciding in each instance whether the particular motion, pleading, or paper had “merit.” (§ 391.7, subd. (b).) If the clerk inadvertently filed any motion or other paper from the plaintiff, a notice from any other party that the plaintiff was subject to a prefiling order would automatically stay the “litigation” (§ 391.7, subd. (c))—that is, the particular motion filed or other procedural step taken—but the rest of the action would not necessarily be stayed at the same time. Pretrial and trial proceedings would be constantly interrupted for trips to the presiding judge’s department; an orderly and efficient trial would be impossible. Again, the statute provides that if permission is not granted, an inadvertently filed litigation is to be “dismissed” (ib id.), indicating the drafters did not intend each motion, which would ordinarily be granted or denied, but not “dismissed,” to be considered a separate “litigation.”
(11) Section 391.7, then, is not reasonably susceptible to a reading under which a prefiling order would bar the vexatious litigant from filing motions or other papers in propria persona even when the action (or special proceeding (see §§ 22, 23)) was itself properly filed through counsel. Any ambiguity on this point, moreover, would be dispelled by examination of the legislative history behind section 391.7’s enactment, which shows a clear focus on precluding vexatious litigants from filing in propria persona unmeritorious new “actions” or “lawsuits.” Nowhere in this history is there any suggestion the new section would bar vexatious litigants from filing motions or papers in pending litigation.
The additional remedy provided by section 391.7 was, instead, “directed at precluding the initiation of a meritless lawsuit and the costs associated with defending such litigation.” (Bravo v. Ismaj, supra, 99 Cal.App.4th at p. 222, italics added.); Shalant v. Girardi, (2011) 253 P. 3d 266).
Technically assuming that the legal construction of the VLS statute holds as outlined in the Shalant court, the VLS statute cannot be applied to family law cases as a person would have to be married and divorced 5 times in seven year to qualify as a vexatious litigant pursuant to CCP § 391 (a). California has a mandatory six months waiting period before a dissolution judgment can be granted once a divorce petition has been filed therefore it is a legal impossibility to remarry and divorce 5 times in seven years.
The specific reason why the VLS statute cannot be applied in family law cases and in appellate case has been detailed below.
A proposed assembly bill to bring back the original intent of the statute to curb litigation based on separate filed complaints has been detailed below. It is being published for public commentary and feedback. The purpose is to remove it from family law proceedings as judges are quite capable of managing family law litigation by placing high conflict cases on a case management review system rather than sweeping abuse and corruption under the carpet by muzzling litigants.
PROPOSED Assembly Bill: Remove the vexatious litigant application in family law proceedings.
CODE OF CIVIL PROCEDURE SECTION 391-391.8
391. As used in this title, the following terms have the following meanings: (a) "Litigation" means any civil action or proceeding, commenced, maintained or pending in any state or federal court, as a separate proceeding initiated by a civil complaint. (b) "Vexatious litigant" means a person who does any of the following: (1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations, as defined in subsection a, 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 beenbrought 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. (c) "Security" means an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses, including attorney's fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant. (d) "Plaintiff" means the person who commences, institutes or maintains a litigation or causes it to be commenced, instituted or maintained, including an attorney at law acting in propria persona. (e) "Defendant" means a person (including corporation, association, partnership and firm or governmental entity) against whom a litigation is brought or maintained or sought to be brought or maintained. 391.1. 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 pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall 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 he or she will prevail in the litigation against the moving defendant. 391.2. At the hearing upon the motion the court shall consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion. In addition toExcept for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3, a no determination shall be made by the court as to which litigation is deemed meritless to substantiate the vexatious designation. in determining or ruling upon themotion shall be or be deemed to be a determination of any issue in the litigation or of the merits thereof. 391.3. (a) Except as provided in subdivision (b), if, after hearing the evidence upon the motion, the court determines that the plaintiff is a vexatious litigant based upon five separate civil or federal complaints which have been adversely finally determined and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix. (b) If, after hearing evidence on the motion, the court determines that the litigation has no merit and has been filed for the purposes of harassment or delay, the court shall order the litigation dismissed. This subdivision shall only apply to litigation filed in a court of this state by a vexatious litigant subject to a prefiling order pursuant to Section 391.7 who was represented by counsel at the time the litigation was filed and who became in propria persona after the withdrawal of his or her attorney. (c) A defendant may make a motion for relief in the alternative under either subdivision (a) or (b) and shall combine all grounds for relief in one motion. 391.4. When security that has been ordered furnished is not furnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished. 391.6. Except as provided in subdivision (b) of Section 391.3, when a motion pursuant to Section 391.1 is filed prior to trial the litigation is stayed, and the moving defendant need not plead, until 10 days after the motion shall have been denied, or if granted, until 10 days after the required security has been furnished and the moving defendant given written notice thereof. When a motion pursuant to Section 391.1 is made at any time thereafter, the litigation shall be stayed for such period after the denial of the motion or the furnishing of the required security as the court shall determine. 391.7. (a) In addition to any other relief provided in this title, the 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. Disobedience of the order by a vexatious litigant may be punished as a contempt of court. (b) In order to file a new civil complaint as a separate action the litigant shall file a written application requesting permission to file the attached civil complaint, addressing the merit of the civil complaint. The presiding justice or presiding judge shall approve or deny the litigation within ten court days and shall permit 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 presiding justice or presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3. (c) The clerk may not file any litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant first obtains an order from the presiding justice or presiding judge permitting the filing. If the clerk mistakenly files the litigation without the order, any party may file with the clerk and serve, or the presiding justice or presiding judge may direct the clerk to file and serve, on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order as set forth in subdivision (a). The filing of the notice shall automatically stay the litigation. The litigation shall be automatically dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding justice or presiding judge permitting the filing of the litigation as set forth in subdivision (b). If the presiding justice or presiding judge issues an order permitting the filing, the stay of the litigation shall remain in effect, and the defendants need not plead, until 10 days after the defendants are served with a copy of the order. (d) For purposes of this section, "litigation" includes any civil complaint petition, application, or motion other than a discovery motion, in a proceeding under the Family Code or Probate Code or Appellate Court for any order relating to the Family Code. (e) The presiding justice or presiding judge of a court may designate a justice or judge of the same court to act on his or her behalf in exercising the authority and responsibilities provided under subdivisions (a) to (c), inclusive. (f) The clerk of the court shall provide the Judicial Council a copy of any prefiling orders issued pursuant to subdivision (a). The Judicial Council shall maintain a record of vexatious litigants subject to those prefiling orders and shall annually disseminate a list of those persons to the clerks of the courts of this state. 391.8. (a) A vexatious litigant subject to a prefiling order under Section 391.7 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. The application shall be filed in the court that entered the prefiling order, either in the action in which the prefiling order was entered or in conjunction with a request to the presiding justice or presiding judge to file new litigation under Section 391.7. The application shall be made before the justice or judge who entered the order, if that justice or judge is available. If that justice or judge who entered the order is not available, the application shall be made before the presiding justice or presiding judge, or his or her designee. (b) A vexatious litigant whose application under subdivision (a) was denied shall not be permitted to file another application on or before 12 months has elapsed after the date of the denial of the previous application. (c) A court may vacate a prefiling order and order removal of a vexatious litigant's name from the Judicial Council's list of vexatious litigants subject to prefiling orders upon a showing of a material change in the facts upon which the order was granted and that the ends of justice would be served by vacating the order.