The Vexatious Litigant

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bull_by_the_horns_lg_clrIf you have a compulsion to go to court for no apparent reason it can get you into hot water.  Section 391 of California’s Code of Civil Procedure says a vexatious litigant is “a person who has, while acting [as his or her own attorney], initiated or prosecuted numerous meritless litigations, relitigated or attempted to relitigate matters previously determined against him or her, repeatedly pursued unmeritorious or frivolous tactics in litigation . . .” While everyone has a right to access the courts, vexatious litigants are not tolerated under California law. The State’s vexatious litigant statutes (Civ Proc. Code §§ 391-[391.8]) are designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants.

If a person is found to be a vexatious litigant in pending litigation, then the other party may ask the court for an order requiring the vexatious litigant to post security before going forward with the litigation or  the court can enter a “prefiling order” that prohibits a vexatious litigant from filing any new litigation in propria persona without first obtaining permission from the presiding judge.

Consider now the case of Richard and Kimberly:

In December 2009, a temporary restraining order was entered against Richard, and Kimberly was granted temporary sole legal and physical custody of the parties’ child.

Richard—then represented by counsel—responded with an ex parte request asserting that Kimberly was a risk to abduct, abuse, or neglect their child; he also accused Kimberly of fraud.  In January 2010, the Marin County Superior Court rejected the allegations that Kimberly posed a risk of abducting, abusing, and neglecting the child.

In April 2010, Richard became self-represented.

On June 23, 2010, Richard filed a motion again asserting that Kimberly was a risk to abduct, abuse, and neglect the parties’ child as well as Kimberly’s children from a previous marriage, and again accusing Kimberly of fraud.

On August 5, 2010, Richard objected to a recommendation of the Marin Family Court Service regarding custody and visitation, and once again asserted Kimberly was a risk to abduct, abuse, and neglect their child and her two other children.  On August 9, 2010 after an evidentiary hearing, the Marin County Superior Court rejected Richard’s allegations and entered a restraining order against him.

Despite having had these issues decided against him, Richard thereafter made the same allegations on 15 occasions:  on October 14, 2010, in opposition to the report of Marin’s Family Court Services; on March 10, 2011, in an ex parte application to modify custody and visitation, which was denied; on April 13, 2011, in an ex parte application to modify custody and visitation, which was denied; on July 7, 2011, in an order to show cause to modify custody and visitation; on July 28, 2011, in an ex parte request to modify custody and visitation, which was again denied; on August 1, 2011, in filings seeking to hold Mother in contempt; on August 5, 2011, in an ex parte application to change the location for exchanges of the child; on September 27, 2011, in an ex parte application to modify custody and visitation; on October 27, 2011, in an ex parte application and declaration of contempt; on November 17, 2011, in an ex parte application regarding contempt; on January 3, 2012, in connection with additional contempt allegations; on February 22, 2012, in connection with another contempt allegation; on April 4, 2012, while seeking a temporary restraining order against Kimberly’s older son; on May 23, 2012, in an ex parte application to modify custody and visitation; and on June 11, 2012, in yet another ex parte application to modify custody and visitation.  The court explained that Richard had warned Kimberly that unless she agreed to his terms for child custody and removal of the restraining order, he would, as the court put it, “grind her down.”

In one of the biggest non-surprises ever the family court found Richard to be a vexatious litigant under section 391. A prefiling order is issued that bars Richard from filing any more motions in the family law case without getting pre-approval from the presiding judge.  Of course Richard then appealed that decision of the trial court.  Non-surprise number 2, he loses. The appellate court elaborates on the differences between the security remedy and the prefiling remedy.  A prefiling order does not require the posting of security.  Dubious contempt filings can be used against you, and lead to a prefiling order. Repeatedly filing motions in a family law case can be deemed vexatious litigation. And, attorney’s fees can be awarded against a vexatious litigant.

Please click here to read the entire Rifkin opinion.

Visit www.hardinglaw.com for more information on California family law.

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