The cost of litigation in the United States can be extreme and even a party that defends a case and wins often faces significant damages in the time lost and the expense of the defense. It is not uncommon for even a simple civil case to cost hundreds of thousands of dollars to defend.

Thus, a party who is repeatedly sued by the same party and wins still suffers significant costs and there are persons who are prone to file suit, often representing themselves, on a repeated basis. Some people are addicted to litigation. Others are convinced that they are right and will keep finding excuses to sue if they can. Often they are insolvent and thus represent themselves and get special waivers of filing fees from the courts because they are indigent. Meanwhile, the defendant(s) continue to pay large amounts of money on defense and have no choice as to whether to incur the defense costs.

The legislature has recognized that these types of litigants can abuse defendants and waste court resources. Thus, the legislature has enacted certain laws that can make it more difficult for a person defined as a “vexatious litigant” to use the Courts.

Since the right to use our legal system is a right treasured by the citizens, the government has enacted various protections before a person can be so defined and even a vexatious litigant can still use the Courts…subject to certain restrictions.

Note that the definition presumes the vexatious litigant is acting without legal counsel (“in propria personsa”.)  It is assumed that the cost of hiring legal counsel would act as a disincentive to any possible vexatious litigant thus only those representing themselves are so defined.


Vexatious Litigant Defined:

Code Civ. Proc. § 391(b) defines a vexatious litigant as 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 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.

(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.

Prefiling Order Pursuant to Code Civ. Proc. § 391.7:

In addition to other relief, the court may, on its own motion or the motion of any party, enter a prefiling order that prohibits a vexatious litigant from filing any new litigation in California in pro per without first obtaining permission from the presiding justice or presiding judge of the court where the filing is proposed. (Code Civ. Proc. § 391.7(a).) A vexatious litigant who disobeys such a prefiling order may be punished for contempt of court. (Ibid.) The presiding justice or presiding judge should permit the filing of such litigation only if it appears that the litigation has merit and is not being filed for the purpose of harassment or delay. (Code Civ. Proc. § 391.7(b).) 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 Code Civ. Proc. § 391.3. (Ibid.)

A vexatious litigant subject to a prefiling order under Code Civ. Proc., § 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 litigations subject to prefiling orders. (Code Civ. Proc., § 391.8(a).) 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. (Code Civ. Proc., § 391.8(c).) However, 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. (Code Civ. Proc., § 391.8(b).)


Defendant’s Motion During the Case:

In any litigation pending in any California court, 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 Code Civ. Proc. § 391.3. (Code Civ. Proc. § 391.1.) 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. (Ibid.)

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. (Code Civ. Proc. § 391.2.) Except for an order dismissing the litigation pursuant to subdivision (b) of Code Civ. Proc. § 391.3, no determination made by the court in determining or ruling upon the motion shall be or be deemed to be a determination of any issue in the litigation or of the merits thereof. (Ibid.)

Code Civ. Proc. § 391.3 provides:

(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 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.

If 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. (Code Civ. Proc. § 391.4.)

Note that the Judicial Council of California keeps a list of those deemed vexatious litigants.



Access to the courts is a right that is not easily restricted in the United States and most judges will only classify a party as a vexatious litigant when the evidence is clear. Further, many critics of the current system complain that the criteria to have one so classified requires the long suffering defendants to spend tens or hundreds of thousands in defense costs before such a motion will be entertained by the courts.

Nevertheless, such relief is possible and our firm has been successful in achieving such classification in past cases in state courts…and once achieved the classified party will have extreme difficulty in proceeding. It is perhaps noteworthy that one of the parties we had so classified then sued the California Superior Court and the California Supreme Court, claiming that there was a conspiracy against her.

That action was not allowed to proceed…since she was a vexatious litigant.