Calling for legislative changes to the VLS statute.

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).)[5] 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.”[7] 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.

https://viewsandnewsriversidesuperiourcourt.wordpress.com/2013/08/31/proposed-proposal-to-judicial-council-to-abolish-vexatious-litigant-statute-in-family-law-cases-input-from-public-requested/

viewsandnewsriversidesuperiourcourt.wordpress.com/2014/02/01/4th-district-division-two-appeal-court-is-legislating-from-the-bench-discriminates-against-litigants/

https://viewsandnewsriversidesuperiourcourt.wordpress.com/2014/04/19/this-is-what-a-family-law-vexatious-litigant-in-the-state-of-california-looks-like/

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.
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3 comments on “Calling for legislative changes to the VLS statute.

  1. Reblogged this on News and Views Riverside Superior Court and National Family Law Abuse and commented:

    CA supreme court: “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).)[5] 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.”[7] 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).

  2. California’s vexatious litigant law is unconstitutional, but not just in Family Court. My mother paid $160K to her son, my brother, to remodel her home. I worked for my brother. She paid another $45,000 to subcontractors and for materials. We were left without a roof, exterior walls, doors and windows.

    Before the remodel, the home was worth $750,000. After paying the $200K, and another $130K to put a roof and stucco back on for the oncoming winter, the home was appraised at only $57,000. Still has no interior walls, floors, kitchen and bathrooms, etc.

    My mother sued my brother. An un-named vexatious Litigant prefiling order (See Cal. CCP Sec. 391.7) Was filed with the court. It was un-named because it was a California Judicial Council Form with a box for identification in upper left hand corner which had been left blank, but Presiding Judge entered it anyway. When it was brought to his attention, the judge withdrew the order as having been “baseless” and entered in error, but the damage had been done.

    My brother concealed the existence of his liability insurance by answering “no” to Form Rog No. 4.1 about the existence of insurance. (See Cal. Civil Code Sec. 47(b)(3); Morales v. Cooperative of American Physicians, Inc. 180 F. 3d 1060 (9th Cir. 1999). My brother presented the false prefiling order at the trial of the construction case. That was in 2009.

    We recently learned insurance companies were told to stay away from the site in 2007 based on my brother’s allegations to the insurance companies that we are vexatious. Indeed, his liability insurance never contacted us. Our own homeowners insurance did the same, and also admitted that it was because of the ignominious effects of the CA vexatious litigant label.

    As a result, we had to sue for policy breach and bad faith. We had to sue our lawyers for malpractice. Our own lawyers then tried to declare us vexatious and lost. We had to sue for malpractice of a malpractice case. That attorney took $6000 a month from us only to find out about the vexatious litigant accusations, and then she kept our money and filed for chapter 7 bankruptcy. (Yes, the lawyer went bankrupt). This all eventually led to my mother’s own bankruptcy, which was denied because all those who destroyed our home now had costs and attorney fee claims against us which threw my mother’s bankruptcy over the chapter 13 limit.

    We tried to sue for extrinsic fraud when we discovered the concealed insurance and latent damages in 2013, and the judge never heard our opposition to the opponent’s Anti-SLAPP motion (See Cal. CCP 425.16.) I was physically restrained from participating in my own hearing because of the pre-filing order against me. I filed for permission to appeal (Cal. CCP 391.7(b)) with the 4th Dist Court of Appeal, and was denied. I tried to file a petition for writ of mandate with the California Supreme Court, and it denied the filing of my petition, despite Cal. Rules of Court 8.20.

    I was refused hearing dates for motions to tax costs and oppose attorneys fees. When I filed the motions with my own chosen dates, the court denied the motion sua sponte (without the other side opposing) because I had not obtained a court approved hearing date. I have proof, because the court’s clerk left the message on my answering machine, and I kept it.

    I will be going to the US Supreme Court within 90 days. I have nothing but respect for the court. I understand that court resources are limited, and that frivolous filings should be curtailed to preserve resources. At the same time, I cannot condone the violation of my Fourteenth amendment right to due process. I cannot condone a law that brands me “vexatious,” because as a plaintiff I have the burden of a preponderance of the evidence. Once I am branded vexatious, I am no longer credible, even if that branding was in error, and even if I have the facts and law on my side and deserve meaningful access to the court to be made whole again.

  3. I am involved in a divorce, my ex-wife took sole custody of our child (Jan 7th 2005).

    1) Originally, she claimed that my house was unsafe and that I was tardy to daycare. I suspended the daycare records and filed a motion with the court showing she had lied about the time on every date listed in her complaint and that I was 10-15 minutes early on each.
    2) I then filed a second motion showing that she had filed falsified and counterfeit bank records, while attempting to obtain property.
    3) And I filed a motion to regain custody showing that I had purchased a brand new home, so that the original Final custodial order – which said that I would be held on professionally supervised visitation until I repaired my home – could be updated.

    4) When all three of these motions had been dismissed, where I was never allowed to speak. I then filed an appeal to the issue of custody citing that I had met the requirements to a change in custody. Note: since I was not allowed to speak at the custody hearing not one word, the explanation of the new house was too vague. And her lawyer had my appellant arguments mentioning the new house stricken from the record. So I lost on the appeal.

    5) I then filed my fifth motion seeking only reasonable visitation the commissioner stated that she was denying the motion, but ordering a mediation, a 730, and a trial, stating that at trial she would issue a final order. – But my ex-wife’s lawyer asked for five continuances, and then the commissioner that order the trial was replaced. The new commissioner Angel Bermudez, ordered a readiness hearing and then cancelled the trial, stating that I was not shown a significant change of circumstances.

    At this point I had filed 5-mptions that had been denied. Therein I was declared a vexatious litigant. It is now Sept. 2015. I still remain on professionally supervised visitation at 6-hours a week. All of my motions and my appeals were all denied without being heard, because I was denied permission as a vexatious litigant.

    I hired an attorney and filed motions with counsel, but the Hemet court says that even with an attorney I still need permission and they simply dismiss the motions without hearing them. I am not entitled to a hearing even with counsel as a vexatious litigant.

    For almost 11-years now, I continue to pay for professionally supervised visitation, I pay $50 per hour to see my son, and while we visit he cries telling me that his mother gets drunk and punches on his face, he tells me that he has to keep it a secret because otherwise they will take him away and he doesn’t know where he would live. He asked me to help him (crying in front of the professional monitor). I have also found through child protective services that there have been 9-mandated CPS calls about abuse – less than half investigated with no results. My ex also enjoys using Facebook, she post funny messages about how she was so drunk that she was hospitalized and how to talks her way out of DUIs.

    Every once in a while my ex-wife has to renew her restraining order, so I get to say a few words in court. During the last renewal, Commissioner Angel Bermudez stated that he would allow my ex-wife to testify without considering truth, and that he would not allow a trial to dispute the evidence. My ex-wife testified that she needed to renew the restraining order because almost a year after I was placed on supervised visitation that she claims that I brought my son into her place of business and that I tortured him in front of her. That she scram in terror and that police hunted me down. She also said that she left the police report at home. – Here I tried to explain to Bermudez that I was on professional supervised visitation at the time of the alleged assault and that the CLETS restraining order was in place at the time of the alleged assault. That I had a police clearance showing that I had never been arrested. I repeatedly asked for a trail so that I could show that she never called the police and that I never saw my son (not once in that entire year). Making the whole story an impossibility. But the judge refused to allow me a trial because he told me that I didn’t have Right’s because I was a vexatious litigant. I tried to appeal, the appellate court refused to her the appeal because I was a vexatious litigant.

    I have only been to court on one issue (my one divorce), I was found to be a vexatious litigant based upon 5-motions that were dismissed. And even with an attorney I am still not allowed a hearing without permission, and I have never been granted permission.

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