Forms ueber alles

The California judicial council is particularly fond of inventing forms for litigants to use. These forms are not based on the actual law of the subject matter at hand and just add to confusing the relevant judiciary and the public. 

Case in point is the belief that the optional MC 701 form is supposed to have a mandatory application for new litigation to be filed. There are a number of problems with this “form’. First of all it’s optional to be used by a litigant not the court, although some courts blatantly discriminate against litigants and force them to use said forms otherwise the “litigation” is rejected.  Secondly it does not relate to the CCP section 391.7  statute as the word application is missing in its entirety from the statute.  The statute merely specifies leave to file litigation but does not specify the format of said “leave” or whether the leave is in writing or orally. 

CCP 391.7 (a) reads as follows: “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”.

The forms also do not abide by CA Supreme Court holdings which classifies new litigation as lawsuits not motions or pleadings in one case. The development of these forms is ironic as Chief Justice Cantil-Sakauye leads  the policy making body of the California courts, the judicial council responsible for developing said forms.

The CA supreme court, in a written opinion drafted by our Chief Justice Tani Cantil-Sakauye, in Shalant v. Girardi, (2011) 253 P. 3d 266 commented on applying the vexatious litigant statute as a whole to individual motions, pleadings filed in one lawsuit and that legislative intent of the statue is to apply the vexatious litigant statute to unmeritorious new “actions” or “lawsuits, not motions or pleadings in one lawsuit.

“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 CCP § 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. (CCP § 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. (CCP § 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 CCP § 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 CCP §§ 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.”





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