Second Appellate Court of Appeal District Seven Published Opinion, vexatious litigant appeal prefiling order does not apply to a defendant in a civil case who is appealing from an adverse ruling.

The Second Appellate district noted the narrow definition of plaintiff and defendant as it applies to the vexatious litigant statue as it pertains to a prefiling order by the court of appeal when the appellant is a defendant in a civil case. The court of appeal reversed the prefiling order by the Appellate Division of the trial court. The same holding applies to a respondent in a family law case who is appealing from an adverse ruling. Family law is civil law as defined in CA family code § 210 which specifies that the rules of civil procedure apply to all civil actions including family law. Actions are defined as civil or criminal law (CA evidence code § 105) and civil actions include civil proceedings (CA evidence code § 120).

Notwithstanding the broad sweep of the term “litigation” as defined by section 391, subdivision (a), and case law applying section 391.7 to certain appellate proceedings, the Court of Appeal in Mahdavi, supra, 166 Cal.App.4th 32 held a person who has been determined to be a vexatious litigant in prior litigation cannot be required to seek leave of court before filing an appeal in a case in which he or she was the defendant. (Id. at p. 37.) The court explained, “A defendant who appeals an adverse ruling is not filing ‘new’ litigation or ‘maintaining’ litigation, but rather, is attempting to ‘undo’ the results of litigation that has been instituted against him or her. We recognize that in McColm, supra, 62 Cal.App.4th at page 1220, the court used broad language in concluding that ‘new litigation’ as used in subdivision (a) of section 391.7, includes the filing of an appeal by a vexatious litigant. However, we conclude that McColm should be read narrowly as holding that a prefiling order applies to prohibit a vexatious litigant plaintiff from appealing rulings of the trial court without first seeking leave of the appropriate appellate court.” (Mahdavi, at p. 41.) Although agreeing with McColm’s holding, the Mahdavi court concluded the purpose of section 391.7 would not be served by imposing its limitations on a defendant, even though that individual had previously brought frivolous claims against others. (Id. at p. 42.)

The Mahdavi court reinforced its interpretation of section 391.7 by examining the definition and use of the terms “plaintiff” and “defendant” in the vexatious litigant statutes, which in its view (and contrary to the analysis in McColm) confirmed that a plaintiff under the statutes is the party who has filed a complaint—“the party who is prosecuting claims against another party.” (Mahdavi, supra, 166 Cal.App.4th at p. 40.) Sections 391.1 through 391.6 all address the rights of a defendant to require the posting of security by a vexatious litigant plaintiff. Even section 391.7, subdivision (b), one of the prefiling order provisions, echoes this language, authorizing a presiding judge to allow the filing of a new lawsuit but to condition the filing upon the furnishing of security “‘for the benefit of the defendants.’” (Mahdavi, at p. 40.) The Mahdavi court also found support in the language of McColm itself for its distinction between a plaintiff who seeks to maintain litigation by filing an appeal or petition for a writ and a defendant who seeks to defend himself or herself in an action by filing an appeal: In discussing the process for deciding whether to grant permission to file the appeal, the McColm court stated consideration should be given to “whether the litigant has demonstrated improper reasons for bringing the original litigation or for taking it to the next court level” (McColm, supra, 62 Cal.App.4th at p. 1217)—language, according to the Mahdavi court, that presumed the prefiling requirement would be applied to a vexatious litigant who had initiated the underlying litigation and was then attempting to appeal an adverse ruling. (Mahdavi, at p. 42.)
The underlying facts and the legal issue in R.H., supra, 170 Cal.App.4th 678—one of the cases identified by the superior court in its letter noting possible contrary case authority—were quite different, as the R.H. court itself observed. (Id. at p. 694.) The question in R.H. was not whether a vexatious litigant must seek leave of court before filing an appeal in a case in which he or she was the defendant, as in Mahdavi, but whether a father’s many unsuccessful appeals and writ petitions in dependency proceedings involving his child, which he had not initiated, were the proper basis for declaring him a vexatious litigant—that is, does a failed appeal count as a “litigation” “finally determined adversely to the person” under those circumstances for purposes of finding the individual a vexatious litigant? R.H. held it did. Although questioning whether Mahdavi was even relevant to the issue before it, the R.H. court nonetheless disagreed with Mahdavi’s basic analysis: “In our view, Mahdavi took too narrow a view of the vexatious litigant law and its purpose. . . . [¶] . . . [¶] . . . [W]e take a broader view of the vexatious litigant law’s, and especially section 391.7’s purpose. It is one which also seeks to protect the court system and its resources as well as other litigants [citations] while at the same time providing a workable means by which a vexatious litigant may proceed with the litigation.” (R.H., at pp. 695-696; see also id. at p. 703 [“the vexatious litigant law exists not only to help defendants but to curb misuse of the court system, unreasonably burdened by obsessive litigants pursing groundless litigation”].) R.H. also challenged Mahdavi’s reliance on the use of “plaintiff” and “defendant” in the security portions of the vexatious litigant statutes, emphasizing that section 391.7, a distinct remedy, authorizes “any party” to move for a prefiling order, which, once issued, applies to the filing of “any litigation presented by a vexatious litigant subject to a prefiling order,” not simply proceedings commenced by a “plaintiff.” (See R.H., at p. 690.)

3. Section 391.7’s Prefiling Order Requirements Do Not Apply to a Self-represented Defendant Appealing from an Adverse Judgment

If one adopts the expansive reading found in the R.H. dicta, section 391.7 requires a self-represented defendant subject to a prefiling order to obtain permission to file an appeal; leave to file an appeal is not required under the narrower interpretation of the provision articulated in Mahdavi’s holding. Based on the language actually used in the vexatious litigant statutes, the legislative history of section 391.7, and precedent from the analogous context of malicious prosecution, we believe Mahdavi’s narrower construction is correct.

a. The language and legislative history of section 391.7 support a construction that does not include self-represented defendants in prefiling requirements Section 391.7 and its prefiling order provisions were not originally part of the vexatious litigant statutes: Sections 391 to 391.6 were enacted in 1963 (Stats. 1963, ch. 1471, § 1, pp. 3038-3039); section 391.7 was added in 1990 (Stats. 1990, ch. 621, § 3, pp. 3072-3073). (See Shalant v. Girardi, supra, 51 Cal.4th at p. 1169; Bravo v. Ismaj, supra, 99 Cal.App.4th at p. 221.) Reviewing the legislative history of section 391.7 in Shalant, the Supreme Court concluded it showed “a clear focus on precluding vexatious litigants from filing in propria persona unmeritorious new ‘actions’ or ‘lawsuits.’ . . . The additional remedy provided by section 391.7 was . . . ‘directed at precluding the initiation of a meritless lawsuit and the costs associated with defending such litigation.’” (Shalant, at p. 1175, italics added by Supreme Court.) In a footnote the Court further explained the legislation that enacted section 391.7 had been proposed by the California Attorney General’s Office, which stated it “‘spends substantial amounts of time defending unmeritorious lawsuits brought by vexatious litigants.’” (Shalant, at p. 1175, fn. 7, italics added by Supreme Court.) The Supreme Court continued, “The committee analysis for the ensuing hearing, in explaining the need for legislation, relayed the Attorney General’s concern with the resources spent defending ‘unmeritorious lawsuits brought by vexatious litigants’ and his view that the law should be strengthened to ‘prevent the waste of public funds required for the defense of frivolous suits.’” (Ibid., italics added by Supreme Court.)5
5 The legislation also expanded the definition of a defendant entitled to the protections of the vexatious litigant statutes to include a “governmental entity.” (Stats. 1990, ch. 621, § 1, p. 3072, amending § 391, subd. (e).)

Consistent with the Legislature’s concern for preventing the initiation of unmeritorious lawsuits, section 391.7, subdivision (c), as enacted in 1990 provided, if a vexatious litigant subject to a prefiling order improperly filed new litigation without first obtaining an order permitting the filing, any party could file a notice with the clerk “stating that the plaintiff is a vexatious litigant subject to a prefiling order.” The filing of such a notice automatically stayed the litigation, which would then be dismissed if leave to file was not thereafter obtained by “the plaintiff” within 10 days. (Stats. 1990, ch. 621, § 3, p. 3073.) As the Court of Appeal explained in Mahdavi, the term “plaintiff” is not commonly understood to include a defendant who has filed an appeal from an adverse decision by the trial court; and the definition of plaintiff in section 391, subdivision (d), as someone who “commences, institutes or maintains a litigation” does not compel any such strained construction here. (See Mahdavi, supra, 166 Cal.App.4th at p. 39; see also § 308 [“[i]n [a civil] action the party complaining is known as the plaintiff, and the adverse party as the defendant”].)6

6 As discussed, Mahdavi analyzed the use of the terms “plaintiff” and “defendant” in the portions of the vexatious litigant statutes relating to orders requiring the plaintiff to furnish security for the benefit of the defendant. (Mahdavi, supra, 166 Cal.App.4th at p. 40.) The R.H. court criticized this analysis, observing that the prefiling order provisions of the statute are separate and distinct from the security provisions. (R.H., supra, 170 Cal.App.4th at p. 694.) Neither Mahdavi nor R.H. discussed the notice, stay and dismissal provisions of section 391.7, subdivision (c), which are an integral part of the prefiling order provisions and which by their express terms are limited to the dismissal of litigation improperly filed by a plaintiff.

Significantly for our purposes, when the Legislature amended section 391.7 in 2011 to authorize a “presiding justice,” as well as a “presiding judge” to permit the filing of litigation by a vexatious litigant subject to a prefiling order, it also amended section 391.7, subdivision (c), to allow either a presiding justice or presiding judge, not just a party to the action, to direct the clerk to file and serve the notice stating “the plaintiff is a vexatious litigant subject to a prefiling order,” thereby triggering an automatic stay of the litigation and its likely dismissal. (Stats. 2011, ch. 49, § 1; see Sen.Com. on Judiciary, Rep. on Sen. Bill No. 731 (2011-2012 Reg. Sess.), as introduced, pp. 6-7.)7 Notwithstanding those amendments, the terminology “plaintiff” and “defendant” was left unchanged. Thus, at the same time the Legislature expressly confirmed case law holding the prefiling order requirements applied to the Courts of Appeal and modified other aspects of section 391.7, subdivision (c), it kept in place the apparent limitation of these provisions to a vexatious litigant plaintiff, rather than expand or clarify that in the appellate context they applied to all vexatious litigant appellants, whether plaintiff or defendant in the trial court.8
Legislative silence is not the most powerful interpretive tool. Nonetheless, we are persuaded by the continued use of the term plaintiff in section 391.7, subdivision (c), taken together with the analysis and holding in Mahdavi and the express purpose of section 391.7 to prevent the need to defend meritless lawsuits, as set forth in the portions of the legislative history emphasized in Shalant, that the requirement for obtaining leave to file does not apply to a vexatious litigant defendant’s appeal from an adverse judgment. (See generally People v. Bonnetta (2009) 46 Cal.4th 143, 150-151 [“[a]lthough the absence of legislative response to a judicial construction of a statute will not be deemed an implied ratification of that construction, when a statute has been construed by the courts and the Legislature thereafter reenacts the statute without changing the interpreted language, a presumption is raised that the Legislature was aware of and has acquiesced in that construction”]; People v. Blakeley (2000) 23 Cal.4th 82, 89 [“when the Legislature amends a statute without changing those portions of the statute that have previously been construed by the courts, the Legislature is presumed to have known of and to have acquiesced in the previous judicial construction”].


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