How would I petition to have somebody branded as a vexatious litigant?

Asked almost 2 years ago - Walnut Creek, CA

This is her first small claims lawsuit against me, but it is entirely nonsensical b.s. I don't want to have to battle her in court my whole life just because she thinks she has cases against me. She has been annoying and threatening me, and threatening to sue me ever since we met. She makes her living off of suing people for nonsense, and I want it to stop.

Attorney answers (3)

  1. Neil Pedersen

    Contributor Level 20

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    Answered . In California, section 391 of the Code of Civil Procedure defines the qualifications of a vexatious litigant. Under section 391, a vexatious litigant typically is a pro se plaintiff who has (1) lost at least five pro se lawsuits in the preceding seven years, (2) sued the same defendant for the same alleged wrong after losing, (3) repeatedly filed meritless papers, or (4) used frivolous tactical devices or already been declared a vexatious litigant for similar reasons. (Cal. Code Civ. Proc. ยง 391(b) Because the statute uses the disjunctive "or," the court must separately evaluate each of the four factual scenarios.

    However, two core elements must exist before the court even gets to the four scenarios listed above. First, the person must be a plaintiff or a "plaintiff equivalent." The term plaintiff means the person who commences, institutes, or maintains litigation or who causes it to commence, institute, or maintain, including an attorney acting in pro per.

    A second core element is that the person must be acting without counsel. Thus, to be declared a vexatious litigant the person must be appearing in propria persona, or be referenced in the court filings as appearing in pro per or pro se. If a lawyer represents the party in the subject litigation, the vexatious litigant statute does not apply.

    I hope this helps. Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed... more
  2. Christine C McCall

    Pro

    Contributor Level 20

    11

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    Answered . On these facts -- this is the first case and she hasn't yet failed to prevail even on this one -- you have no chance to get her declared vexatious. Rule of thumb: the law doesn't put much value in anyone's predictive capabilities . So, rationales such as "I don't want to have to battle her in court my whole life just because ...," where you are projecting a future course of someone else's conduct, will not ordinarily serve as sound grounds for a legal restraint.

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice.... more
  3. Wayne Vincent Robert Smith

    Pro

    Contributor Level 3

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    Answered . I know how frustrating it can be to be sued when there are facts indicating the plaintiff may not have a valid case. Lots of other facts that may affect your question. You are not likely to suceed in having her declared a vexatious litigant right now. But if there is a basis for finding her claim is meritless, then you may consider using an attorney to file a cross complaint in Superior Court for abuse of process [misuse of legal process for bad purposes] and this would remove the Small Claims court from jurisdiction. You need to discuss this with an attorney soon as there may be no way to do this after you have a hearing in Small Claims. And you need to be prepared to pay attorney fees which likely cannot be recovered. Every case is fact intensive and there appears to be lots more facts involved in your dispute than are set out out in your question. Good luck.

    My answer through Avvo does not create an attorney-client relationship. This input is only to offer some general... more

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