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Court of Appeal, First District, California.

Patricia A. McCOLM, Plaintiff and Appellant, v. WESTWOOD PARK ASSOCIATION, Defendant and Respondent.

No. A078680.

Decided: February 06, 1998

Patricia A. McColm in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.

Patricia A. McColm, a vexatious litigant ordered to post a $1,000 undertaking as a condition to proceeding with her appeal, seeks rehearing of that portion of the order requiring an undertaking.   She argues that the vexatious litigant sections do not apply to her situation because her appeal is not “litigation” and her adversary, Westwood Park Association (Westwood), is not a “defendant” in the appeal but the “respondent.”   She contends as well that, because this court has accepted her application to proceed in forma pauperis, it cannot require her to post a $1,000 undertaking, which she claims she cannot afford.   She objects to this court requiring an undertaking without conducting an evidentiary hearing to determine its amount.

McColm's contentions are unsound.   Her application for rehearing is denied.

Decisional Law

In Stafford v. Russell (1962) 201 Cal.App.2d 719, 722, 20 Cal.Rptr. 112, the Second District suggested the Legislature take action to ease the burden imposed upon the courts by vexatious litigants.   The Legislature responded by enacting Code of Civil Procedure sections 391-391.6,1 which Division Two of this District then upheld against a constitutional attack (Taliaferro v. Hoogs (1965) 236 Cal.App.2d 521, 46 Cal.Rptr. 147).

In the intervening years, appellate courts repeatedly have applied the vexatious litigant statute to trial court proceedings (see, e.g., Tokerud v. CapitolBank Sacramento (1995) 38 Cal.App.4th 775, 45 Cal.Rptr.2d 345;  Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 38 Cal.Rptr.2d 849;  Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 35 Cal.Rptr.2d 93;  Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 19 Cal.Rptr.2d 19;  Banks v. State of California (1993) 14 Cal.App.4th 1147, 18 Cal.Rptr.2d 127;  Camerado Ins. Agency, Inc. v. Superior Court (1993) 12 Cal.App.4th 838, 16 Cal.Rptr.2d 42;  First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 261 Cal.Rptr. 116;  Muller v. Tanner (1969) 2 Cal.App.3d 445, 82 Cal.Rptr. 738.)   On other occasions the courts have applied the vexatious litigant statute to appeals and writ petitions filed in the Court of Appeal.  (See, e.g., In re Shieh (1993) 17 Cal.App.4th 1154, 21 Cal.Rptr.2d 886;  Andrisani v. Hoodack (1992) 9 Cal.App.4th 279, 11 Cal.Rptr.2d 511;  In re Whitaker (1992) 6 Cal.App.4th 54, 8 Cal.Rptr.2d 249;  In re Luckett (1991) 232 Cal.App.3d 107, 283 Cal.Rptr. 312.)

Although the appellate courts have not articulated their reasons for applying the statute to appellate writs and appeals, their willingness to do so stems from the statute's broad definitions for the terms “litigation,” “plaintiff” and “defendant.”

The Vexatious Litigant Statutes

The vexatious litigant statute authorizes a “defendant” to bring a motion to require a “plaintiff” to furnish security.   Defendant must prove that the plaintiff is a “vexatious litigant” 2 and that there is no reasonable probability that plaintiff will prevail in the litigation. (§ 391.1.) The statute contemplates a hearing to determine whether the plaintiff qualifies as “vexatious” (§ 391.2) and instructs the court to require security if it finds plaintiff has no reasonable chance of prevailing.   Security is “for the benefit of the moving defendant” and in “such amount and within such time as the court shall fix.” (§ 391.3.) If security is not furnished as ordered, the “litigation” shall be dismissed as to the “defendant for whose benefit it was ordered furnished.” (§ 391.4.) While the motion is pending, if it is filed before trial, the litigation is stayed.   Implicitly, the motion may also be filed after trial, in which case the “litigation” shall be stayed for such period as the court “shall determine” after denial of the motion or after furnishing security. (§ 391.6.)

The foregoing sections apply where the vexatious litigant question is raised in a pending proceeding.   The court is required to determine both whether the person is a vexatious litigant and whether an undertaking should be required because the plaintiff is not likely to prevail.

Section 391.7, added in 1990 (Stats.1990, ch. 621, § 3, pp. 3072-3073),3 furnished the courts an additional resource for addressing vexatious litigant problems.   This newer section operates beyond the pending case and affects the litigant's future filings.   It authorizes a court to “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 judge of the court where the litigation is proposed to be filed.” (§ 391.7, subd. (a).)

When a prefiling order is in force, “[t]he presiding judge shall permit the filing of such litigation only if it appears that the litigation has merit and has not been filed for purposes of harassment or delay.   The 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.” (§ 391.7, subd. (b).)  If the clerk mistakenly files any litigation presented by a litigant who is subject to a prefiling order, the litigant may be required to seek the presiding judge's permission to proceed. (§ 391.7, subd., (c).)   The clerk of any court issuing a prefiling order is to provide a copy of such order to the Judicial Council, which maintains and disseminates a list of persons subject to such orders. (§ 391.7, subd. (d).) 4

 McColm reads sections 391.1-391.7 in isolation and concludes, erroneously, that they apply only to plaintiffs and defendants in trial courts.   Reading these sections with the definitions in section 391 shows that McColm's interpretation of the statute is wrong.

 Throughout the vexatious litigant statute, “ ‘Litigation’ means any civil action or proceeding, commenced, maintained or pending in any state or federal court.” (§ 391, subd. (a).)  Manifestly, “any civil action or proceeding” includes any appeal or writ.   Of course, “any state or federal court” includes the California Court of Appeal.

“ ‘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.” (§ 391, subd. (d).)  An appellant or writ petitioner certainly commences, institutes or attempts to maintain the litigation in this court.

 “ ‘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, subd. (e).)  Any respondent or real party in interest in this court is a person against whom litigation is brought.

 Applying these broad definitions does not mean that this court will routinely reject proper attempts by vexatious litigants to appeal or to file writ petitions.   It means only that the court will enforce the vexatious litigant statute by requiring vexatious litigants subject to prefiling orders to seek the permission of the administrative presiding justice before proceeding.   The decision whether to allow the litigant to proceed will be made on an individual basis, taking into account such factors as the nature of the action below, the nature of the lower court's ruling, whether writ or appeal is the appropriate procedure for seeking review in the Court of Appeal, the litigant's claims of error and whether the litigant has demonstrated improper reasons for bringing the original litigation or for taking it to the next court level.

Application of the Statute to McColm's Appeal

McColm was declared a vexatious litigant by the San Francisco County Superior Court in another action and is subject to a prefiling order.   On December 29, 1997, she submitted an application to proceed with an appeal against Westwood.5  She seeks in her proposed appeal to show that the superior court improperly dismissed the underlying civil action when McColm failed to appear for a hearing.   She has explained in this court that her action against Westwood stems from the homeowner's association allegedly operating with a suspended business license.   She claims personal injury and fraud and complains about various actions taken by the association, including continuing to collect fees from homeowners while its operating status was in doubt.

On January 8, 1998, as Administrative Presiding Justice for the Court of Appeal for the First Appellate District, taking into consideration the factors mentioned above, I signed an order permitting McColm to proceed with the appeal.   The order conditioned this permission upon McColm posting a vexatious litigant bond in the amount of $1,000 on or before March 2, 1998.

Undertaking Requirement and Hearing

McColm has sought rehearing from that portion of the order which required her to post an undertaking.   She raises a number of arguments:  First, McColm contends that, under the statute, bonds are for the benefit of defendants, not respondents like Westwood.   However, as explained above, “defendant” has a broad meaning in the vexatious litigant statute and includes the respondent in an appeal (or the real party in interest in a writ proceeding).

 Next McColm claims that section 391.7 incorporates section 391.3 and therefore requires a hearing and evidence to support an undertaking.   She correctly observes that section 391.7 authorizes the court to require “security for the benefit of the defendants as provided in Section 391.3.” (§ 391.7, subd. (b).)  However, she misreads section 391.3.

Sections 391.2 and 391.3 require a hearing and evidence on the question of whether plaintiff is a vexatious litigant, but section 391.3 states only that if the court finds plaintiff is vexatious and is not likely to prevail, it “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.”   The statute says nothing about a hearing and evidence on the amount of the undertaking.   Nor does Devereaux v. Latham & Watkins, supra, 32 Cal.App.4th 1571, 38 Cal.Rptr.2d 849 (hereafter Devereaux ), the only authority McColm cites, impose such a requirement.

Amount of the Undertaking

 McColm notes that this court has granted her request for a waiver of appeal costs.   She anticipates only a small record and therefore very little cost associated with the appeal.   She argues no bond should have been required.

Again McColm ignores a statutory definition.  Section 391, subdivision (c), defines “security” to mean “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 ․ by a vexatious litigant.”

The bond is not to cover McColm's costs for obtaining the record.   It is to secure Westwood against expenses, including attorney fees, incurred because of McColm's appeal.   Unlike McColm, who may proceed in pro. per., Westwood must use an attorney to defend itself in McColm's litigation.  (Albion River Watershed Protection Assn. v. Department of Forestry & Fire Protection (1993) 20 Cal.App.4th 34, 37, 24 Cal.Rptr.2d 341.)

McColm asserts that because this court is aware that she qualifies for social services and has “no income available other than subsistence,” the $1,000 amount is an undue burden.   It is not.

In Devereaux, supra, 32 Cal.App.4th at pages 1587-1588, 38 Cal.Rptr.2d 849, the court sustained a $25,000 security required of a litigant proceeding in forma pauperis:  “As to appellant's claim that she is unable to post the security, we need only refer to the vexatious litigant statutes which nowhere require the trial court to take into consideration the plaintiff's means in determining the amount of security to be required. (§ 391 et seq.)   Indeed, as respondent points out, the issue was raised in the legislative record but is not reflected in the statutes as enacted.   This suggests that the Legislature did not intend for the court to concern itself with this consideration.” 6

The Appeal as New Litigation.

 McColm contends that because an appeal is not among the “Special Proceedings” established by section 1063 et seq., and referred to in In re Bittaker (1997) 55 Cal.App.4th 1004, 1010, 64 Cal.Rptr.2d 679 (Bittaker ), it is not governed by the vexatious litigant statute.   She is wrong.

Bittaker held only that the vexatious litigant statute does not apply to writs of habeas corpus.   It did not examine the limits of the statute's application to civil proceedings.  “Litigation” for purposes of vexatious litigant requirements encompasses civil trials and special proceedings, but it is broader than that.   It includes proceedings initiated in the Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or other criminal matters.

McColm's request for rehearing is denied.


1.   All statutory references are to the Code of Civil Procedure.

2.   “ ‘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 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.” (§ 391, subd. (b).)

3.   Senate Bill No. 2675 was introduced by Senator Milton Marks and sponsored by the Attorney General.   In a letter urging Governor George Deukmejian to sign the measure, Senator Marks said he expected the measure to “ensure that our court system is no longer a venue for those who have no interest in resolving legitimate disputes.”

4.   Sections 391.1-391.6 differ from section 391.7 in some significant ways.   Under the former sections, the litigant may proceed with the case without showing a reasonable probability of prevailing, but the litigant will have to furnish security to proceed if the court finds success improbable.   Under the latter section, the litigant is barred from filing the action or proceeding if success is considered improbable.   When the litigant is subject to a prefiling order, even if the court finds enough chance of success to allow the litigant to proceed, it may compel the litigant to furnish security as a condition to maintaining the action.Section 391.7's extra burden upon the vexatious litigant arises because a state court has taken a second step in addressing the vexatious litigant problem and has determined that no court or adverse party should be burdened by the particular plaintiff's meritless litigation.

5.   This notice of appeal is one among many McColm has filed in the recent past, representing at least 10 lawsuits she has filed in the superior court against at least 10 different defendants.  (See Action Nos. A059761, A072522, A076016, A078088, A078248, A078676, A078677, A078678, A079576, A079672.)   The first two of these were filed before the prefiling order was made against McColm.   Several of the others were ordered dismissed when McColm failed to file a timely application for permission to proceed with the appeals.   In one case, A076016, an appeal now pending, McColm received permission to proceed without posting security.

6.   The $25,000 amount in Devereaux was supported by an affidavit from respondent's attorney.  (32 Cal.App.4th at p. 1588, 38 Cal.Rptr.2d 849.)   The $1,000 amount here requires no similar support.   This appeal, if it proceeds, will cost Westwood many times that amount.

STRANKMAN, Administrative Presiding Justice.

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