In general usage the term, “vexatious” refers to someone who does something blameworthy – someone who deliberately harasses or annoys someone else.
“. . . lacking justification and intended to harass . . .” (Webster’s Third New International Dictionary, 2002, S.v., “vexatious”)
However, under California’s vexatious litigant statute (Cal.Civ.Proc.Code, sec. 391 et seq (“VLS”) not all people so labeled – in fact, very few – have done anything truly blameworthy. There is no requirement for “bad-faith” as there is in other sanctioning statutes, such as Cal.Civ.Proc.Code,sec. 128.5 for example:
“128.5. (a) A trial court may order a party, the party’s attorney,
or both to pay the reasonable expenses, including attorney’s fees,
incurred by another party as a result of bad-faith actions or tactics
that are frivolous or solely intended to cause unnecessary delay. . . .” (emphasis added).
The “vexatious” label is vague. Consider, for example, the scholarly study from the Parliament of Victoria, Australia, Law Reform Committee, Inquiry into vexatious litigants (Parliamentary Paper, Dec. 2008):
“The Committee encountered radically different descriptions of vexatious litigants during its Inquiry. Recent newspaper articles describe them as ‘pests’ and ‘nuisances’. Mr Simon Smith, who has written extensively on the issue, told the Committee they were ‘people of ideas and talent. They are reformers, activists and performers seeking to advance their ideas and talents through the legal system and beyond.’ Forensic psychiatrist Professor Paul Mullen told the Committee ‘[t]hese are damaged people, these are people at risk, and it is important to try to at least not add to the damage that they have suffered’.”.
The number of (labeled) vexatious litigants in Victoria, Australia (some 15 or so according to the study) is tiny compared to over two thousand in California. And so it is likely that California produces many more of these “radically different descriptions of vexatious litigants” .
I shall attempt here to identify five major categories of people labeled “vexatious litigant” under the VLS:
Category One – Malicious
Category Two – Delusional
Category Three – Naive
Category Four – Strong But Not Strong Enough
Category Five – Victims of the Statute Itself
If you know of additional categories or if you have information about cases that fall under one or another of the categories please make use of the forum below.
Category One – Malicious
These are people who do actually litigate vexatiously. They deliberately use the machinery of the courts as a weapon to harass other people or public officials.
Take, for example, Bidna v. Rosen, 19 Cal. App. 4th 27 (1993)
“After the trial court awarded primary physical custody of a couple’s daughter to the husband, the wife’s mother told him that she would use her superior financial resources to keep reopening custody issues until husband finally “gave up” custody of the child. Over a period of less than a year the wife (allegedly funded by her mother) brought a series of six totally meritless ex parte applications and OSC’s (orders to show cause) to change custody. Husband, himself an attorney, incurred over $200,000 in attorney fees to fend off the various custody proceedings.”.
The wife’s conduct is malicious and would be a Category One example except for the fact that all parties were represented by counsel – so the VLS could not apply here at all. [It would be interesting to see statistics regarding litigation abuse comparing pro se litigants to represented litigants.]
Green v. Arnold (W.D.Tex.1981) 512 F.Supp. 650 is cited by Wolfgram v Wells Fargo Bank (1997) 53 Cal.App.4th 43 to justify the statute’s “reasonable inference” that losing 5 lawsuits in a 7 year period means that “. . . the suer has been using the court system inappropriately and will continue to do so”. However, Mr. Green is an extreme exception – an outlier of the nth degree. The following description is from the Green opinion:
“Clovis Carl Green, Jr. is an exceptional case, even in the exotic realm of prisoner litigation. . . Judge Hunter lists more than 500 suits filed by Green between 1972 and 1979.. . . . .Besides the suits filed in his own behalf, Green has made a career of filing suits for other inmates as a “jailhouse lawyer.” . . .Since no human being could really generate more than 554 causes of action in one lifetime, one would assume that many of Green’s filings have been purely repetitions of previous suits, and so they were. . . . In addition, most courts have found them frivolous, irresponsible and unmeritorious. . . . , and some have been found malicious and in bad faith as well. In some instances, Green’s allegations have been so offensive that the Court has ordered his pleadings stricken as “vile and scandalous.” . . . Furthermore, Green has attempted . . . to use terroristic threats in an attempt to intimidate court personnel . . . “ (emphasis added).
Mr. Green’s deliberate abuse of the judicial system could even be considered criminal. See California Penal Code §§ 158 & 159.
““158. Common barratry is the practice of exciting groundless judicial proceedings, and is punishable by imprisonment in the county jail not exceeding six months and by fine not exceeding one thousand dollars ($1,000).”; “159. No person can be convicted of common barratry except upon proof that he has excited suits or proceedings at law in at least three instances, and with a corrupt or malicious intent to vex and annoy.”.
Mr. Green is a Category One vexatious litigant. However, he doesn’t bear the slightest resemblance to the majority of thousands of people named on the VL blacklist. It is misleading for Wolfgram to cite Mr. Green as justification for the statute’s arbitrary limitation of five cases in a seven year period (CCP 391(b)(1)). [And it is totally arbitrary. Why, after losing four lawsuits, someone remains an upstanding citizen but on losing a fifth lawsuit he suddenly becomes stigmatized as a “vexatious litigant”, loses a fundamental right of citizenship, and is blacklisted by the state government? What is magical about the number five? For example, a relative executed both a will and a trust under undue influence. Is the contestant more vexatious because he now requires two actions instead of one (based on what his relative did)?]
Category Two – Delusional
These people appear to be harassing others using the courts, but it is not their intention to do so. They have no mens rea (guilty mind or intention) and so their litigation is not truly vexatious. They suffer from the malady known as “paranoia querulans”:
“paranoia querulans: . . .
A form of paranoia or delusional disorder associated with incessant litigious actions intended to obtain legal remedies for perceived wrongs that appear trivial or insignificant to others. . . .
(From: paranoia querulans in A Dictionary of Psychology)”
“The querulant and the paranoid litigant once occupied a privileged position among psychiatric disorders . . . Such people were regarded as inhabiting the borderline between delusional psychosis and the fanatical preoccupations of the psychopathic personalities . . . Although occasional studies of vexatious litigants continue to appear . . . the category fell into disrepute, undermined by criticisms that it was doing no more than pathologising those with the energy and commitment to pursue their rights . . .” (Grant Lester, et al, “Unusually persistent complainants”, British Journal of Psychiatry (2004) at 352 – online at http://bjp.rcpsych.org/content/bjprcpsych/184/4/352.full.pdf).
While English-speaking countries treat unreasonable complainants as a legal issue, other countries, e.g., France and Germany, treat them as a medical issue.
“. . . this paper examines the history of querulous paranoia and vexatious litigation in the English‐speaking countries from the nineteenth century to today: this article suggests that the lack of deep‐reaching research on querulous paranoia in these countries is due to a broad cultural, legal and medical context which have caused unreasonable complainants to be considered a purely legal, rather than a medical issue.” (Benjamin Lévy, “From paranoia querulans to vexatious litigants: A short study on madness between psychiatry and the law. Part 2”, History of Psychiatry, Sept 2014, 25:299-316).
Research into this malady has been limited.
“Psychiatric literature suggests that some vexatious litigants have a mental or behavioural disorder, but research is limited and the Committee was not able to make a definitive finding.” (Inquiry, supra, at xxvi).
Having been used as a tool of repression against dissidents in the former Soviet Union, the malady has been unjustifiably discredited:
“The usual ‘diagnostic masks’ used to deal with dissidents were ‘paranoia querulans’ or constant complaining and ‘schizotypal personality disorder.’ . . . the concept of ‘querulous ravings’ was manifested in the conviction of the ‘sick mind’ that his or her personal rights were being infringed; writing endless complaints and statements demanding the reinstatement of justice was adduced as the necessary proof of the condition. . . . this was simply a question of stamping out dissent, rather than of treating people who were ill. . . . . Soviet psychiatry’s unscrupulous use of paranoia querulans as a tool of repression resulted in international discreditation of the condition and, consequently, a refusal to include it in the 10th revision of the International Statistical Classification of Diseases and Related Health Problems” (Kotsyubinsky, “Has punitive psychiatry returned to Russia?” OpenDemocracy [London] 18 Oct 2013.).
Category Three – Naive
These are people who have legitimate grievances but due to ignorance of the legal process – not due to maliciousness, bad faith or delusions – fail to present their cases appropriately. They may become frustrated with the antique machinery of the court system and then begin litigating in a manner that is annoying to judges and others. They file papers naively believing that the courts exist to achieve justice among citizens. [Of course, in reality, our courts exist chiefly to enrich the lawyer industry!]
Ordinary citizens not represented by a lawyer – and often with little or no knowledge of the law (pro se litigants) – burden the courts and take time away from money-making, neatly-packaged litigation presented by expensive lawyers (which is much easier for judges to deal with).
As one Australian judge put it:
“ . . . litigants “with a blindness to procedural reality” are both a problem and quite distressing for judges.” (Freckelton,Vexatious Litigants: A Report on Consultation with Judicial Officers and VCAT Members, Law Reform Comm., Victoria, Australia, 1 October 2008 ).
Consider, for example, the doctrine of res judicata (that a matter cannot be relitigated once it has been judged on the merits). VLS, at sec. 391(b)(2) labels, as a VL, a pro se litigant who “repeatedly relitigates or attempts to relitigate” a matter already decided. Now, VLS applies only to the pro se litigant “ . . . who [is] generally the intelligent and educated layman [who] has small and sometimes no skill in the science of law” (see Gideon v. Wainwright, 372 U.S. 335 (1963)). An ordinary layman might think that if newly discovered evidence shows clearly that a mistake was made in a judgment, the court would want to correct its mistake. He doesn’t realize that within the cult of lawyers and judges res judicata is a sacred doctrine.
Res judicata is no friend of true justice. It reduces the courts to mere dispute-resolution machinery:
“The doctrine of res judicata precludes the parties from showing what is or may be the truth. Why should not the truth prevail? The answer is based on public policy. The interests of the state and of the parties require the putting of an end to controversies.” (Scott, Collateral Estoppel by Judgment, 56 Harvard L.Rev. (1942) 1,1).
It should be noted that res judicata doctrine is absent where the paradigm of litigation is to really seek the truth and justice.
“While the Roman and the English law . . . had no scruples and no difficulty in applying the Res Judicata doctrine, Jewish Law was faced with a serious problem . . . it was aware that public policy demands that once the trial ended and a decision given by a competent court, there should be no further trial on the same matter, otherwise there will never be an end to it. But against this demand stood up another demand . . . Jewish law could not allow that the court should do something untrue, something which would be unjust if all the facts of the case were considered . . . Justice demands that every person should receive what is due to him. The inconvenience and waste of time caused to the court cannot overweigh this demand of justice. Public policy or the good of society had to give way to this powerful demand for justice, which overrides all other considerations.” (Chigier, Judge and Justice in Jewish Law (Jerusalem, Israel,
Ariel ), p.157-158).
Category Four – Strong But Not Strong Enough
These are people who have a strong case, whose litigation is meritorious and who litigate with procedural correctness but who lose their case because the opposing lawyers are simply stronger at playing the litigation game.
A layman pro se litigant, with little or no lawyering skill, could easily lose five perfectly meritorious litigations in a seven year period without having done anything blameworthy at all – except for not hiring a lawyer. Wolfgram v Wells Fargo Bank (1997) 53 Cal.App.4th 43 – the leading opinion cited as authority for upholding the constitutionality of VLS – concedes this:
“As a matter of common experience even many meritorious suits fail, due to the vagaries of the trial process if nothing else. Many more colorable suits fail, either due to pretrial disposition or failure to persuade the trier of fact.”.
Our adversary litigation system is a gladiatorial contest – a throwback to the ancient “trial by combat” (known as “ trial by wager of battel” introduced to England by William the Conqueror). Today it has evolved into something comparable to a chess game. The winner is the one who can afford a more cunning lawyer. [Why, in the 21st century, are we stuck with such a primitive system? Because it makes money for the lawyer industry!] US Supreme Court Justice Felix Frankfurter has said:
“Litigation is the pursuit of practical ends, not a game of chess.” (Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 69 (1941)).
However, the consensus of opinion seems to be otherwise. For example, a large body of litigation literature – just as chess literature – deals with strategy and tactics. A search of the Los Angeles County Law Library catalog for titles having the terms “Litigation” and [“Strategy” or “Tactics”] results in 159 title entries including terms such as the following: “Basic trial tactics”; “Questioning techniques and tactics”; “Eyewitness testimony : strategies and tactics”; “Pretrial discovery : strategy & tactics”; “winning psychological strategies and tactics for lawyers”; “the art of jury persuasion”; “Successful trial tactics”; “Winning jury trials : trial tactics”; etc., etc.
Tricks, lies, and gimmicks are lawyers’ tools to try to win the game. They have appellate court approval to employ even frivolous tactics:
“ . . . a party may combine sound and ultimately successful defenses with frivolous ones designed solely to harass the opposing party.”(In re Kun (1989) 868 F.2d 1069).
Litigation is a contest and the judge is a mere umpire. Chief Justice Roberts of the United States Supreme Court proclaimed the following:
“Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules . . . .” (Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005)).
The beginner at chess is nearly certain to lose to a grandmaster. Likewise, the layman pro se litigant is likely to lose to the professional player.
Category Five – Victims of the Statute Itself
These are people who do not fall, even technically, under the statute but – because of the statute’s susceptibility to abuse – they have become its victims. My case is an example of this.
The VLS was intended to target the Category One VL but sweeps the other categories in its wake. This is characteristic of an “overbroad statute”.