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Litigation Abuse
Basic information
What is the definition of vexatious litigation in California?
Vexatious litigation is a phrase used to describe the situation when a person files court proceedings only for the purpose of annoying, harassing, or upsetting the other party. Also known as litigation abuse, it is a common way that abusers continue the pattern of domestic violence against their intimate partner. It can be filed in any civil case in any state or federal court.
For litigation to be considered “vexatious litigation,” one of the following must be true:
- The abuser has started or continued (maintained) at least five cases, other than small claims cases, in the past seven years without a lawyer (in propria persona) and either:
- the abuser lost all of the cases; or
- the cases were allowed to stay pending for at least two years without a trial or hearing for no good reason (unjustifiably);
- Without a lawyer, the abuser repeatedly relitigates or attempts to relitigate the same claims that s/he lost against you;
- Without a lawyer, the abuser repeatedly files motions, pleadings, or other papers, conducts unnecessary discovery, or uses other tactics that are without a legal basis (frivolous) or only meant to cause unnecessary delay;
- The abuser has been previously declared a “vexatious litigant” in any state or federal court in a case based upon the same or substantially similar facts to the case being filed against you; or
- While you are protected by a restraining order against the abuser, s/he starts or continues one or more cases that are found to have no legal basis (merit) against you, and these cases caused you to be harassed or intimidated.1
If you are facing vexatious litigation, you may be able to ask the judge to issue an order that restricts the ability of the abuser to continue to file new cases or motions against you.
1 Cal. C.C.P. § 391(a), (b)
What can a judge include in an order to end vexatious litigation?
If, after a hearing, the judge decides that the abuser is a vexatious litigant, the judge can:
- order the abuser to provide “security” if there is no reasonable chance that the abuser will win the case against you;1 and
- issue a “pre-filing order” that prohibits the abuser from filing any new cases against you unless the abuser has a lawyer or a judge allows the filing.2
Note: If the abuser does not provide the security as ordered, then the case against you will be dismissed.3
When a pre-filing order is in place, the judge will only allow the abuser to file a new case if it has value (merit) and is not being filed to harass you or cause delay.4 If the abuser was represented by a lawyer at the time s/he filed against you, and then the lawyer withdraws from the case, the judge will dismiss the case if s/he believes it no merit and was filed just to harass you or cause delay.5
1 Cal. C.C.P. § 391.3(a)
2 Cal. C.C.P. § 391.7(a); visit the California Courts Self-Help Guide to see a model pre-filing order.
3 Cal. C.C.P. § 391.4
4 Cal. C.C.P. § 391.7(b)
5 Cal. C.C.P. § 391.3(b)
What is “security”?
Security means a legally binding promise (undertaking) to pay your reasonable expenses related to the vexatious litigation, including attorney’s fees and costs.1 The law requires that the abuser give security to the court in the hope that the abuser will instead choose to withdraw the vexatious litigation to avoid losing the security payment.
1 Cal. C.C.P. § 391(c)
Getting the order
Am I eligible to request an order to end vexatious litigation?
You can file a motion under this law if you are the defendant and the abuser is the plaintiff filing one or multiple court cases against you that qualify as vexatious litigation.1
1 Cal. C.C.P. § 391
When can I request an order to end vexatious litigation? What will happen when I file this motion?
You can file a motion asking for an order dismissing the vexatious litigation or requiring the abuser to give a security payment to the court at any point in the case before the judge issues a final judgment.1 Your request for both of these remedies should be made in the same motion papers.2
Once you file this motion, the case will be paused (stayed) until the judge makes a decision. If the judge grants your motion to dismiss the vexatious litigation, then you do not have to file any response. However, if the judge denies your motion to dismiss, you will have up to ten days to respond to the abuser’s case after either:
- the judge denies your motion and allows the case to proceed against you; or
- the judge grants your motion for a security and the abuser gives you written notice that the required security has been posted.3
1 Cal. C.C.P. § 391.1(a)
2 Cal. C.C.P. § 391.3(c)
3 Cal. C.C.P. § 391.6
Is there a fee to request an order to end vexatious litigation?
There is no fee to file a motion seeking to end vexatious litigation if you are protected by a restraining order against the abuser and you are filing because s/he is trying to harass or intimidate you by starting or continuing one or more cases against you with no legal basis (merit).1
1 Cal. C.C.P. §§ 391(b)(5); 391.1(b)
After the hearing
If the judge issues pre-filing restrictions, what happens if the abuser files new court papers anyway?
The court keeps a list of everyone who has been found to be a vexatious litigant and has a pre-filing order issued against them. The clerk of the court is not supposed to accept any new cases from someone on that list unless a judge gives permission for the case to be filed.1
If you are served with new papers from the abuser without an order allowing the case to be filed, you can simply file a notice with the clerk that the abuser is a vexatious litigant subject to a pre-filing order. The judge may also file this notice and serve it on you if the judge recognizes that the case should never have been filed.
Once you file this notice, the abuser’s case will be paused (stayed) automatically while the judge considers what to do. Then, the judge will either dismiss the case or issue an order allowing the case to be filed and have that notice served upon you. You will then have up to ten days to respond to the case after being served with a copy of the judge’s order allowing the case to be filed.2
1 Cal. C.C.P. § 391.7(c), (f)
2 Cal. C.C.P. § 391.7(c)
Can the abuser file a motion to end the pre-filing order?
The abuser can file a motion asking the judge to remove (vacate) the pre-filing order against him/her, as well as deleting his/her name from the list of vexatious litigants.1 The judge will grant this request only if there is a significant (material) change since the order was issued and the abuser shows it would serve justice for the order to end.2 If the judge denies this request, the abuser cannot file a second request to end the order for at least 12 months.3
1 Cal. C.C.P. § 391.8(a)
2 Cal. C.C.P. § 391.8(c)
3 Cal. C.C.P. § 391.8(b)
My request was denied. What will happen next?
If the judge allows the abuser’s case to proceed, you will have up to ten days to respond after you are served with the judge’s order.1 The case that the abuser has brought against you will then proceed normally and you will be expected to participate in it.
You can read more about appealing an order if you believe the judge made an error, or you can look for a lawyer if you need advice on your options at this stage. If you are hoping to prevent the abuser from contacting you outside of court, you may also want to read about Domestic Violence Restraining Orders and Civil Harassment Orders.
1 Cal. C.C.P. § 391.7(c)
