Family law cases: divorce, custody battles, child and spousal support establishment and enforcement, discovery, restraining orders and on and on. Family law litigation is stressful and personal. But when you have an ex-spouse or a parent who keeps filing frivolous motions with the court and loses each motion but does not stop, what can you do?
This type of litigation is expensive and stressful but is there a remedy? Yes, in California, vexatious litigant give you rights to put a stop to it. You can keep your ex spouse or the other parent from filing another motion until what they intend to file is pre-approved by the presiding judge. A bond or “security” (putting up money aside that will go to you if they lose) may even be required.
A vexatious litigant is a self-represented individual who repeatedly files petitions, applications, or motions that without merit. The statutory authority is California Code of Civil Procedure 391(b) defines a vexatious litigant as a person who does any of the following:
(1) In the immediately preceding 7-year period has commenced, prosecuted, or maintained in pro per status at least 5 litigations other than in a small claims court that have been finally determined adversely to the person or unjustifiably permitted to remain pending at least 2 years without having been brought to trial or hearing.
(2) After a litigation has been finally determined against the person, repeatedly litigates or attempts to litigate, in pro per, the validity of the determination against the same defendant(s) as to whom the litigation was finally determined or 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(s) as to whom litigation was finally determined.
(3) In any litigation while acting in pro per, 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.
If this request to have a person defined a vexatious litigant is successful, two protective remedies become available. The court determines the amount of security and the time it must be posted. These payments will be reasonable expenses incurred in connection with the litigation. Additionally, approval of the presiding judge will be required before a motion is filed.
The statutory provisions that address the vexatious litigant protect the opposing party against the financial burden of defending against repetitious non-meritorious lawsuits and prevent the abuse of the abuse of the judicial process.