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Report No. 192

California

In the State of California, provisions of Section 39 of the Code of Civil Procedure refer to 'vexatious' litigation.

Section 391(a) defines 'litigation' as civil litigation commenced in a State or federal Court. Clause (b) defines vexatious litigant as follows:

"(b) '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 re-litigates or attempts to litigate, 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 occurance.

Section 391(c) defines 'security' as an undertaking to assure payment which may be reasonably incurred by the opposite party. Section 3(d) defines 'plaintiff' and Section 391(e) defines 'defendant'.

Section 391.1 permits a defendant to move the Court for an order requiring the plaintiff to furnish 'security' on the ground that plaintiff is a vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the moving defendant.

Section 391.2 provides that, at the hearing upon such motion, the Court shall consider such evidence, oral or written, by witnesses or affidavit, as may be material to the ground of the motion. No determination made by the Court in determining or ruling the motion shall be or be deemed to be a determination of any issue in the litigation or of the merits thereof.

Section 391.3 states that if, after such hearing, the Court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the Court 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.

Section 391.4 states that if security is not furnished, the litigation shall be dismissed as regards the moving defendant for whose benefit the security was ordered.



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