The California vexatious litigant statute: five losses in seven years, security, and a prefiling order

California's vexatious litigant statute is aimed at a narrow target: people who litigate in propria persona and do so repeatedly and unsuccessfully. It has two remedies — an order requiring security, and a prefiling order barring new cases without leave — and both are available on a defendant's motion or the court's own.

Note what the statute does not reach. Every route into the definition depends on self-representation, so a represented party, however aggressive, is outside it.

The definition

CCP 391(a): "Litigation" means "any civil action or proceeding, commenced, maintained or pending in any state or federal court." That includes federal cases, which is broader than it first appears.

Subdivision (b) defines a vexatious litigant as 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 defendants, or (ii) the cause of action, claim, controversy, or any of the issues of fact or law determined by the final determination against the same defendants.
• (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.

Three separate routes, and only the first involves counting.

On route (1): five is the threshold, the window is seven years, small claims cases are excluded, and a case that simply sat unresolved for two years counts alongside one that was lost.

On route (2): the relitigation must be against the same defendants as the case that was finally determined.

On route (3): the language tracks CCP 128.5 — "frivolous or solely intended to cause unnecessary delay" — but here the consequence is a status, not an expense award.

The section also contains a further route, referred to in CCP 391.1(b), concerning a person protected by a restraining order.

The security motion

CCP 391.1(a): in any litigation pending in any court of this state, "at any time until final judgment is entered," a defendant may move, on notice and hearing, for an order requiring the plaintiff to furnish security, or for an order dismissing the litigation under CCP 391.3(b).

The showing required: the motion for security "shall be based upon the ground, and supported by a showing, that

the plaintiff is a vexatious litigant and that there is not a reasonable probability that they will prevail in the litigation against the moving defendant."

Both elements. Vexatious-litigant status alone does not produce security; the defendant must also show the claim is unlikely to succeed against that defendant.

Restraining-order cases — subdivision (b): a motion on the ground that the plaintiff is a vexatious litigant under CCP 391(b)(5) "may be brought only by a person protected by the restraining order," and such a person "shall not be required to pay a filing fee."

The hearing

CCP 391.2: at the hearing "the court shall consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion."

And a protection for the plaintiff: except for a dismissal under CCP 391.3(b), "no determination made by the court in determining or ruling upon the motion shall be or be deemed to be a determination of any issue in the litigation or of the merits thereof."

So a finding that there is no reasonable probability of prevailing does not decide the case. It supports the security order and nothing more.

What the court orders

Security — CCP 391.3(a): if, after hearing the evidence, the court determines that the plaintiff is a vexatious litigant and that there is no reasonable probability of prevailing 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."

Mandatory on those findings, with the amount and deadline left to the court.

Dismissal — subdivision (b): if the court determines that "the litigation has no merit and has been filed for the purposes of harassment or delay, the court shall order the litigation dismissed."

But that remedy is tightly confined. It "shall only apply to litigation filed in a court of this state by a vexatious litigant subject to a prefiling order pursuant to Section 391.7 who was represented by counsel at the time the litigation was filed and who became in propria persona after the withdrawal of his or her attorney."

Four conditions, all of which must hold. In practice this addresses a specific situation: a case filed properly through counsel by someone already under a prefiling order, where counsel then withdrew.

One motion — subdivision (c): a defendant "may make a motion for relief in the alternative under either subdivision (a) or (b) and shall combine all grounds for relief in one motion."

The prefiling order

CCP 391.7(a) is the remedy with lasting effect:

In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, 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 justice or presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court.

Note the scope: new litigation, in the courts of this state, in propria persona. A litigant under a prefiling order who retains counsel is not barred.

The standard for leave — subdivision (b): the presiding justice or presiding judge "shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay," and "may condition the filing … upon the furnishing of security for the benefit of the defendants as provided in Section 391.3."

The clerk's role — subdivision (c): the clerk "may not file any litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant first obtains an order from the presiding justice or presiding judge permitting the filing." Where the clerk mistakenly files it without the order, "any party may file with the clerk and serve" a notice, and the section sets out what follows.

The prefiling order therefore operates at the counter, before a case exists.

How the pieces fit

A short checklist

If you are moving

1. Check the route. Five self-represented, non-small-claims losses in seven years is only one of the ways in; repeated relitigation and repeated unmeritorious filings are others.
2. Count federal cases too. CCP 391(a) defines litigation to include proceedings in any state or federal court.
3. Prepare the second element. Security requires no reasonable probability of prevailing against you, not merely a weak case generally.
4. Combine your grounds. CCP 391.3(c) requires one motion.
5. Bring evidence. CCP 391.2 lets the court consider affidavits or live testimony.
6. Consider asking for a prefiling order as well. It is available on any party's motion, and it is the remedy with continuing effect.

If you are the subject of such a motion

1. Test the count. Small claims cases are excluded, cases within the seven-year window only, and the litigation must have been conducted in propria persona.
2. Address the merits element. Even if the status finding stands, security requires a finding on the probability of your prevailing against the moving defendant.
3. A ruling here does not decide your case. CCP 391.2 says so expressly, except on a CCP 391.3(b) dismissal.
4. If a prefiling order is entered, retaining counsel takes you outside it — the bar is on filing in propria persona.
5. Do not file around the order. Disobedience is punishable as contempt, and the clerk is directed not to accept the filing.

Where these sections live

• CCP 128.5 — Bad faith actions or tactics
• CCP 128.7 — Signature; certification; sanctions
• CCP 391 — Definitions; who is a vexatious litigant
• CCP 391.1 — Motion for security or dismissal
• CCP 391.2 — The hearing
• CCP 391.3 — Order for security; dismissal
• CCP 391.7 — Prefiling orders
• CCP 1005 — Notice periods for motions

This page explains what the Code says. It isn't legal advice, and the Judicial Council maintains the list of litigants subject to prefiling orders separately from anything reproduced on this site.