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Jim Reilly
Jim Reilly, Attorney
Category: Business Law
Satisfied Customers: 1805
Experience:  CA Atty since 1976, 10 years as General Counsel CA corps.
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Ihave been declared a vexatious litigant in Palo Alto Small

Customer Question

Ihave been declared a vexatious litigant in Palo Alto Small Claims Court, California, What is the procedure to cancel this vexatious litigant status
Submitted: 6 years ago.
Category: Business Law
Expert:  Jim Reilly replied 6 years ago.

Was this declaration pursuant to Code of Civil Procedure section 391.1 in a particular case or 391.7 as a prefiling order?

Under which subdivision of section 391 was the order made?
Customer: replied 6 years ago.
It was a prefiling order, I don't know what section it is
Expert:  Jim Reilly replied 6 years ago.
Does the order specify the grounds on which it was entered? I ask because different rules apply to different kinds of cases or types of litigation activities. For example, the excessive filing provision of 391, subd. (b)(1), does not apply to small claims cases.
Customer: replied 6 years ago.
apparently it has to do with too many filings at once, seven, but all of them were justified. The judge assumed another case which I had already lost, I was trying to sue again, not true. I will appeal but in the mean time what is your opinion
Expert:  Jim Reilly replied 6 years ago.
One last clarification, were these filings small claims cases?
Customer: replied 6 years ago.
Yes, all those filings were small claims cases
Expert:  Jim Reilly replied 6 years ago.
Okay, Customer, thanks for the clarification. Small print first:

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Now, to answer your question, as I mentioned above, the vexatious litigation law does not apply to small claims cases. Code of Civil Procedure section 391, subd. (b)(1), provides one of the definitions of a "vexatious litigant" as someone who:

(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.

As I read that section, the vexatious litigant provision does not apply to small claims court or cases.

Unfortunately, the recently enacted legislation which specifies the procedural remedy for a person identified as a vexatious litigant does not go into effect until January 1st of next year. Code of Civil Procedure section 391.8, which was chaptered on July 11, but was not passed as urgency legislation and therefore becomes effective on January 1st, provides for the filing of a petition by the "vexatious litigant" by which the designation can be challenged.

Therefore, at the moment, there is no specific statutory procedure for challenging this designation. However, even in the absence of statutory authority, there are two possible courses of action:

1) The cases can be presented to the judge who issued the order, in advance of filing, and if approved by him they can then be filed.

2) A non-statutory motion for reconsideration of the "vexatious litigant" designation could be filed on the ground that 391.7 does not authorize that designation for small claims filings. (Also, the code requires that there be five cases other than small claims cases which meet the statutory definition -- that is, have been decided against you or left pending for two years or more without justification. If there have not been five such previous cases, that would be another ground upon which to challenge the designation.)

Thanks for asking your question here on JustAnswer. If you have any other questions, please let me know.
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Expert:  Jim Reilly replied 6 years ago.
Good afternoon Customer and thank you for the accept. I looked at some of your other questions and noticed one about recording small claims proceedings and wanted to let you know several things:

Generally speaking, California small claims cases are not recorded (and there is no court reporter, unless ordered in advance by one of the litigants, for which the normal court reporter's fees must be paid). In fact, court proceedings in California are typically never recorded except by special arrangement approved in advance by the court.

California's rules of court also prohibit participants or observers from recording the proceedings without the prior approval of the trial court.

In fact, video cameras (and even regular cameras) are not even allowed into California courthouses without prior court approval. I recently completed a criminal trial in Santa Clara County in which it was necessary to take some photographs during the trial and I had to get court approval to bring the camera into the building.

In some courts (including those in Santa Clara county), cameras are taken at the security screening and temporarily stored until the owners leave the building; in other courts, persons with cameras are simply told to take them back to their vehicles.

In my experience, California courthouses all contain signs stating that cameras are prohibited (of course, I haven't been in every California courthouse, but I have handled cases in 16 different counties and the rule is the same in all of those.

Cell phones may not be used in California courtrooms for either calling or taking photos. If anyone is caught surreptitiously using a cell phone to take photos, the cell phone is likely to be confiscated by the bailiff.