Supreme Court of California Justia
Citation 51 Cal. 4th 1164, 253 P.3d 266, 126 Cal. Rptr. 3d 98

Shalant v. Girardi

Filed 6/23/11

IN THE SUPREME COURT OF CALIFORNIA

JOSEPH L. SHALANT,
Plaintiff and Appellant,
S182629
v.
Ct.App. 2/1 B211932
THOMAS V. GIRARDI et al.,
Los Angeles County Super. Ct.
Defendants and Respondents. )
No. BC363843
____________________________________)

JOSE CASTRO,
Plaintiff and Respondent,
v.
Ct.App. 2/1 B214302
JOSEPH L. SHALANT,
Los Angeles County Super. Ct.
Defendant and Appellant.
No. BC366214
____________________________________)

Plaintiff Joseph L. Shalant, having previously been declared a vexatious
litigant (Code Civ. Proc., § 391, subd. (b)),1 was subject to a prefiling order,
issued under section 391.7, barring him ―from filing any new litigation‖ (id., subd.
(a)) in propria persona in a California court without leave of the court‘s presiding
judge. He filed the present litigation through counsel, but lost his representation

1
All further statutory references are to the Code of Civil Procedure unless
otherwise specified.


while the action was pending. On defendants‘ motions, the trial court dismissed
Shalant‘s complaint on the ground he had not complied with section 391.7. The
Court of Appeal reversed, holding section 391.7 applies only to actions filed in
propria persona by vexatious litigants.
We agree with the Court of Appeal. By its unambiguous terms, section
391.7, subdivision (a) authorizes only a ―prefiling‖ order prohibiting a vexatious
litigant from ―filing‖ new litigation without prior permission, and only when the
litigant is unrepresented by counsel. Subdivision (c) of the section provides that
the court clerk shall not ―file‖ any such litigation without an order from the
presiding judge permitting the ―filing,‖ and if the court clerk mistakenly ―files‖ the
litigation without such an order, the litigation is to be dismissed. Section 391.7‘s
dismissal provision did not apply here because Shalant was not in propria persona
when he filed the litigation.
This interpretation, which is compelled by the statutory language, does not
leave a defendant without protection against a vexatious litigant‘s continued
pursuit of an action initially filed through counsel. In this situation, a defendant in
the pending litigation may move for an order requiring the vexatious litigant
plaintiff to furnish security. (§ 391.1.) If security is ordered but not furnished, the
action is to be dismissed. (§ 391.4.)
FACTUAL AND PROCEDURAL BACKGROUND
In 2002, in an action unrelated to this one, the superior court entered an
order declaring Shalant, an attorney, to be a vexatious litigant as defined in section
391. The court further entered a prefiling order under section 391.7, prohibiting
him from ―filing any new litigation in propria persona in the courts of California
without approval of the presiding judge of the court in which the action is filed.‖
In May 2005, the State Bar Court recommended that Shalant be disbarred and
2
placed him on inactive status. This court ordered Shalant disbarred in December
2005.
On December 22, 2006, Shalant, through Attorney L‘Tanya M. Butler, filed
the present action against Thomas V. Girardi and National Union Fire Insurance
Company (National Union). The action arose from Shalant and Girardi‘s
representation of Jose Castro and his wife in a personal injury suit in which
National Union insured the defendant. When the personal injury case settled,
Girardi paid Shalant $745,000 of the proceeds pursuant to a fee-splitting
agreement, but Shalant alleges he was owed an additional $27,745 in fees and
costs.
In May 2007, Attorney James T. Biesty substituted in for Butler as
Shalant‘s attorney. With the exception of one month when Shalant represented
himself, Biesty represented Shalant in this action until March 2008, when Butler
returned as attorney of record. On June 26, 2008, however, Butler applied, over
Shalant‘s objection, for permission to withdraw as counsel, citing ―an irremediable
breakdown in the attorney/client relationship.‖ The trial court granted Butler‘s
application on July 15, 2008.
With Shalant now acting in propria persona, Girardi and National Union
moved to dismiss his complaint against them under section 391.7. The trial court
gave Shalant until September 14, 2008, to retain counsel or obtain permission
from the presiding judge to proceed in propria persona, and set a hearing on the
motions to dismiss for September 18. On that date, the court granted the motions,
finding that Shalant had ―failed to rectify his violation under section 391.7.‖ The
court entered judgment for National Union, and Shalant (represented by counsel)
appealed.
3
The Court of Appeal reversed the judgment and directed the superior court
to deny the motions to dismiss. We granted Girardi and National Union‘s joint
petition for review, which raised only the issue of dismissal under section 391.7.
DISCUSSION
The vexatious litigant statutes (§§ 391-391.7) are designed to curb misuse
of the court system by those persistent and obsessive litigants who, repeatedly
litigating the same issues through groundless actions, waste the time and resources
of the court system and other litigants. (Bravo v. Ismaj (2002) 99 Cal.App.4th
211, 220-221.) Sections 391 to 391.6 were enacted in 1963, while section 391.7,
the section at issue here, was added in 1990. (Stats. 1963, ch. 1471, § 1, pp.
3038-3039; Stats. 1990, ch. 621, § 3, pp. 3072-3073.)
―Vexatious litigant‖ is defined in section 391, subdivision (b) as a person
who has, while acting in propria persona, initiated or prosecuted numerous
meritless litigations, relitigated or attempted to relitigate matters previously
determined against him or her, repeatedly pursued unmeritorious or frivolous
tactics in litigation, or who has previously been declared a vexatious litigant in a
related action. Section 391.1 provides that in any litigation pending in a California
court, the defendant may move for an order requiring the plaintiff to furnish
security on the ground the plaintiff is a vexatious litigant and has no reasonable
probability of prevailing against the moving defendant. The action is stayed
pending determination of the motion. (§ 391.6.) If, after a hearing, the court finds
for the defendant on these points, it must order the plaintiff to furnish security ―in
such amount and within such time as the court shall fix.‖ (§ 391.3.) The
plaintiff‘s failure to furnish that security is grounds for dismissal. (§ 391.4.)
―In 1990, the Legislature enacted section 391.7 to provide the courts with
an additional means to counter misuse of the system by vexatious litigants.
Section 391.7 ‗operates beyond the pending case‘ and authorizes a court to enter a
4
‗prefiling order‘ that prohibits a vexatious litigant from filing any new litigation in
propria persona without first obtaining permission from the presiding judge.
(McColm v. Westwood Park Assn. [(1998)] 62 Cal.App.4th [1211,] 1216.) The
presiding judge may also condition the filing of the litigation upon furnishing
security as provided in section 391.3. (§ 391.7, subd. (b).)‖ (Bravo v. Ismaj,
supra, 99 Cal.App.4th at p. 221.)
Section 391.7 did not displace the remedy provided in sections 391.1 to
391.6 for defendants in pending actions; by its terms it operates ―[i]n addition to
any other relief provided in this title . . . .‖ (§ 391.7, subd. (a).) Rather, it added a
powerful new tool designed ―to preclude the initiation of meritless lawsuits and
their attendant expenditures of time and costs.‖ (Bravo v. Ismaj, supra, 99
Cal.App.4th at pp. 221-222.)
Once a person has been declared a vexatious litigant, the court, on its own
or a party‘s motion, may ―enter a prefiling order which prohibits [the person] from
filing any new litigation in the courts of this state in propria persona without first
obtaining leave of the presiding judge of the court where the litigation is proposed
to be filed.‖ (§ 391.7, subd. (a).) Disobedience of the order is punishable as a
contempt. (Ibid.) ―The 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. The presiding judge may condition the filing of
the litigation upon the furnishing of security for the benefit of the defendants as
provided in Section 391.3.‖ (§ 391.7, subd. (b).) Court clerks are directed not to
file litigation from a vexatious litigant subject to a prefiling order without the
presiding judge‘s order permitting the filing. If the clerk mistakenly does file the
action, any party may seek dismissal through a notice that the plaintiff is subject to
a prefiling order. ―The litigation shall be automatically dismissed unless the
plaintiff within 10 days of the filing of that notice obtains an order from the
5
presiding judge permitting the filing of the litigation as set forth in subdivision
(b).‖ (§ 391.7, subd. (c).)
As the court in McColm v. Westwood Park Assn., supra, 62 Cal.App.4th at
page 1216, footnote 4, explained: ―Sections 391.1-391.6 differ from section 391.7
in some significant ways. Under the former sections, the litigant may proceed
with the case without showing a reasonable probability of prevailing, but the
litigant will have to furnish security to proceed if the court finds success
improbable. Under the latter section, the litigant is barred from filing the action or
proceeding if success is considered improbable. . . . [¶] Section 391.7‘s extra
burden upon the vexatious litigant arises because a state court has taken a second
step in addressing the vexatious litigant problem and has determined that no court
or adverse party should be burdened by the particular plaintiff‘s meritless
litigation.‖
To summarize, our vexatious litigant statutes provide courts and
nonvexatious litigants with two distinct and complementary sets of remedies. In
pending litigation, a defendant may have the plaintiff declared a vexatious litigant
and, if the plaintiff has no reasonable probability of prevailing, ordered to furnish
security. If the plaintiff fails to furnish the security, the action will be dismissed.
(§§ 391.1-391.6.) In addition, a potential defendant may prevent the vexatious
litigant plaintiff from filing any new litigation in propria persona by obtaining a
prefiling order and, if any new litigation is inadvertently permitted to be filed in
propria persona without the presiding judge‘s permission, may then obtain its
dismissal. (§ 391.7.)
In the present case, defendants pursued the wrong statutory remedy for the
situation in which they found themselves. Although Shalant is a vexatious litigant
subject to a prefiling order under section 391.7, he did not violate that order by
filing the present action through counsel, and the action was therefore not subject
6
to dismissal as violative of the order. As the Court of Appeal below explained:
―The prefiling order entered against Shalant (on a form approved by the Judicial
Council) prohibits Shalant ‗from filing any new litigation in propria persona in the
courts of California without approval of the presiding judge of the court in which
the action is to be filed.‘ . . . [¶] Shalant filed only one civil action or proceeding
in this case, namely, his action against Girardi and National Union. He did not file
it in propria persona but rather filed it through counsel. Nothing in the prefiling
order prohibits Shalant from continuing to prosecute or maintain an action in
propria persona as long as he did not file the action in propria persona (and
nothing in the statutory language would authorize the issuance of a prefiling order
containing such a prohibition). Shalant therefore did not violate the prefiling
order, and the trial court erred by granting the motions to dismiss.‖
Defendants could have proceeded under section 391.1 for an order
requiring Shalant to post adequate security before continuing to prosecute his
action against them, making it subject to dismissal under section 391.4 if he failed
to do so. On remand, they may still pursue this remedy. They could not, however,
properly seek dismissal under section 391.7, as it governs only the filing of new
litigation, and the present action, filed as it was through counsel, did not violate
the section 391.7 prefiling order against Shalant.
In concluding otherwise, defendants and the trial court relied on Forrest v.
Department of Corporations (2007) 150 Cal.App.4th 183 (Forrest), which held
that ―the requirements of a prefiling order, under section 391.7, remain in effect
throughout the life of a lawsuit and permit dismissal at any point when a vexatious
litigant proceeds without counsel or without the permission of the presiding
judge.‖ (Id. at p. 197.)
Despite the breadth of its holding, the Forrest court may have reached the
right result on the facts before it. Forrest, a vexatious litigant subject to a prefiling
7
order, was unrepresented by counsel when she filed the action; she later retained
counsel, who filed and served an amended complaint but withdrew before trial.
(Forrest, supra, 150 Cal.App.4th at pp. 188-190.) Thus, Forrest violated the
prefiling order when, acting in propria persona, she ―file[d] . . . new litigation‖
without permission of the superior court‘s presiding judge (§ 391.7, subd. (a); see
Forrest, at p. 188), and her action was arguably subject to dismissal under section
391.7, subdivision (c) despite counsel‘s later filing of an amended complaint.2
The Forrest court erred, however, in holding broadly that a prefiling order under
section 391.7 ―permit[s] dismissal at any point when a vexatious litigant proceeds
without counsel or without the permission of the presiding judge.‖ (Forrest, at
p. 197.) By its terms, the statute and orders made pursuant to it apply only to the
vexatious litigant‘s filing of new litigation.3
The Forrest court noted that in an order barring a vexatious litigant from
―filing any new litigation‖ in propria persona (§ 391.7, subd. (a)), ―the word ‗new‘
plainly refers to a civil lawsuit filed after entry of the prefiling order. It does not,
as Forrest contends, refer to an early procedural stage in the lawsuit.‖ (Forrest,
supra, 150 Cal.App.4th at p. 196.) This observation was correct: An action that
was improperly filed in propria persona by a plaintiff subject to a prefiling order
remains, under section 391.7, subdivision (c), subject to dismissal at any point in
its pendency, not only at the early stages. At the same time, however, the statutory
term ―filing‖ plainly refers to filing the lawsuit, not to prosecuting or maintaining

2
We have no occasion here to decide whether, or under what circumstances,
the filing of an amended complaint constitutes the filing of new litigation within
the meaning of section 391.7.
3
We therefore disapprove Forrest v. Department of Corporations, supra,
150 Cal.App.4th 183, to the extent it held section 391.7 applies to acts other than
the filing of new litigation in propria persona.
8


it. If the plaintiff was represented by counsel when he or she filed the action,
section 391.7 does not apply at all.
The Forrest court deemed it anomalous for section 391.7‘s application to
be limited to the filing of a new lawsuit, given that a person can be declared a
vexatious litigant for having ―prosecuted‖ or ―maintained‖ prior unmeritorious
litigation in propria persona, or for having filed unmeritorious motions or
employed frivolous or delaying tactics in the course of prior litigation. (§ 391,
subd. (b)(1), (3); see Forrest, supra, 150 Cal.App.4th at p. 197.) We detect no
anomaly. As previously explained, defendants in a pending action brought by a
vexatious litigant have a remedy under sections 391.1 to 391.6. Section 391.7,
added in 1990 to supplement those existing statutes, ―operates beyond the pending
case and affects the litigant‘s future filings.‖ (McColm v. Westwood Park Assn.,
supra, 62 Cal.App.4th at p. 1216.) A potential defendant who, because of a
prefiling order under section 391.7, is never sued, is thus also relieved of the
burden of defending against a vexatious litigant‘s unwarranted prosecution of an
action or use of frivolous or delaying tactics in its prosecution. If, as here, the
plaintiff is able to file the action through counsel, sections 391.1 to 391.6 continue
to provide a remedy against the plaintiff‘s unjustifiable behavior in the pending
case.4

4
Nor does our plain language reading of section 391.7 conflict with the
definition of ―litigation‖ in section 391, subdivision (a), as including an action
―maintained or pending‖ in a state or federal court. That definition, while
applicable to section 391.7, does not broaden that statute‘s exclusive authorization
for an order barring a vexatious litigant from ―filing‖ any new litigation without
prior permission of the court‘s presiding judge. (§ 391.7, subd. (a).)
9



Defendants observe that ―litigation‖ is defined, for purposes of the
vexatious litigant statutes, as ―any civil action or proceeding‖ (§ 391, subd. (a),
italics added) and that the term ―proceeding‖ can, in some contexts, refer ―not only
to a complete remedy . . . but also to a mere procedural step that is part of a larger
action or special proceeding.‖ (Rooney v. Vermont Investment Corp. (1973) 10
Cal.3d 351, 367, fn. omitted.) From this they argue that a vexatious litigant who is
barred by a prefiling order from ―filing any new litigation‖ in propria persona
(§ 391.7, subd. (a)), and who becomes self-represented while an action is pending,
―cannot take any further procedural steps in the action without first obtaining
permission from the presiding judge . . . .‖
Reading the vexatious litigant statutes as a collective whole, defendants‘
construction is not a plausible one. If ―litigation‖ as defined in section 391,
subdivision (a) included every motion or other procedural step taken during an
action or special proceeding, and that definition were applied throughout the
vexatious litigant statutes, several provisions would take on absurd, unworkable,
or clearly unintended meanings. Under section 391, subdivision (b)(1), a person
could be declared a vexatious litigant for losing five motions—all of which might
have been filed in the same lawsuit—in a seven-year period. Section 391,
subdivision (b)(3)‘s reference to ―motions, pleadings, or other papers‖ filed in the
course of a litigation would make little sense if every motion, pleading, or paper
filed was itself a new litigation. Under section 391.1, the defendant could move
for an order requiring the plaintiff to post security each time the plaintiff filed a
motion or took any other procedural step. The trial court would then have to hold
a hearing—separate from any hearing on the motion itself—and determine
whether the plaintiff was reasonably likely to prevail on the motion or other
procedural step. (§ 391.2.) On a negative finding, the court would then be
10
required to order the plaintiff to furnish security, presumably cumulative to any
ordered at earlier stages of the action. (§ 391.3.) If the plaintiff failed to provide
the security, the action would, according to section 391.4, be ―dismissed,‖ though
the negative ruling on a motion is ordinarily referred to as a ―denial‖ rather than a
―dismissal.‖
Under section 391.7 itself, defendants‘ construction of ―litigation‖ would
be unworkable. A vexatious litigant in Shalant‘s position, having filed the action
through counsel but then having lost representation, would be required to seek
permission of the presiding judge before filing any motion or other paper. The
presiding judge of the court would thus be placed in the position of overseeing
each procedural step of an action pending in another department and deciding in
each instance whether the particular motion, pleading, or paper had ―merit.‖
(§ 391.7, subd. (b).)5 If the clerk inadvertently filed any motion or other paper
from the plaintiff, a notice from any other party that the plaintiff was subject to a
prefiling order would automatically stay the ―litigation‖ (§ 391.7, subd. (c))—that
is, the particular motion filed or other procedural step taken—but the rest of the

5
At oral argument, defense counsel asserted the presiding judge would have
to grant permission only for the first filing by a newly unrepresented vexatious
litigant; counsel further argued the presiding judge would determine the merit or
lack thereof of the entire action, not the particular filing. These assertions,
however, are contrary to defendants‘ reading of the statutes, under which the
phrase ―new litigation‖ in section 391.7, subdivision (a) includes each motion or
other procedural step taken by a vexatious litigant in a pending lawsuit. An order
under section 391.7, subdivision (a) prohibits the filing of ―any‖ new litigation,
not merely the first new litigation, and under subdivision (b) of the section the
presiding judge must determine whether ―that litigation‖ has merit and is being
filed for purposes other than harassment or delay. The presiding judge, under
defendants‘ interpretation, would therefore have to assess the merits and purposes
of each new motion or other filing in an action pending in another department.
11


action would not necessarily be stayed at the same time. Pretrial and trial
proceedings would be constantly interrupted for trips to the presiding judge‘s
department; an orderly and efficient trial would be impossible. Again, the statute
provides that if permission is not granted, an inadvertently filed litigation is to be
―dismissed‖ (ibid.), indicating the drafters did not intend each motion, which
would ordinarily be granted or denied, but not ―dismissed,‖ to be considered a
separate ―litigation.‖6
Section 391.7, then, is not reasonably susceptible to a reading under which
a prefiling order would bar the vexatious litigant from filing motions or other
papers in propria persona even when the action (or special proceeding; see §§ 22,
23) was itself properly filed through counsel. Any ambiguity on this point,
moreover, would be dispelled by examination of the legislative history behind
section 391.7‘s enactment, which shows a clear focus on precluding vexatious
litigants from filing in propria persona unmeritorious new ―actions‖ or
―lawsuits.‖7 Nowhere in this history is there any suggestion the new section

6
Subdivision (d) of section 391.7 provides that in a proceeding under the
Family Code or Probate Code ― ‗litigation‘ ‖ does include ―any petition,
application, or motion other than a discovery motion . . . for any order.‖ This
provision would be unnecessary if, as defendants argue, ―litigation‖ throughout the
vexatious litigant statutes included every motion or other paper filed by the
plaintiff.
7
Senate Bill No. 2675 (1989–1990 Reg. Sess.), by which section 391.7 was
enacted (and the vexatious litigant statutes strengthened in other respects), was
proposed by the California Attorney General‘s Office, which, in a letter to the
chairman of the Senate Committee on the Judiciary in preparation for a committee
hearing, explained that the office ―spends substantial amounts of time defending
unmeritorious lawsuits brought by vexatious litigants.‖ (Deputy Atty. Gen.
Jeffrey J. Fuller, letter to Sen. Bill Lockyer re Sen. Bill No. 2675 (1989–1990 Reg.
Sess.) Apr. 11, 1990, p. 1, italics added.) The proposed law would address this
problem by, among other measures, ―[p]roviding for judicial review of subsequent
actions brought by a vexatious litigant prior to filing.‖ (Id. at p. 2, italics added.)

(footnote continued on next page)
12


would bar vexatious litigants from filing motions or papers in pending litigation.
The additional remedy provided by section 391.7 was, instead, ―directed at
precluding the initiation of a meritless lawsuit and the costs associated with
defending such litigation.‖ (Bravo v. Ismaj, supra, 99 Cal.App.4th at p. 222,
italics added.)
Defendants argue that interpreting section 391.7 according to its plain
language would allow a vexatious litigant to ―easily evade the statute simply by
finding a lawyer who is willing to put his or her name on the complaint and later
substitute out of the case.‖ However, we cannot assume, contrary to the evident
premise of section 391.7, that attorneys generally will fail to act as gatekeepers
against frivolous litigation. ―Attorneys are governed by prescribed rules of ethics
and professional conduct, and, as officers of the court, are subject to disbarment,
suspension, and other disciplinary sanctions not applicable to litigants in propria

(footnote continued from previous page)
The committee analysis for the ensuing hearing, in explaining the need for
legislation, relayed the Attorney General‘s concern with the resources spent
defending ―unmeritorious lawsuits brought by vexatious litigants‖ and his view
that the law should be strengthened to ―prevent the waste of public funds required
for the defense of frivolous suits.‖ (Sen. Com. on Judiciary, Analysis of Sen. Bill
No. 2675 (1989–1990 Reg. Sess.) Apr. 17, 1990, pp. 2-3, italics added.) A later
bill summary and a local cost estimate prepared by the Department of Finance
stated the bill would ―make it more difficult to file frivolous suits and actions‖ by,
among other things, ―prohibit[ing] court clerks from filing any suit by a vexatious
litigant unless the presiding judge issues an order permitting such filing.‖ (Dept.
of Finance, Analysis of Sen. Bill No. 2675 (1989–1990 Reg. Sess.) May 8, 1990,
p. 1, italics added; Dept. of Finance, Local Cost Estimate for Sen. Bill No. 2675
(1989–1990 Reg. Sess.) May 8, 1990, p. 1, italics added.) Finally, in urging the
Governor to sign the legislation, the bill‘s author explained it would ―provide for
judicial review of subsequent actions filed by persons who have been adjudged
vexatious litigants.‖ (Sen. Milton Marks, letter to Governor George Deukmejian
re Sen. Bill No. 2675 (1989–1990 Reg. Sess.) Sept. 11, 1990, ¶ 3, italics added.)
13


persona.‖ (Taliaferro v. Hoogs (1965) 236 Cal.App.2d 521, 527.) ―Since fewer
sanctions are available against a pro per litigant, the power to declare him
vexatious becomes an important tool for the courts to manage their dockets and
prevent frivolous claims. Attorneys, on the other hand, are bound by rules of
ethics and—perhaps just as importantly—rely on their reputation in the
community to sustain their careers. Attorneys therefore are much less likely to file
frivolous claims, event [sic: even] absent the threat of their clients being declared
vexatious litigants.‖ (Doran v. Vicorp Restaurants, Inc. (C.D.Cal. 2005) 407
F.Supp.2d 1115, 1118, fn. omitted.) One might add that the threat of malicious
prosecution liability for bringing an unmeritorious action or special proceeding
without probable cause, while it may do little to deter a vexatious litigant, is likely
to have more significance for the vexatious litigant‘s attorney.8
The Legislature‘s express distinction between litigation filed in propria
persona and that filed through an attorney, therefore, is not an absurd one that
could not have been intended. Even if a broader rule, barring vexatious litigants
from filing or maintaining new litigation in propria persona, would serve the
statute‘s purposes better by ending more frivolous litigation more quickly, we
have no warrant to ignore section 391.7‘s unambiguous language in favor of such
a rule. As the appellate court below remarked: ―We sympathize with the plight of
already overburdened trial courts that are forced to contend with the abusive

8
We express no opinion as to whether section 391.7 may be applied when
the record shows the vexatious litigant‘s attorney has, in filing the action, acted as
a ―mere puppet[]‖ of the litigant. (In re Shieh (1993) 17 Cal.App.4th 1154, 1167.)
The trial court made no such finding in dismissing Shalant‘s action, and
defendants, though they cite Shieh as supporting a broad interpretation of section
391.7, do not argue the dismissal should be affirmed on grounds the attorney who
filed this action was merely a puppet for Shalant.
14


conduct of vexatious litigants. But in their efforts to deal with the problem of
vexatious litigants, courts must observe the limits set by the applicable statutory
scheme. If those limits are too confining, then it is the function of the Legislature,
not the courts, to expand them.‖ As already noted, defendants here may avail
themselves of the remedy under sections 391.1 to 391.6, applicable to pending
actions, by seeking an order that Shalant post security to continue his prosecution
of this action.
DISPOSITION
The judgment of the Court of Appeal is affirmed.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
HILL, J.*

*
Presiding Justice of the Court of Appeal, Fifth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
15



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Shalant v. Girardi
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 183 Cal.App.4th 545
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S182629
Date Filed: June 23, 2011
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Teresa Sanchez-Gordon

__________________________________________________________________________________

Counsel:

Joseph L. Shalant, in pro. per.; Law Offices of Brian A. Yapko and Brian A. Yapko for Plaintiff and
Appellant and for Defendant and Appellant.

Girardi Keese, Shawn J. McCann; Niddrie, Fish & Buchanan, Law Offices of Martin N. Buchanan and
Martin N. Buchanan for Defendant and Respondent Thomas v. Girardi and for Plaintiff and Respondent.

Lewis Brisbois Bisgaard & Smith and Rebecca R. Weinreich for Defendant and Respondent National
Union Fire Insurance Company of Pittsburgh, PA.

Garrett & Tully, Ryan C. Squire and Jennifer R. Slater for Los Angeles Society for the Prevention of
Cruelty to Animals as Amicus Curiae on behalf of Defendants and Respondents.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Joseph L. Shalant
14924 Camarosa Dr.
Pacific Palisades, CA 90272
(213) 380-2020

Martin N. Buchanan
Law Offices of Martin N. Buchanan
600 B Street, Suite 1900
San Diego, CA 92101
(619) 238-2426


Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issue: If a vexatious litigant subject to a prefiling order files a lawsuit while represented by counsel, but counsel substitutes out or is otherwise relieved, may the litigant proceed in propria persona without first obtaining the approval of the presiding judge under Code of Civil Procedure section 391.7?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 06/23/201151 Cal. 4th 1164, 253 P.3d 266, 126 Cal. Rptr. 3d 98S182629Review - Civil Appealsubmitted/opinion due

SHALANT v. S.C. (NEELY) (S027840)
SHALANT v. S.C. (KINST) (S029541)
SHALANT ON DISCIPLINE (S040608)
ACCUSATION OF DURSO (S052553)
SHALANT v. S.C. (MID-WILSHIRE ASSOCIATES) (S053048)


Parties
1Shalant, Joseph L. (Plaintiff and Appellant)
14924 Camarosa Drive
Pacific Palisades, CA 90272

2Girardi, Thomas V. (Defendant and Respondent)
Represented by Martin Nebrida Buchanan
Law Offices of Martin N. Buchanan
600 "B" Street, Suite 1900
San Diego, CA

3Girardi, Thomas V. (Defendant and Respondent)
Represented by Thomas V. Girardi
Girardi & Keese
1126 Wilshire Boulevard
Los Angeles, CA

4Girardi, Thomas V. (Defendant and Respondent)
Represented by Rebecca R. Weinreich
Lewis Brisbois Bisgaad & Smith, LLP
221 N. Figueroa Street, Suite 1200
Los Angeles, CA

5National Union Fire Insurance Company of Pittsburgh, PA (Defendant and Respondent)
Represented by Martin Nebrida Buchanan
Law Offices of Martin N. Buchanan
600 "B" Street, Suite 1900
San Diego, CA

6Castro, Jose (Plaintiff and Respondent)
Represented by Martin Nebrida Buchanan
Law Offices of Martin N. Buchanan
600 "B" Street, Suite 1900
San Diego, CA

7Castro, Jose (Plaintiff and Respondent)
Represented by Shawn Joseph McCann
Girardi & Keese
1126 Wilshire Boulevard
Los Angeles, CA

8Los Angeles Society for the Prevention of Cruelty to Animals (Amicus curiae)
Represented by Ryan C. Squire
Garrett & Tully, P.C.
225 South Lake Avenue, Suite 1400
Pasadena, CA


Opinion Authors
OpinionJustice Kathryn M. Werdegar

Dockets
May 13 2010Petition for review filed
Defendant and Respondent: Girardi, Thomas V.Attorney: Thomas V. Girardi  
May 13 2010Record requested
 
May 13 20102nd petition for review filed
Plaintiff and Respondent: Castro, JoseAttorney: Martin Nebrida Buchanan   Consol. Case No. B214302 (Los Angeles Superior Court # BC 366214)
May 27 2010Received Court of Appeal record
  # B211932 - one doghouse
May 27 2010Answer to petition for review filed
Plaintiff and Appellant: Shalant, Joseph L.Pro Per   Answer to petition filed by Jose Castro.
Jun 29 2010Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including August 11, 2010, or the date upon which review is either granted or denied.
Jul 21 2010Petition for review granted
  Respondent Thomas V. Girardi's petition for review is granted. Respondent Jose Castro's petition for review is denied. George, C.J., was recused and did not participate. Votes: Corrigan, A.C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Jul 21 2010Letter sent to:
  all parties
Jul 28 2010Certification of interested entities or persons filed
  Joseph L. Shalant, appellant
Aug 12 2010Request for extension of time filed
  Respondent - Thomas V. Girard, et al., requesting extension until September 20, 2010 to file opening brief on the merits.
Sep 1 2010Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 20, 2010.
Sep 20 2010Opening brief on the merits filed
Defendant and Respondent: Girardi, Thomas V.Attorney: Martin Nebrida Buchanan Defendant and Respondent: National Union Fire Insurance Company of Pittsburgh, PAAttorney: Martin Nebrida Buchanan  
Oct 12 2010Note:
  left message for Joseph L. Shalant that answer brief on the merits is wrong color and a new set needs to be sent.
Oct 12 2010Answer brief on the merits filed
Plaintiff and Appellant: Shalant, Joseph L.Pro Per  
Oct 25 2010Reply brief filed (case fully briefed)
Defendant and Respondent: Girardi, Thomas V.Attorney: Martin Nebrida Buchanan Defendant and Respondent: National Union Fire Insurance Company of Pittsburgh, PAAttorney: Martin Nebrida Buchanan   8.25(b)
Oct 29 2010Notice of substitution of counsel
  Thomas V. Girardi hereby substitutes Law Offices of Martin N. Buchanan as counsel of record in place of Niddrie, Fish & Buchanan LLP, effective November 1, 2010.
Nov 29 2010Application to file amicus curiae brief filed
  Los Angeles Society For The Prevention of Cruelty To Animals. by Ryan C. Squire, counsel
Dec 7 2010Permission to file amicus curiae brief granted
  The application of Los Angeles Society For The Prevention Of Cruelty To Animals for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Dec 7 2010Amicus curiae brief filed
Amicus curiae: Los Angeles Society for the Prevention of Cruelty to AnimalsAttorney: Ryan C. Squire  
Apr 6 2011Case ordered on calendar
  to be argued Wednesday, May 4, 2011, at 1:30 p.m., in San Francisco
Apr 8 2011Justice pro tempore assigned
  Justice Brad Hill Fifth Appellate District
Apr 13 2011Filed:
  Letter from Brian A. Yapko: "This will confirm that my office no longer represents Joseph L. Shalant. I was substituted-out as attorney in October, 2010. Since that time, Mr. Shalant has been in propria persona. He will represent himself at oral argument on May 4, 2011."
Apr 22 2011Supplemental brief filed
Defendant and Respondent: Girardi, Thomas V.Attorney: Martin Nebrida Buchanan Defendant and Respondent: National Union Fire Insurance Company of Pittsburgh, PAAttorney: Martin Nebrida Buchanan Plaintiff and Respondent: Castro, JoseAttorney: Martin Nebrida Buchanan  
May 5 2011Cause argued and submitted
 
Jun 22 2011Notice of forthcoming opinion posted
  To be filed Thursday, June 23, 2011 at 10 a.m.

Briefs
Sep 20 2010Opening brief on the merits filed
Defendant and Respondent: Girardi, Thomas V.Attorney: Martin Nebrida Buchanan Defendant and Respondent: National Union Fire Insurance Company of Pittsburgh, PAAttorney: Martin Nebrida Buchanan  
Oct 12 2010Answer brief on the merits filed
Plaintiff and Appellant: Shalant, Joseph L.Pro Per  
Oct 25 2010Reply brief filed (case fully briefed)
Defendant and Respondent: Girardi, Thomas V.Attorney: Martin Nebrida Buchanan Defendant and Respondent: National Union Fire Insurance Company of Pittsburgh, PAAttorney: Martin Nebrida Buchanan  
Dec 7 2010Amicus curiae brief filed
Amicus curiae: Los Angeles Society for the Prevention of Cruelty to AnimalsAttorney: Ryan C. Squire  
Brief Downloads
application/pdf icon
Respondents-thomas-girardi-and-national-union-fire-insurance-company-of-pittsburgh-pa-petition-for-review.pdf (313667 bytes) - Respondents, Thomas V. Girardi and National Union Fire Insurance Company of Pittsburgh, PA, Petition for Review
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Respondent-jose-castro-petition-for-review.pdf (251518 bytes) - Respondent, Jose Castro, Petition for Review
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Appellants-answer-to-petition-for-review.pdf (80376 bytes) - Appellant's Answer to Petition for Review
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Respondents-thomas-insurance-opening-brief-merits.pdf (287411 bytes) - Respondents, Thomas V. Girardi and National Union Fire Insurance Company of Pittsburgh, PA, Opening Brief on the Merits
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Appellants-answer-brief-on-the-merits.pdf (135179 bytes) - Appellant's Answer Brief on the Merits
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Respondents-thomas-national-union-fire-insurance-reply-brief-merits.pdf (74890 bytes) - Respondents, Thomas V. Girardi and National Union Fire Insurance Company of Pittsburgh, PA, Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jul 4, 2011
Annotated by kyle niemi

FACTS

In an unrelated action in 2002, the adjudicating trial court entered an order declaring Shalant, the plaintiff and appellant in the present case, to be a vexations litigant under § 391 of the Code of Civil Procedure. The court then entered a prefiling order under § 391.7, prohibiting him from “filing any new litigation in propria persona in the courts of California without approval of the presiding judge of the court in which the action is filed.” In 2006, Shalant retained an attorney to file the present action against Thomas V. Girardi and National Union Fire Insurance Company. In mid-2008, however, Butler applied for and was granted permission to withdraw as counsel for Shalant, leaving Shalant to proceed in propria persona.

The defendants moved to dismiss Shalant’s complaint under § 391.7. The trial court set a deadline by which Shalant must retain new counsel, and after he failed to meet this deadline, the court granted the defendants’ motions to dismiss. Shalant appealed.

PROCEDURAL HISTORY

The superior court granted the defendants’ motions to dismiss Shalant’s complaint under § 391.7. Shalant brought the matter to the Court of Appeal, which reversed the judgment and directed the superior court to deny the motions to dismiss. Girardi and National Union Fire Insurance Company petitioned the Supreme Court for review. The Supreme Court granted the petition to decide whether dismissal was appropriate under § 391.7.

ISSUE

If a vexatious litigant subject to a prefiling order files a new action while represented by counsel, and that counsel later drops out, may he or she proceed in propria persona without the judge’s permission under § 391.7 of the Code of Civil Procedure?

HOLDING

A vexatious litigant may proceed in propria persona after the action has been filed and during its pendency. Section 391.7 prohibits unrepresented vexatious litigants from filing any new litigation without permission, not from proceeding with ongoing litigation. The present action was filed while Shalant was represented by counsel and is thus outside the scope of § 391.7. The judgment of the Court of Appeal was affirmed.

ANALYSIS

The Court distinguished between two situations in which California’s vexatious litigant statutes could come into play. One situation is when the litigation is pending and a defendant may move to have an order entered declaring the plaintiff to be a vexatious litigant. Once such an order is entered, if the plaintiff has no reasonable probability of prevailing the court may order that the plaintiff furnish a security. If the plaintiff fails to do so, the action will be dismissed under §§ 391.1-391.6. The second situation is when a plaintiff is already subject to a prefiling order as a vexatious litigant and he or she attempts to file a new litigation. In this situation, § 391.7 prohibits the litigant from filing without counsel unless the presiding judge has given the litigant permission to do so. The defendants in this case should have sought relief under § 391.1, seeking an order requiring Shalant to furnish a security before continuing in his action. If he then failed to post the security, his action would be subject to dismissal under § 391.4. Section 391.7 simply did not apply in this situation when the plaintiff had already properly filed the action through counsel.

In its opinion, the Court declined to follow Forrest v. Department of Corporations, the precedent that the trial court relied on in its decision. It held that “the Forrest court erred . . . in holding broadly that a prefiling order under section 391.7 ‘permit[s] dismissal at any point when a vexatious litigant proceeds without counsel or without the permission of the presiding judge.’” Instead, “[b]y its terms, the statute and orders made pursuant to it apply only to the vexatious litigant’s filing of new litigation.”

The Court rejected the defendants’ argument that “any new litigation” could refer to any single procedural step that is part of a larger action, barring a vexatious litigant from taking further steps representation by counsel or permission from the judge. If this definition of litigation were applied, the court stated, then the vexatious litigant statutes would take on “absurd, unworkable, or clearly unintended meanings.” Such a reading would result in mini-trials at each stage of the litigation where a judge would have to decide whether there was merit to a particular motion, paper, or proceeding and, if there was not sufficient merit, require dismissal of that step in the action. The court noted that this result would not even make syntactical sense, because motions are either granted or denied, not dismissed. The Court then turned to the legislative history of § 319.7, which “shows a clear focus on precluding vexatious litigants from filing in propria persona unmeritorious new ‘actions’ or ‘lawsuits’” – not against filing motions or papers in pending litigation.

Finally, the Court also rejected the defendants’ contention that its interpretation of § 319.7 would allow vexatious litigants to evade the statute by simply finding a lawyer who would simply sign his or her name to the complaint and later substitute out of the case. The Court reasoned that there was no evidence that attorneys would fail to act as gatekeepers, especially in light of the rules of ethics and professional conduct to which attorneys must adhere on penalty of disbarment, suspension, and other sanctions.

KEY RELATED AUTHORITY

Cal. Code Civ. Proc. § 391, et seq.

TAGS

Vexatious litigant, section 391, civil procedure, filing litigation, new litigation

Jul 1, 2011
Annotated by Daniel Brown

Facts
In a prior action unrelated to this, the superior court entered an order declaring Appellant Joseph Shalant, an attorney, to be a vexatious litigant. The court further entered a prefiling order against him under Cal. Code Civ. Proc. § 391.7. This prefiling order prohibits Appellant from filing any new litigation in propria persona in the courts of California without approval of the presiding judge of the court in which the action is filed. On December 22, 2006, Appellant, represented by Attorney L’Tanya M. Butler, filed an action against Respondents Thomas V. Girardi and others. That action gave rise to this appeal. Attorney L’Tanya M. Butler represented Appellant from filing the suit to May 2007, when Attorney James. T. Biesty substituted in for Butler as Appellant’s attorney. With the exception of one month when Appellant represented himself, Biesty represented Appellant in this action until March 2008, when Butler returned as the attorney of record. On June 26, 2008, however, Butler applied, over Appellant’s objection, for permission to withdraw counsel, citing an irremediable breakdown in the attorney/client relationship. The trial court granted Butler’s application on July 15, 2008. With Appellant now acting in propria persona, Respondents moved to dismiss the complaint against them under Cal. Code Civ. Proc. § 391.7, and set a hearing on the motions to dismiss for September 18. On that date, the court granted Respondents' motion, dismissing the action and finding that Appellant had violated Cal. Code Civ. Proc. § 391.7 and failed to rectify that violation. Following the court's judgment for Respondents, Appellant (represented by counsel) appealed.

Procedural History
The suit began in a California superior court. Appellant filed an action against Respondents and Respondents moved to dismiss at trial due to a violation of Cal. Code Civ. Proc. § 391.7. The trial court granted Respondents’ motion to dismiss. The Court of Appeal reversed the judgment and directed the superior court to deny Respondents' motion to dismiss. The California State Supreme Court granted Respondents’ petition for review, which raised only the question of dismissal under Cal. Code Civ. Proc. § 391.7.

Issue
Whether Cal. Code Civ. Proc. § 391.7 allows for dismissal of an action brought by a vexatious litigant who filed the action with representation yet later lost representation and pursued the action in propria persona.

Holding
Cal. Code Civ. Proc. § 391.7 does not give a California court authority to dismiss a case brought by a vexatious litigant who was represented by counsel at the time the action was filed.

Analysis
Vexatious litigant statutes exist to preserve judicial economy and protect defendants from meritless and abusive litigation. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 220-221.) There are two ways by which courts and nonvexatious litigants can manage vexatious litigants. The first way courts and nonvexatious litigants can manage vexatious litigants is under Cal. Code Civ. Proc. § 391.1-391.6. This first way is accomplished by motion from defendant during an action requesting that the court require plaintiff to furnish security on the ground that plaintiff is a vexatious litigant. The action is stayed pending determination of the motion. If the court finds plaintiff to be vexatious, the court must order plaintiff to furnish security subject to such time and amount as the court fixes. Plaintiff’s failure to furnish security is grounds for dismissal. The second way courts can manage vexatious litigants is as follows: once a person has been declared a vexatious litigant, the court, on its own motion or a party’s motion, may enter a “prefiling order,” prohibiting a vexatious litigant from filing any new litigation in propria persona without first obtaining permission from the presiding judge. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216.) This second way of dealing with vexatious litigants operates differently from the first. Under the first way (i.e. under Cal. Code Civ. Proc. § 391.1-391.6) the litigant may proceed with the case in propria persona without showing a reasonable probability of prevailing so long as the litigant furnishes security. Under the second way, (i.e. under Cal. Code Civ. Proc. § 391.7), the litigant is barred from filing the action in propria persona if success is considered improbable. Under Cal. Code Civ. Proc. § 391.7 the presiding judge shall permit the filing of the litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay, and the presiding judge may further condition the filing of the litigation upon the furnishing of security. Thus there two ways to remedy vexatious litigation: 1) in pending litigation, defendant may have a plaintiff acting in propria persona declared a vexatious litigant and, if plaintiff has no reasonable probability of prevailing, ordered to furnish security, and 2) a court may prevent a vexatious plaintiff from filing any new action in propria persona by issuing a prefiling order either on the court’s own motion or on motion of defendant. In the first case, the failure to furnish security will dismiss the action. In the second case, the prefiling order bars plaintiff from even commencing the action. Respondents here pursued the wrong remedy for dealing with Appellant. Appellant was represented by counsel at the filing of the action in controversy, and the action thus could not have been dismissed under § 391.7, whose language provides for dismissal only in actions that were filed in propria persona. Respondents’ and the trial court’s conclusion to the contrary relies on Forrest v. State (2007)150 Cal.App.4th 183 (Forrest) (holding that the requirements of a prefiling order under Cal. Code Civ. Proc. § 391.7 remains in effect throughout the life of a lawsuit and permits dismissal at any point when a vexatious litigant proceeds without counsel or without the permission of a presiding judge.) That reliance is in error, and the Court here disapproves of Forrest to the extent it held that § 391.7 applies to acts other than the filing of new litigation in propria persona. Indeed the prefiling order does not prohibit continuing to prosecute or maintaining an action in propria persona as long as the action was not filed in propria persona. The Court here does not decide whether, or under what circumstances, the filing of an amended complaint constitutes the filing of new litigation within the meaning of Cal. Code Civ. Proc. § 391.7.

Tags
abuse, abusive litigation, civil procedure, dismiss, dismissal, furnish security, harrasment, harrass, in propria persona, permission, persona, prefile, prefile order, prefiling, prefiling order, propria, section 391, security, vex, vexatious, vexatious litigant