6 Cal.App.4th 54, A057347, In re Whitaker

Docket Nº:A057347
Citation:6 Cal.App.4th 54, 8 Cal.Rptr.2d 249
Opinion Judge:[9] The opinion of the court was delivered by: Moore, J.
Party Name:In re Whitaker
Attorney:[7] David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant. [8] Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Charles C. Ragland and Garry Haehnle, Deputy Attorneys...
Case Date:May 06, 1992
Court:California Court of Appeals

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6 Cal.App.4th 54

8 Cal.Rptr.2d 249

In re Finding of FRED A. WHITAKER as a Vexatious Litigant.


California Court of Appeal, First District, Fourth Division

May 6, 1992

[Opinion certified for partial publication.[*]]

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Fred A. Whitaker, in pro. per.



Today, we take one small step to eliminate an obvious waste of judicial resources. We hold that Fred A. Whitaker comes within the statutory definitions of a vexatious litigant. (Code Civ. Proc., § 391, subd. (b); statutory references hereafter are to this code.) We further hold that Whitaker, not having been deterred by numerous determinations to the same effect by the Alameda Superior Court, shall henceforth be required to obtain the permission of the presiding judge or justice for any court of this state in which he proposes to commence any litigation.

This matter arose when we began work on Whitaker's latest appeal (Whitaker v. Department of Social Services of Alameda County, A055479). That action ended in the trial court with a dismissal after Whitaker failed to furnish security as required by an order declaring him a vexatious litigant. Our attention was first drawn by the fact that the primary emphasis of Whitaker's briefs was a challenge to the constitutionality of the vexatious litigant statutes, an argument identical to one rejected by this court in an unrelated appeal only last year. (Whitaker v. Bay Area Rapid Transit District (Apr. 23, 1991) A049779 [nonpub. opn.].) We also noted that the respondent on Whitaker's latest appeal specifically requested issuance of a so-called "prefiling order" authorized by section 391.7, and first used by an appellate court in In re Luckett (1991) 232 Cal.App.3d 107 [283 Cal.Rptr. 312]. Following the procedure pioneered by Division Three of the Fourth District in Luckett, we issued an order to Whitaker to show cause why the relief requested by respondent should not be granted. The matter was set for a hearing, at which time Whitaker appeared and submitted arguments.

One of the statutory definitions of a vexatious litigant is "a person who ... [i]n the immediately preceding seven-year period has commenced,

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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...

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