Luckett v. Panos

• Citation: 73 Cal.Rptr.3d 745,161 Cal.App.4th 77
• Decision Date: 24 March 2008
• Docket Number: No. G038430.,G038430.
• Court: California Court of Appeals
• Parties: John LUCKETT, Plaintiff and Appellant, v. Wilma A. PANOS, as Executrix, etc., Defendant and Respondent.

73 Cal.Rptr.3d 745

161 Cal.App.4th 77

John LUCKETT, Plaintiff and Appellant, v. Wilma A. PANOS, as Executrix, etc., Defendant and Respondent.

No. G038430.

Court of Appeal, Fourth District, Division 3.

March 24, 2008.

John Luckett, in pro. per., for Plaintiff and Appellant.

Hollins & Levy, Byron S. Hollins and Laura M. Levy, Calabasas, for Defendant and Respondent.

SILLS, P.J.

Our opinion today results in a partial win for appellant John Luckett. As we explain below, courts do indeed have the statutory authority to lift a prefiling order entered against an individual adjudicated to be a vexatious litigant. And, while we affirm the trial court's order declining to lift a prefiling order against John Luckett this time, we also provide a roadmap as to how Luckett, or any other a person already adjudicated to be a vexatious litigant, can succeed in having that determination lifted.

I. THE ISSUE OF THE "PERPETUAL" VEXATIOUS LITIGANT

Two cases have previously touched on (though not directly tackled) the general issue of the permanency of a vexatious litigant determination (see Code Civ. Proc., § 391, subd. (b)(4)¹), a determination which can entail a "prefiling order" requiring a vexatious litigant to obtain permission before he or she may file any further litigation (see § 391.7, subd. (a)). The two cases are Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 61 Cal.Rptr.2d 694 and PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 5 Cal.Rptr.3d 532.

Wolfgram is a sustained examination of the general operation of the vexatious litigant statutes in light of the right to petition for redress of grievance under the state and federal Constitutions. The case squarely held that the operation of California's vexatious litigant statutes do not offend the right to petition—basically because a vexatious litigant still retains the right to bring lawsuits even after a vexatious litigant determination. Adopting Professor Tribe's analogy of the vexatious litigant statutes as a kind of license or permit system to manage "`competing use of public facilities,'" the Wolfgram court explained that the vexatious litigant statutes are narrowly drawn and reasonable in promoting the conservation of public judicial resources. (See Wolfgram, supra, 53 Cal.App.4th at p. 60, 61 Cal.Rptr.2d 694.) Being narrowly drawn, California's vexatious litigant statutes allow a vexatious litigant to continue to file lawsuits. They simply provide that the litigant may be required to post a bond in cases where "there is not a reasonable probability" that the vexatious litigant will prevail. (Id. at pp. 48-9, 61 Cal.Rptr.2d 694.) Given the reasonable-probability-of-not-prevailing standard, the bond requirement is not even as onerous as, say, a person who had been determined by the National Park Service to be a chronic litterer being required to post a deposit before being allowed to check in to a national park. (If the parallel were exact, the park service would also have to make a showing that there was "no reasonable probability" that our chronic litterer would leave the campsite reasonably tidy.) In perhaps the opinion's most memorable passage, the Wolfgram court stated that "When a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter." (Id. at p. 60, 61 Cal.Rptr.2d 694.)

As noted, the issue of possibly rescinding a vexatious litigant determination was only touched on, but not squarely addressed, in Wolfgram. The vexatious litigant there, apparently as part of a shotgun blast of constitutional contentions, asserted that vexatious litigant status was a "form of `attainder'" in that the vexatious litigant status supposedly "`deprived'" him of "`his civil rights in perpetuum.'" (Wolfgram, supra, 53 Cal.App.4th at pp. 61-62, fn. 11, 61 Cal.Rptr.2d 694.) But that assertion was not developed in a proper heading or with any analysis, so the court considered the point waived. (Ibid.)

On the other hand, there is nothing in the Wolfgram analysis that suggests any constitutional problem with a vexatious litigant determination being permanent. If the vexatious litigant is still being afforded his or her right to petition in the immediate aftermath of a vexatious litigant determination and imposition of a prefiling order, he or she necessarily will retain those same constitutional rights for the indefinite future thereafter. The vexatious litigant status simply subjects the person in that category to the possibility of a reasonable restriction on his or her right to sue in propria persona, namely the possibility of a bond requirement.

PBA, on the other hand, arose out of the specific context of one judge entering an order rescinding a previous judge's vexatious litigant determination, so the issue was more squarely presented. The PBA court appears to have read Wolfgram for the proposition that a vexatious litigant determination may indeed be, constitutionally permanent (a natural, though only implicit, reading of Wolfgram). But the PBA court clearly found that proposition "troubling." (PBA, supra, 112 Cal. App.4th at pp. 975-976, 5 Cal.Rptr.3d 532.) The PBA court said: "Although section 391.7 does not absolutely exclude the `pro per' litigant from the courts, we believe fundamental fairness requires the `vexatious litigant' brand be erasable in appropriate circumstances." (Id. at p. 976, 5 Cal.Rptr.3d 532, italics in original.) The PBA court cited no authority for its "belief."

Strictly speaking, though, it would be an incorrect reading of PBA to say that the case stands for the blanket proposition that a vexatious litigant determination is, in that court's word, "erasable in appropriate circumstances." First, in the very next paragraph after the "fundamental fairness" sentence, the court recharacterized what it had just said was a "requirement" into a mere conditional possibility, with a sentence that cast doubt on its "fundamental fairness" declaration. (See PBA supra, 112 Cal.App.4th at p. 976, 5 Cal.Rptr.3d 532 ["even if it is theoretically possible to remove the brand of vexatious litigant"].) In that same vein, within three paragraphs of the fundamental fairness statement, the PBA court devalued what it had said was a requirement of erasability to a mere assumption of a possibility. (See ibid. ["Assuming Judge Gale had the power to reverse Judge Morgan's order declaring Kennedy to be a vexatious litigant, he would at least have had to find a change in facts or circumstances showing the finding was no longer appropriate."].)

In any event, building on the assumption that a vexatious litigant "brand" could be erased, the PBA court analogized the vexatious litigant statutes to an injunction under section 533. That analogy logically required the vexatious litigant to make a showing of "a change in facts indicating a mending of his ways or conduct to support a reversal of the original determination." (PBA supra, 112 Cal.App.4th at p. 976, 5 Cal.Rptr.3d 532.) In the case before the PBA court, however, the latter judge's rescinding order was not based on anything that "amounted to a change in facts or circumstances sufficient to reverse the vexatious litigant order." (Id. at p. 977, 5 Cal.Rptr.3d 532.)

In light of the court's subsequent hedging of its fundamental fairness language, the rule to be properly derived from PBA is a conditional one: While a vexatious litigant determination may, or may not, be erasable, if it is erasable, erasure requires substantial evidence that the vexatious litigant has mended "his ways or conduct." (See PBA supra, 112 Cal.App.4th at p. 976, 5 Cal.Rptr.3d 532.)

Which brings us to the specifics of the case at hand. This appeal has its origins, ironically enough, in a vexatious litigant's own reading of PBA which prompted a trial court motion on his part to rescind a prior vexatious litigant determination. The forum he selected for his motion was this case against Wilma Panos, as executor of the estate of a deceased attorney who once represented the vexatious litigant.² The trial court denied the motion, and this appeal is from the order of denial.

It falls our lot to complete the arc that PBA began—at least for the first time in a published opinion.³

First, we note that the vexatious litigant statutes have a real world effect in only two possible ways: Either the vexatious litigant is required to post security in litigation already ongoing and will lose if he or she doesn't (§§ 391.1-391.6), or is required to obtain permission of a presiding justice of the court where new litigation is to be filed (§ 391.7), or both.

The first way—a requirement of posting security—is wholly dependent on some affirmative action taken by the defendant. The defendant must make a motion to have the court require the plaintiff to post security. (§ 391.1.) If the defendant takes no action, any prior determination that a person is a vexatious litigant is nothing more than a tree falling in a forest with no one around to hear the crash.

The second way a vexatious litigant determination may actually have a real world impact—the requirement of a prefiling order—is different. It can be initiated by the court on its own, or by a party. (§ 391.7, subd. (a).) Thus a court may, even upon its own motion, enter a "prefiling order" requiring a person to first obtain permission of the relevant presiding justice before filing any litigation in that presiding justice's court, and if it does so, disobedience to that order by the person may be punished by contempt. (§ 391.7, subd. (a).) Further, the Judicial Council is charged with maintaining a list of persons against whom prefiling orders have been made. (§ 391.7, sub.(e).)

We should note here that there is nothing in the vexatious litigant statutes which requires the Judicial Council to maintain a list of persons who were, in the process of the adjudication of a defendant's motion to require security, adjudged to be vexatious litigants. (Cf. §§ 391-391.6 with §...