Shalant v. Girardi

• Decision Date: 23 June 2011
• Docket Number: No. S182629.,S182629.
• Citation: 51 Cal.4th 1164,253 P.3d 266,126 Cal.Rptr.3d 98
• Court: California Supreme Court
• Parties: Joseph L. SHALANT, Plaintiff and Appellant,v.Thomas V. GIRARDI et al., Defendants and Respondents.Jose Castro, Plaintiff and Respondent,v.Joseph L. Shalant, Defendant and Appellant.

51 Cal.4th 1164

253 P.3d 266

126 Cal.Rptr.3d 98

11 Cal. Daily Op. Serv. 7812

2011 Daily Journal D.A.R. 9325

Joseph L. SHALANT, Plaintiff and Appellant,

v.Thomas

v. GIRARDI et al., Defendants and Respondents.Jose Castro, Plaintiff and Respondent,

v.Joseph L. Shalant, Defendant and Appellant.

No. S182629.

Supreme Court of California

June 23, 2011.

OPINION TEXT STARTS HERE Joseph L. Shalant, in pro. per.; Law Offices of Brian A. Yapko and Brian A. Yapko, Los Angeles, for Plaintiff and Appellant and for Defendant and Appellant.Girardi Keese, Shawn J. McCann, Los Angeles; 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, Los Angeles, for Defendant and Respondent National Union Fire Insurance Company of Pittsburgh, PA.Garrett & Tully, Pasadena, 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.WERDEGAR, J.

[253 P.3d 268 , 51 Cal.4th 1168]

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 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 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.

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, 120 Cal.Rptr.2d 879.) 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 ‘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, 120 Cal.Rptr.2d 879.)

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, 120 Cal.Rptr.2d 879.)

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 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, 73 Cal.Rptr.2d 288, 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...