2.1. Practitioners' Notes on Invalidating the California Vexatious Litigant Statute

Only one federal case has considered California's vexatious litigant statute, Wolfe v. George (9th Cir. 2007) 486 F.3d 1120, a fatally flawed decision upholding the statute. The Wolfe court's error is demonstrable because it depends on a construction of California law at odds with the California Supreme Court. The 9th Circuit held:

When no bond is required, the California prefiling order does little more than require sua sponte review of a vexatious litigant's complaint to see whether it states a claim before imposing the burden of litigation on a defendant. The defendant could move to dismiss for the same reason, so the statute is not a substantial or irrational bar to access. (Id., at pp. 1126-7.)

The appellate panel didn't absorb enough California law to call the state's pre-answer procedure for a complaint's facial dismissal a demurrer. The panel's startling ignorance of state law, whose construction by California controls, distorted the panel's view of the scope the vexatious litigant statute confers on the summary procedure it authorizes. This misinterpretation of California law trivializes the vexatious-litigant statute's harm.The statute provides for an impromptu and sua sponte summary judgment, as was always clear and a California Supreme Court decision, a month before, had established:

[M]ay the trial court weigh the evidence presented on the motion, or must it assume the truth of plaintiffs alleged facts and determine only whether the claim is foreclosed as a matter of law? ¶ We conclude the trial court is permitted to weigh the evidence ... (Moran v. Murtaugh Miller Meyer & Nelson (2007) 40 Cal.4th 780.)

Litigants challenging the California vexatious litigant statute have invariably erred on basic appellate tactics. Usually they fail to isolate the statute's legal vulnerabilities, as opposed to the most morally salient features, Wolfgram's lead issue a notable exception. Wolfgram, nonetheless, mistakenly included every conceived issue. (See Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43.)

Some lines of attack on the statute promise success. Noting much frivolous litigation is not vexatious, the first theory is based on the argument that imposing penalties for merely frivolous filing, without proving wrongful motivation, fails to allow breathing space for the First Amendment. (Be&K Constr. Co. v. NLRB (2002) 536 U.S. 516, 531.) The breathing-space argument depends, however, on the court's employing the strict scrutiny that a measure limiting access to the courts deserves. Another promising theory argues that the statute's method of measuring vexatiousness fails a rational-basis test. If a pro se plaintiff wins five cases in seven years, the single truly frivolous action initiated might attach the vexatious-litigant label. But winning five cases proves the litigation was meritorious, hence as a matter of law not vexatious or even frivolous, the decision procedure's irrationality amplified if the litigant filed only five lawsuits. (See De Long v. Hennessey (9th Cir. 1990) 912 F.2d 1144, 1148 [district court must address the content of the filings as indicia of frivolousness].)