Metropolitan News-Enterprise


Friday, October 14, 2022


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Unsuccessful Appeals Count in Determining Whether Person Is Vexatious Litigant—C.A.


By a MetNews Staff Writer


A judge did not “double count” instances of unsuccessful litigation by a woman by including both the Superior Court lawsuits and the appeals in determining that she is a vexatious litigant, the Third District Court of Appeal declared yesterday.

Justice Stacy E. Boulware Eurie wrote the opinion, which was not certified for publication.

A “vexatious litigant,” who must obtain court permission before filing new actions, is defined by Code of Civil Procedure § 391(b) as including a person who “[i]n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been…finally determined adversely to the person.”

Kimberly R. Olson was proclaimed by Siskiyou Superior Court Judge Karen Dixon on Oct. 23, 2020, to come under that definition. The Hornbrook Community Services District had shown that Olson had filed three unsuccessful lawsuits and four ill-fated appeals.

Error Claimed

Olson insists that Dixon erred because two of the appeals were in the same cases as those counted as lawsuits and one case she filed ended in a settlement, not a decision that was adverse to her.

Boulware Eurie wrote:

“Section 391, subdivision (a) broadly defines “litigation” to be a civil action or proceeding; an appeal is a proceeding.”

Effect on Courts

She commented:

“Appealing a loss at the trial court compounds the burden on the opposing party and the courts. After successfully defending a litigation at the trial court, the opposing party now must defend another litigation at the appellate court. And not counting appeals as adversely determined litigations could potentially allow a litigant to subvert the statute’s purpose by filing numerous frivolous appeals without the risk of him or her being declared a vexatious litigant.

“Applied here, appellant losing at the trial court level and then losing at the appellate level counts as two losses for purposes of finding her a vexatious litigant. The trial court therefore properly counted the two cases appellant now challenges.”

The justice did not address Olson’s protest that a settled case should not be counted. She said that by including the two appeals, “there were at least six” instances of unsuccessful litigation and only five were needed to support the finding.

The case is Olson v. Hornbrook Community Services District, C092957.


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