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Pro Per’s Out-of-State Cross-Complaint Counts for Purpose of Vexatious-Litigant Statute—C.A.
By a MetNews Staff Writer
Div. Six of the Court of Appeal for this district yesterday filed an opinion saying that a pro per’s filing of an out-of-state cross-complaint counts as one of the five failed actions required for branding a person a vexatious litigant, with the justices opting to order the decision published although it states nothing new.
Justice Kenneth Yegan authored the opinion reversing an order by San Luis Obispo Superior Court Judge Linda D. Hurst. She denied a motion to declare Bernd Schaefers a vexatious litigant and to bar him, pursuant to Code of Civil Procedure §391.7(a), “from filing any new litigation in propria persona in the California courts without first obtaining leave of the presiding judge of the court in which the litigation is proposed to be filed.”
Yegan wrote:
“We hold that, for purposes of the vexatious litigant statute, a defendant who files a cross-complaint has commenced a separate, distinct, and independent cause of action. Thus, respondent’s cross-complaint in a Kansas action counts as one of the ‘five litigations’ required for a vexatious litigant finding under Code of Civil Procedure section 391, subdivision (b)(1). The statute targets a person. It does not matter where the litigation was filed.”
Hurst ruled that filing a cross-complaint (in Kansas termed a counter-claim) does not qualify as one of the “five litigations…that have been…finally determined adversely to the person,” as required by §391(b)(1). Yegan pointed out that the California Supreme Court held in 1974 that “a cross-pleading creates an action distinct and separate from an initial pleading.”
Schaefers contended that litigation in Kansas was not relevant. Yegan noted that §391(a) says:
“ ‘Litigation’ means any civil action or proceeding, commenced, maintained or pending in any state or federal court.”
The case is Blizzard Energy v. Schaefers, 2022 S.O.S. 5835.
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