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Commission on Judicial Performance Attorney Is Declared ‘Vexatious Litigant’
Opinion Says Staff Lawyer for Ethics Body Has Engaged in Persistent Pattern of Commencing Unmeritorious ‘Litigations’ Before C.A. in Divorce Proceeding
By Kimber Cooley, associate editor
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ELENA KOUVABINA attorney |
Div. Three of the First District Court of Appeal has declared that a staff attorney with the Commission on Judicial Performance is a “vexatious litigant” based on her having maintained nine unsuccessful appeals and writ petitions in the last five years while representing herself in divorce proceedings, barring the lawyer from filing any new litigation on her own behalf in any California court without obtaining permission from the presiding jurist.
Rejecting her assertions that the filings were the result of the trial judge’s bifurcation decisions and that she was forced to represent herself “against her will” due to the insufficiency of attorney fees awards, the court said the lawyer, Elena Kouvabina, qualifies for the designation under Code of Civil Procedure §391.
That section provides that a “vexatious litigant” is one who “[i]n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations…that have been…finally determined adversely to the person.” The statute defines “litigation” as “any civil action or proceeding, commenced, maintained or pending in any state or federal court.”
The panel on Sept. 11 ordered Kouvabina to show cause why she should not be declared a vexatious litigant and a hearing on the matter was held Oct. 8.
Justice Victor Rodríguez authored Thursday’s opinion, saying:
“Over the last five years, attorney Elena Kouvabina has—while self-represented—’commenced, prosecuted, or maintained’ nine litigations that have been ‘finally determined adversely to [her].’…On our own motion, we conclude she is a vexatious litigant and impose a prefiling order prohibiting her from filing new litigation while self-represented in the courts of this state without first obtaining permission from the presiding judge or justice where the litigation is proposed to be filed.”
Acting Presiding Justice Carin T. Fujisaki and Justice Ioana Petrou joined in the opinion.
Unsuccessful Petitions
Kouvabina’s four unsuccessful writ petitions concerned efforts to disqualify San Mateo Superior Court Judges Sean Dabel and Chinhayi Cadet from proceedings relating to the dissolution of her marriage to Jacob Veltman, who is also an attorney. All three of the filings were summarily denied between July 2021 and May 2024.
She also initiated five appeals relating to orders denying her requests for modifications to spousal support and custody decisions, as well as a decree awarding her $31,694.81 in needs-based attorney fees, as well as other matters. Div. Three affirmed the trial court’s decision in all five instances; two separate appeals remain pending before the court.
Kouvabina and Veltman were married in 2010, had a daughter in 2012, and separated in 2017. Kouvabina filed a petition for dissolution in 2017.
Rodríguez wrote:’
“Given her persistent pattern of commencing unmeritorious litigations in this court, we issued an order to show cause (OSC) why Kouvabina should not be declared a vexatious litigant pursuant to section 391 and why we should not impose a prefiling order pursuant to section 391.7(a).”
The court declared:
“Elena Kouvabina is hereby declared a vexatious litigant….Henceforth, she may not file any new litigation in the courts of this state without first obtaining leave of the presiding judge or justice of the court where the litigation is proposed to be filed….Disobedience of this order may be punished as a contempt of court….The clerk of this court must provide a copy of this opinion and order to the Judicial Council…, and to the presiding judge and clerk of the Superior Court for the County of San Mateo.”
Divorce Matters
Rodríguez said:
“[I]t is not unusual in a dissolution to see issues addressed over time and in different orders, many of which can be challenged via writ or appeal….But that has not prevented courts from designating a litigant vexatious due to numerous appeals and writs arising out of the same dissolution….Section 391(b)(1) ‘requires only that five qualifying litigations were finally determined adversely to her within a specific time period. That standard is satisfied here.’…We needn’t find ‘she engaged in tactics that were frivolous or intended to cause unnecessary delay’ to conclude she meets the definition of a vexatious litigant.”
Responding to Kouvabina’s assertion that she is representing herself “against her will due to the insufficiency of the pendente award of attorney’s fees and such fees on appeal,” the jurist wrote:
“To the extent she is suggesting this means we should not treat her as self-represented for purposes of section 391(b)(1), this argument is forfeited for failure to cite any legal authority or offer legal argument….Moreover, the trial court’s orders concerning attorney fees were affirmed on appeal….Whatever the reason, Kouvabina was self-represented when she commenced, prosecuted, or maintained the litigations here.”
Qualify as Litigation
He also rejected her assertion that appeals do not qualify as “litigation,” saying that “California courts have consistently held to the contrary” and was unpersuaded by her argument that the matters are not the kind of filings covered by §391 because they “arose from [her] efforts to defend herself against Veltman’s affirmative claims.”
Rodríguez opined:
“Even if a defendant’s appeal does not constitute ‘litigation’ within the meaning of section 391(b)(1), we conclude Kouvabina’s appeals and writs—under the facts presented here—arose out of proceedings as to which she was the ‘plaintiff.’ ”
He added:
“Kouvabina observes that ‘actions for dissolution of marriage do not neatly fit within the category of “litigation” for purposes of the vexatious litigant statute’ because ‘a party has no alternative but to initiate a court action in order to obtain a dissolution of marriage.’…The Legislature could have exempted family law matters…but it did not. To the contrary, Family Code section 210 explicitly provides that the vexatious litigant statutes apply to family law proceedings. In sum, there is no reason to think the vexatious litigant statutes apply to family law matters with lesser or different force.”
The case is In re the Marriage of Kouvabina and Veltman, 2025 S.O.S. 2902.
Kouvabina Comments
Kouvabina said of the decision:
“As an attorney in good standing with 20-years of experience, including as a staff attorney at the United States Court of Appeals for the Ninth Circuit, I am disappointed and deeply concerned by the court’s opinion declaring me a vexatious litigant based solely on the number of statutory appeals I filed in a single marital dissolution proceeding under Code of Civil Procedure section 391, subdivision (b)(1) (i)—appeals expressly authorized by statute and forfeited if not pursued —without any consideration of whether those appeals lacked merit within the meaning of section 391, subdivision (b)(3) (requiring unmeritorious or frivolous filings). Each of my appeals raised meritorious issues critical to me and my child and was filed after consultation with counsel, who approved the grounds for appeal. None of the Court of Appeal’s underlying opinions suggested that my appeals lacked substantive merit.”
She continued:
“By designating me a vexatious litigant merely because of the number of statutory appeals—some of which arose from bifurcation of trial issues initiated by the trial court itself in as many as four interrelated parts—the Court of Appeal erred as a matter of law. It improperly treated such statutory appeals as ‘litigations’ ‘commenced’ under section 391(b)(1) and counted them toward the ‘five litigations’ threshold. Nothing in section 391(b)(1), aimed at curbing the undesirable conduct by unrepresented litigants, suggests that appeals are included in the term ‘litigation,’ and this term is not normally understood to refer to appeals.”
The lawyer noted that the California Supreme Court “has not yet addressed this specific issue.” She added:
“I am also concerned that this decision will have a chilling effect on family law litigants—most of whom are self-represented—by substantially curtailing their access to appellate remedies from orders of child support, temporary spousal support, and custody and visitation orders issued within one divorce action. These are routine family law matters that remain modifiable upon a change of circumstances, and the family court retains jurisdiction over such matters until the child reaches majority. The Legislature expressly provided for statutory appeals from such orders in recognition of their profound impact on families and children. Nothing in either the Family Code or the Code of Civil Procedure suggests that the exercise of statutory appellate rights from renewable orders could be restricted to five unsuccessful appeals through the child’s majority. It should be emphasized that even represented parties face a notoriously high bar for success on appeal.”
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