Thursday, March 26, 2026
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Court of Appeal:
Unsuccessful Petition for High Court Review Is ‘Litigation’
Justices Say Challenge to Court of Appeal Opinion Counts as Loss for Vexatious-Litigant Statute Purposes
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday that in determining whether someone, acting in pro per, has lost five “litigations” in the past seven years—qualifying that person for adjudication as a “vexatious litigant”—a denial of a petition for review in the California Supreme Court is to be counted.
Justice Natalie P. Stone authored the opinion. Although the issue appeared to be one of first impression, the opinion was not certified for publication.
It affirms an order by then-Los Angeles Superior Court Judge Mitchell L. Beckloff (now an arbitrator/ mediator) determining Charles Janeke to be a vexatious litigant, as defined by Civil Procedure §391(b)(1).
That section applies to 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 (i) finally determined adversely to the person….”
An unrepresented vexatious litigant may be required to Janke furnish security as a condition of continuing present litigation and is subject to imposition of a prefiling order barring any future litigation without obtain court permission.
2010 Decision
It is established that an appeal is an instance of litigation in addition to the trial court case. Decided in 2010 by Div. Three of the Fourth District Court of Appeal, in Fink v. Shemtov, was that an unsuccessful attempt to obtain a writ in the Court of Appeal counts as failed litigation, under §391(b)(1) only if a writ petition is the exclusive means of gaining relief, and not where an appeal lies.
Stone noted that “Fink does not concern the denial of a petition for review by the Supreme Court” but said that “its analysis is helpful in determining whether a denied petition for review counts as a qualifying litigation.”
The rationale for the decision in Fink was that the availability of an appeal might have been the reason for the denial of a writ, thus not reflecting on the merits.
“[T]he Fink analysis supports the conclusion that the California Supreme Court’s denial of a petition for review may count as a qualifying litigation.” Stone wrote. “Like a petition for extraordinary writ relief filed in the Court of Appeal, a petition for review filed in the Supreme Court is a ‘civil action or proceeding...pending in any state...court,’ and as such, it falls within the definition of a ‘litigation’ under section 391, subdivision (a).”
Exclusive Means
Echoing language from Fink, she said that seeking review is the “exclusive means of obtaining appellate review” of a final Court of Appeal opinion, elaborating:
“[T]here will be no subsequent opportunity for review by the Supreme Court, and the Supreme Court exercises its appellate jurisdiction when it considers a petition for review, determines the petition does not meet the narrow bases for review, and issues a denial. Further, the Supreme Court’s denial of such a petition—absent a timely writ of certiorari filed in the United States Supreme Court—is final….Finally, a denial is not a “win” for the party requesting review, and thus it is an adverse determination within the meaning of section 391, subdivision (b)(1).”
Stone added:
“Counting a denial of a petition for review as a qualifying litigation is also consistent with the underlying purpose of the vexatious litigant statutes. The filing of a petition for review that is ultimately denied by the Supreme Court still demands judicial resources and delays justice for others.”
Also decided was that an appeal by Janeke that resulted in a judgment against him being trimmed by $10,000 was not decided “adversely” to him.
The case is Janeke v. L.A. Dept. of Building and Safety, B338803.
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