APPEAL from a judgment of the Superior Court of Fresno County. Donald S. Black, Judge. (Super. Ct. No. 08CECG03585)
The opinion of the court was delivered by: Detjen, J.
CERTIFIED FOR PUBLICATION
This is an appeal from an order dismissing an action pursuant to the vexatious litigant statutes. We hold that a prefiling order, issued pursuant to Code of Civil Procedure section 391.7, subdivision (a), does not require a vexatious litigant who is represented by counsel to obtain permission from the presiding judge to present litigation for filing. Accordingly, we reverse.
Facts and Procedural History
In 2008 appellant, Joe Flores, was declared to be a vexatious litigant and subject to a prefiling order pursuant to Code of Civil Procedure section 391.7, subdivision (a). (All further section references are to the Code of Civil Procedure.)
On October 14, 2008, appellant and two other plaintiffs filed suit in Fresno County Superior Court. The complaint listed appellant's counsel as attorney Tomas Nunez.
While other defendants in the action filed demurrers to the complaint, defendants and respondents, C. Russell Georgeson, et al.,*fn1 filed (in addition to a motion to strike pursuant to the "anti-SLAPP" law, § 425.16) a notice to the court and all parties that the clerk had "mistakenly filed the instant litigation without requiring vexatious litigant Plaintiff Joe Flores to first obtain an order from the presiding judge permitting the filing."*fn2
At the hearing on the anti-SLAPP motion (which the court denied), the court indicated that, in accordance with the plain words of the statute, the prefiling requirement did not apply when a litigant was represented by counsel. Respondent's counsel agreed that the language of the statute excluded (from the prefiling-approval requirement) plaintiffs represented by counsel, but asserted that case law changed that result. The trial court took the matter under submission.
On October 7, 2009, the court granted the request to dismiss appellant for failure to obtain prefiling approval of the litigation. The court wrote in its decision: "At the hearing defendant brought to the court's attention the case of [Camerado Ins. Agency, Inc. v. Superior Court] (1993) 12 Cal. App. 4th 838, which holds that simply obtaining counsel does not permit a vexatious litigant to avoid the protection afforded potential targets under the statute." On October 19, 2009, the court entered its formal order dismissing appellant from the litigation.
After his motion for reconsideration was denied on December 2, 2009, appellant filed a timely notice of appeal. The primary issue on appeal is whether the court erred in dismissing the action pursuant to section 391.7, subdivision (a).
Sections 391 through 391.6, comprising title 3a of part 2 of the Code of Civil Procedure, Vexatious Litigants, were initially adopted in 1963. (See Stats. 1963, ch. 1471, § 1, p. 3038.) One becomes a vexatious litigant, as defined in section 391, by taking certain actions while in propria persona--that is, while not represented by an attorney.
A defendant's primary protection against a vexatious litigant under the 1963 enactments is an order that the plaintiff post "security." Such an order is available upon a showing that the plaintiff is a vexatious litigant and that "there is not a reasonable probability that he will prevail in the litigation against the moving defendant." (§ 391.1.) If such an ...