Vexatious Litigants in California Family Court: What the Law Does and How It Works

Most people facing this question in San Diego County are in one of two places. Some are on the receiving end of request after request from a former spouse or co-parent, each one costing money, time off work and sleep. Others are self-represented, have filed many papers in their own case, and are worried the label could be applied to them. Both groups need to know the same things. What exactly does the law count? Who decides? What changes once the order is entered? If you are in immediate danger, call 911.

This article walks through the definition, the prefiling order, the security requirement, how the motion is proven, and the other tools a family court has when filings cross the line.

Code of Civil Procedure section 391 defines the term. It applies to "litigation," meaning any civil action or proceeding in a state or federal court, which includes family law cases heard by the Superior Court of California, County of San Diego. Most of the tests turn on a person acting in propria persona, a Latin phrase meaning representing oneself without a lawyer.

Under section 391(b), a person is a vexatious litigant if they do any of the following:

1. In the immediately preceding seven-year period, commenced, prosecuted or maintained in propria persona at least five litigations, other than in small claims court, that were either finally determined against them or unjustifiably left pending at least two years without trial or hearing.
2. After a litigation was finally decided against them, repeatedly relitigate or try to relitigate, in propria persona, either the validity of that decision or the same claims or issues against the same defendants.
3. In any litigation while acting in propria persona, "repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay."
4. Have previously been declared a vexatious litigant by any state or federal court of record in a case based on the same or substantially similar facts, transaction, or occurrence.
5. While restrained by a domestic violence restraining order issued after a hearing, commence, prosecute or maintain one or more litigations against the protected person, in this or any other court or jurisdiction, that are found meritless and that caused the protected person to be harassed or intimidated.

The label is a judicial finding. A party calling the other side "vexatious" in a declaration does not make it so, and it carries no legal effect until a court makes the determination on a motion.

Code of Civil Procedure section 391.7 is where the designation gets its teeth. The court, "on its own motion or the motion of any party," may enter a prefiling order barring a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first getting leave of the presiding judge of the court where it would be filed.

The presiding judge must permit the filing only if it appears the litigation has merit and was not filed for harassment or delay, and may condition the filing on posting security. The clerk may not file anything from a person subject to a prefiling order without that permission. If a clerk files it by mistake, any party may file and serve a notice that the plaintiff is subject to a prefiling order; that notice automatically stays the case, and the case is automatically dismissed unless the plaintiff gets a permitting order within 10 days. Disobeying a prefiling order may be punished as contempt of court, a separate process explained in the guide to contempt in family court.

Because the order reaches filings made in propria persona, it does not by its terms restrict filings made through a licensed attorney. Under section 391.7(f), the clerk sends a copy of each prefiling order to the Judicial Council, which keeps a record of people subject to them and sends a list to court clerks each year. The Judicial Council publishes that vexatious litigant list on its website.

A separate motion is described in Code of Civil Procedure section 391.1: a defendant may move, on notice and hearing, for an order requiring the plaintiff to furnish security or dismissing the litigation. So a prefiling order can come from the court or any party, while the section 391.1 security motion is the defendant's.

Section 391.7(d) makes these rules fit family court closely. For prefiling orders, "litigation" includes "any petition, application, or motion other than a discovery motion, in a proceeding under the Family Code or Probate Code, for any order." In plain terms, a new request for order in an existing divorce, custody or support case counts, and a person under a prefiling order generally needs presiding-judge permission to file it in propria persona.

Divorce, custody, child support and spousal support matters in San Diego County are heard by the Superior Court of California, County of San Diego. The patterns that tend to bring these statutes into a San Diego case are familiar: a parent refiling to change custody right after the court ruled, a spouse reopening property issues already resolved in a judgment, or a stream of requests for order that repeat the same arguments. California does not cap how often a parent may seek changes, as covered in the article on going back to court for custody, so the question is not the number of filings alone but whether they meet a section 391 test.

The seven-year, five-litigation test looks at the person's whole civil history in any state or federal court, not only the current family case. A person with one long-running San Diego County divorce and nothing else may fall outside that test while still meeting the repeated-unmeritorious-filings test within the case.

Section 391.1(b) adds a protection for survivors: a motion based on the restraining-order test in section 391(b)(5) may be brought only by the person protected by the order, and that person is not required to pay a filing fee for it.

Code of Civil Procedure section 391.3(a) describes the security order. If, after hearing the evidence, the court determines the plaintiff is a vexatious litigant and that there is no reasonable probability the plaintiff will prevail against the moving defendant, the court "shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix."

Security is defined in section 391(c) as an undertaking to assure payment, to the party for whose benefit it is required, of that party's reasonable expenses, including attorney's fees and not limited to taxable costs, incurred because of the vexatious litigant's case. Its purpose is to protect the person forced to defend meritless litigation from bearing that cost, not to punish.

Section 391.3(b) separately requires dismissal when the court finds the litigation has no merit and was filed for harassment or delay, but only in a narrow situation: the filer is subject to a prefiling order, had a lawyer when the case was filed, and became self-represented after the lawyer withdrew. Under section 391.3(c), a defendant seeking relief under either subdivision combines all grounds in one motion. A security order and a prefiling order are separate tools; a party may face one, both or neither.

Section 391.1(a) requires the motion to be "based upon the ground, and supported by a showing," that the plaintiff is a vexatious litigant and has no reasonable probability of prevailing. That means a noticed motion backed by a declaration and evidence, not a passing request at the end of another hearing.

The evidence follows the test being used. For the seven-year test, it typically includes certified copies of court dockets and the judgments or final orders in each prior case. For the relitigation test, it includes the final determination and the later filings that attack it. For the repeated-filings test, a clear chronology of the current case, showing each request, its subject and how the court ruled, often does most of the work. All of it comes from public court records and the case file. None of it requires access to another person's accounts, devices or messages.

Section 391.3 frames the result around what the court "determines" after "hearing the evidence." The opposing party may respond, and the judge decides whether the statutory test has been met on that record. Assembling it is the kind of preparation that assertive advocacy in a contested case is built on, as described in the overview of an aggressive family law attorney.

The most visible consequence of a prefiling order is statewide reach. Section 391.7(a) covers new litigation "in the courts of this state," so moving across a county line does not avoid it, and the Judicial Council's list lets clerks elsewhere identify the person.

The designation does not decide custody, support or property. Those issues are still decided on their own facts and law. The pending San Diego County case continues; what changes is the gatekeeping on new self-represented filings, including new family law motions under section 391.7(d), along with any security the court has ordered.

The order can be undone. Under Code of Civil Procedure section 391.8, the designated person may apply to vacate the prefiling order and be removed from the list, filed in the court that entered it, generally before the same judge if available. The court may grant it on "a showing of a material change in the facts upon which the order was granted and that the ends of justice would be served." After a denial, another application cannot be filed until more than 12 months have passed.

For a person absorbing the cost of repeated filings in one case, the vexatious litigant statute is not the only response, and often not the first. Two other statutes reach conduct inside a single case.

Code of Civil Procedure section 128.7 treats every signed filing as a certification that it is not presented primarily for an improper purpose, such as to harass or cause unnecessary delay, that its legal claims are warranted, and that its factual claims have or are likely to have evidentiary support. A sanctions motion must be made separately and describe the specific conduct, and it cannot be filed if the challenged paper is withdrawn or corrected within 21 days after service. Sanctions are limited to what is sufficient to deter repetition.

Family Code section 271 lets the court award attorney's fees and costs, as a sanction, based on how far a party's or attorney's conduct "furthers or frustrates the policy of the law to promote settlement of litigation" and to reduce its cost. The court must consider the parties' incomes, assets and liabilities, may not impose an unreasonable financial burden, and must give notice and a chance to be heard. The requesting party need not show financial need, and the award is payable from the sanctioned party's property or income, including their share of the community property. These remedies are available in the Superior Court of California, County of San Diego without any vexatious litigant finding. The article on litigation abuse in family court covers how they work together.

A prefiling order already on record changes the mechanics of a San Diego County case right away. Any new self-represented litigation, including a new request for order in the family case, requires the presiding judge's permission before the clerk may file it. The Judicial Council's public list is the place to confirm whether an order exists.

The existing case does not end. The court continues to hear what is pending, and filings the presiding judge permits still need a response on the merits. If a filing slips through without permission, section 391.7(c) gives any party the notice procedure that stays the case and starts the 10-day clock. Counsel can raise that notice, point out violations of the order, and ask for security or sanctions where the record supports them. Each of those steps is a request to the court; the judge decides.

Whether the filings are coming at you or you are concerned about your own record, the statutes above turn on specific details: how many cases, how each one ended, what the current docket shows, and whether a restraining order is involved. San Diego Family Law Advocates practices California family law only.

To talk with the firm about vexatious litigant and repeated-filing issues, call San Diego Family Law Advocates at 858-758-2288 for a confidential consultation.