Banks v. State of California
ALFRED BANKS, Plaintiff and Appellant, v. THE STATE OF CALIFORNIA, Defendant and Respondent
- Area
- civil
- Panel
- Howard B. Wiener (author)
Analysis
The trial court declared Alfred Banks a vexatious litigant and ordered that he could not file new litigation in propria persona without prior approval from the presiding judge. The Court of Appeal affirmed the vexatious litigant designation but modified the order to explicitly exclude small claims actions from the prior approval requirement.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Declaration of vexatious litigant status under Code of Civil Procedure section 391“While we reject his claim that he was improperly classed a vexatious litigant under the statutory standard, we conclude there is merit to his argument that the court’s “prior approval” order should have excluded small claims actions from its terms.” | unclear | correct | agree with court The opinion states the court rejected the claim that Banks was improperly classified, implying the trial court's finding was supported by the record, though the specific standard of review is not explicitly stated in the text provided. |
Scope of the prior approval order regarding small claims court“An order entered pursuant to section 391.7, however, does not apply to actions filed in small claims court because small claims court is not a “court of record.”” | de novo | error | agree with court The appellate court determined that the trial court's order was overbroad or ambiguous because it failed to explicitly exclude small claims court, which is not a court of record and thus outside the statutory definition of 'litigation' for these orders. |
Authorities
- relied: Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724 — Small claims courts are not courts of record, distinguishing them from municipal courts.
The appellate opinion: sound — The court correctly applied the statutory definition of 'litigation' in Code of Civil Procedure section 391, subdivision (a), which limits the scope of vexatious litigant orders to courts of record. By relying on Merco Constr. Engineers, Inc. v. Municipal Court, the court accurately identified that small claims court is not a court of record and therefore excluded from the mandatory prior approval requirement.
How this analysis was made · dispute it
unusual dispositionThe superior court declared Alfred Banks, a self-represented litigant, a vexatious litigant under Code of Civil Procedure section 391, subdivision (b), and entered a section 391.7 prefiling order barring him from filing any new litigation in propria persona without leave of the presiding judge. The Court of Appeal rejected his challenge to the vexatious-litigant determination (in an unpublished portion), but held that section 391.7 orders cannot reach small claims actions because small claims court is not a court of record, modified the order to expressly exclude small claims actions, and affirmed as modified.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Determination that Banks is a vexatious litigant under section 391, subdivision (b), including his challenges to jurisdiction, statutory compliance, and sufficiency of the evidence“While we reject his claim that he was improperly classed a vexatious litigant under the statutory standard” | unclear | correct | unsure The reasoning on this issue is in the unpublished portion of the opinion and is not before me; the published text states only the conclusion that the determination was proper. Without the analysis I cannot evaluate whether the court correctly applied the statutory standard or the standard of review. |
Scope of the section 391.7 prefiling order requiring presiding-judge approval before filing any 'new litigation' in propria persona, as applied to small claims actions“To avoid confusion, however, we will modify the order to specifically exclude actions filed in small claims court.” | de novo | correct | agree with court The court read section 391.7 together with section 391, subdivision (a), which defines 'litigation' as a civil action in a court of record, and relied on Merco for the proposition that small claims court is not a court of record; it also noted section 391, subdivision (b)(1) itself excludes small claims cases from the count. This is a straightforward statutory construction, and the court held the trial court's order was technically accurate but modified it to remove ambiguity since Banks represented it was being applied to bar small claims filings. The textual analysis is sound and the modification is a sensible exercise of the appellate court's power to clarify the order. |
Authorities
- relied: Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724 — Small claims court is not a court of record, in contrast to municipal courts; cited for the conclusion that a section 391.7 prefiling order does not reach small claims actions because 'litigation' under section 391, subdivision (a) is limited to actions in courts of record.
The appellate opinion: sound with gaps — The published portion answers the overbreadth argument directly with the statutory definition of 'litigation,' a consistent reading of section 391, subdivision (b)(1), and Supreme Court authority that small claims court is not a court of record, reaching a defensible result by clarifying rather than reversing the order. The analysis of the vexatious-litigant determination and the standard of review for it, however, is omitted from the published text, so the opinion as available cannot be fully evaluated on those issues.
How this analysis was made · dispute it
record incompleteOpinion — Wiener
Opinion
WIENER, Acting P. J.The development of the common law is often thought to be the province of creative lawyers. There are times, however, when persons without formal legal training play a significant role in bringing issues to the attention of the courts. In this case Alfred Banks, appearing in propria persona, was declared a vexatious litigant under the standards set forth in Code of Civil Procedure section 391, subdivision (b), precluding him from filing new litigation in state court without prior approval of the presiding judge of the court in which the action was to be filed. While we reject his claim that he was improperly classed a vexatious litigant under the statutory standard, we conclude there is merit to his argument that the court’s “prior approval” order should have excluded small claims actions from its terms. Accordingly, we modify the order and affirm.
In April 1991 the superior court issued an order to show cause why Alfred Banks should not be declared a vexatious litigant. Following a hearing in May 1991, the court found Banks a vexatious litigant under Code of Civil *1149 Procedure section 391 2 and issued an order pursuant to section 391.7 as follows: “[N]o new litigation may be brought by Mr. Banks in propria persona without first obtaining leave of Court from the Presiding Judge of the Court where the pending litigation is going to be filed. Mr. Banks must show that the litigation in question has merit. The Court does not order security to be posted, but issues said order [without] prejudice to any party in any action pending in the courts of the State of California . . . .”
Banks appeals this order contending that the court issuing the order lacked the jurisdiction to do so, the court failed to comply with the requisite statutory provisions and there is insufficient evidence to support it.
Discussion
1. Banks was properly determined to be a vexatious litigant *
2. The order requiring prefiling court approval should be modified to exclude actions in small claims court.
Even assuming he was properly classified a vexatious litigant, Banks argues the court’s order is overbroad in that it fails to exempt small claims actions from the “new litigation” which requires court approval before filing. To the extent there is ambiguity in the court’s order, Banks represented at oral argument that the order was being applied so as to preclude his filing cases in small claims court without review by the presiding judge.
Section 391.7 allows a court to enter an order “which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.” Section 391, subdivision (a) defines “litigation” as “any civil action or proceeding commenced ... in any state or federal court of record.” An order entered pursuant to section 391.7, however, does not apply to actions filed in small claims court because small claims court is not a “court of record.” (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 727, 732 [147 Cal.Rptr. 631, 581 P.2d 636]; see also id. at p. 736 (dis. opn. of Tobriner, J.) [“municipal courts, unlike small claims courts, are courts of record . . . .”].) Such a conclusion is consistent with subdivision (b)(1) of section 391 which, in specifying the number of cases which must be resolved adversely to a litigant, excludes from the calculation any case filed “in a small claims court...”
*1150 The court’s order in this case, which requires court approval for the filing of “new litigation,” is accurate if read in light of the definition found in section 391, subdivision (a). To avoid confusion, however, we will modify the order to specifically exclude actions filed in small claims court.
Disposition
The first sentence of the order is modified to read: “No new litigation, other than actions filed in small claims court, may be brought by Mr. Banks in propria persona without first obtaining leave of Court from the Presiding Judge of the Court where the litigation is going to be filed.” As modified the order is affirmed. The parties will bear their own costs for this appeal.
Froehlich, J., and Nares, J., concurred.
A petition for a rehearing was denied April 21, 1993, and appellant’s petition for review by the Supreme Court was denied June 30, 1993.
Cites, in this corpus
- Merco Construction Engineers, Inc. v. Municipal Court L.A. 30825 · 1978-07-25
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