Shalant v. Girardi
126 Cal. Rptr. 3d 98
| Cal. | 2011Background
- Shalant, a vexatious litigant under CCP §391, was subject to a prefiling order under §391.7 prohibiting filing new litigation in propria persona without court approval.
- He filed the present action against Girardi and National Union through counsel after losing representation in the action already pending.
- The trial court dismissed based on §391.7, ruling Shalant violated the prefiling order by filing in propria persona.
- Court of Appeal reversed, holding §391.7 applies only to actions filed in propria persona by a vexatious litigant.
- Supreme Court granted review to address whether §391.7 dismissal was proper when the action was filed through counsel.
- The Court held §391.7 governs filing new litigation in propria persona; filing through counsel does not violate the prefiling order, and dismissal under §391.7 was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §391.7 apply when filing occurs through counsel? | Shalant was not filing in propria persona; no violation. | Prefiling order prohibits filing any new litigation without permission; any filing could trigger §391.7. | No violation; §391.7 does not apply when represented. |
| What remedies govern vexatious litigants in pending actions if §391.7 is not applicable? | Use other remedies under §391.1–§391.6 for security or dismissal. | §391.7 provides the relevant remedy for new actions; pending actions need security under §391.1. | Security/dismissal under §391.1–§391.6 remain available. |
| Did Forrest v. Department of Corporations misinterpret §391.7's scope? | Forrest supports broad dismissal whenever vexatious litigant proceeds without counsel. | Forrest overbroad; §391.7 only governs filing of new litigation, not ongoing proceedings. | Disapproved to the extent it held §391.7 applies to acts other than filing new litigation. |
| Should the filing of a new action by a vexatious litigant via counsel be dismissed under §391.7? | Not applicable; action not filed in propria persona. | If treated as new litigation, §391.7 could apply. | Action not subject to §391.7 dismissal; proceed under other remedies. |
Key Cases Cited
- Bravo v. Ismaj, 99 Cal.App.4th 211 (Cal. App. 2002) (two separate remedies in vexatious litigant statutes; §391.7 supplements existing remedies)
- McColm v. Westwood Park Assn., 62 Cal.App.4th 1216 (Cal. App. 1998) (§391.7 operates beyond the pending case; prefiling order limits future filings)
- Forrest v. Department of Corporations, 150 Cal.App.4th 183 (Cal. App. 2007) (holding §391.7 may apply to continued actions; disapproved to extent broad on all proceedings)
- Rooney v. Vermont Investment Corp., 10 Cal.3d 351 (Cal. 1973) (definition of 'proceeding' in context of vexatious litigant statutes)
- Doran v. Vicorp Restaurants, Inc., 407 F.Supp.2d 1115 (C.D. Cal. 2005) (attorney-gatekeeper effect; ethical obligations of attorneys vis-à-vis vexatious litigants)
- In re Shieh, 17 Cal.App.4th 1154 (Cal. App. 1993) (attorney as puppet of vexatious litigant considerations)