requirement is akin to a licensing or permit system, which constitutes a " 'practical means
of managing competing uses of public facilities[.]' [Citation.] When a vexatious litigant
knocks on the courthouse door with a colorable claim, he may enter." (Wolfgram v.
Wells Fargo Bank (1997) 53 Cal.App.4th 43, 60.) But, that entry may be conditioned on
representation by counsel or permission from the presiding judge to proceed in propria
persona along with the posting of security. (§ 391.7, subds. (a) & (b).)
In Mahdavi v. Superior Court (2008) 166 Cal.App.4th 32 (Mahdavi), this court
held that the prefiling requirement of section 391.7(a) does not apply to a vexatious
litigant defendant appealing an adverse ruling. (Mahdavi, at p. 34.) The Mahdavi court
explained: "A defendant who appeals an adverse ruling is not filing 'new' litigation or
'maintaining' litigation, but rather, is attempting to 'undo' the results of litigation that has
been instituted against him or her." (Id. at p. 41.)
In John, supra, 63 Cal.4th 91, our high court examined the language and
legislative history of the vexatious litigant statutes to conclude that the section 391.7
5
prefiling requirements do not apply to a self-represented vexatious litigant's appeal of a
judgment or interlocutory order in an action in which he or she was the defendant. (Id. at
p. 100.) The John court concluded that the legislative history supported Mahdavi's
statutory interpretation.2 (Id. at p. 98.)
Relying on John, Ogunsalu contends the superior court abused its discretion by
relying on his status as a vexatious litigant to deny his request to file the petition for writ
of administrative mandate, because he was a "defendant" in the administrative hearing
before the Commission and sought to "appeal" a ruling against him in that proceeding.
John does not directly address the issue before us whether the person responding to an
administrative writ proceeding who then initiates a writ of mandate proceeding in the
superior court to challenge a ruling in the administrative proceeding is considered a
"defendant" under the vexatious litigant statutes. Nonetheless, the plain language of the
vexatious litigant statutes provides the answer to this question.
"[T]he objective of statutory interpretation is to ascertain and effectuate legislative
intent." (People v. Flores (2003) 30 Cal.4th 1059, 1063.) To determine legislative
intent, we must examine the words of the statute, giving them their usual and ordinary
meaning and construing the words and clauses in the context of the statute as a whole.
(People v. Murphy (2001) 25 Cal.4th 136, 142.) "If there is no ambiguity in the language
of the statute, 'then the Legislature is presumed to have meant what it said, and the plain
2 The John court disapproved Mahdavi "to the extent it could be interpreted as precluding a Court of Appeal from declaring an in propria persona defendant on appeal to be a vexatious litigant under section 391." (John, supra, 63 Cal.4th at p. 99, fn. 2.) 6
meaning of the language governs.' [Citation.] 'Where the statute is clear, courts will not
"interpret away clear language in favor of an ambiguity that does not exist." ' " (Lennane
v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268.)
"Litigation" means "any civil action or proceeding, commenced, maintained or
pending in any state or federal court." (§ 391, subd. (a), hereinafter § 391(a).) A
"[p]laintiff" is defined as "the person who commences, institutes or maintains a litigation
or causes it to be commenced, instituted or maintained." (Id. at subd. (d).) A"
'[d]efendant' means a person (including corporation, association, partnership and firm or
governmental entity) against whom a litigation is brought or maintained or sought to be
brought or maintained." (§ 391, at subd. (e), hereinafter § 391(e).) Here, Ogunsalu is the
"plaintiff" because he commenced litigation (the writ of mandate proceeding) in the
superior court. The OAH is the "defendant" because it is the governmental entity against
whom Ogunsalu bought the litigation. Under the plain language of the vexatious litigant
statutes, the underlying administrative proceeding does not qualify as "litigation."
(§ 391(a).) We are bound to apply the express definitions drafted by the Legislature to
the facts before us. (See Delaney v. Superior Court (1990) 50 Cal.3d 785, 804 ["It is
bedrock law that if 'the law-maker gives us an express definition, we must take it as we
find it . . . .' "].)
Nonetheless, we are sympathetic to Ogunsalu. If section 391(a) defined
"litigation" as "any civil action or proceeding, commenced, maintained or pending in any
state or federal court or any administrative proceeding" then Ogunsalu qualifies as a
defendant under section 391(e), i.e., a person against whom litigation is brought or
7
maintained or sought to be brought or maintained. Under the principles set forth in
Mahdavi and John, Ogunsalu's filing of the writ of mandate in superior court, essentially
the appeal of an adverse ruling in the administrative proceeding brought against his
preliminary teaching credentials, would not qualify as "new litigation" within the
meaning of section 391.7(a) subject to a prefiling requirement.
As we indicated, the Legislature expressly defined "litigation" as not including
administrative proceedings and we must take the statute as we find it. Our review of the
legislative history for sections 391 and 391.7 reveals the Legislature did not consider
whether administrative proceedings should be included in the definition of litigation
when enacting and amending these statutes. Rather, since its enactment in 1963, section
391 defined "litigation" as an action or proceeding pending in a "court."3 (Stats. 1963,
ch. 1471, § 1, p. 3038.) It is up to the Legislature to change the wording of section 391(a)
to make it applicable to administrative proceedings; something we suggest that the
legislature consider.
Accordingly, the superior court properly applied the vexatious litigant prefiling
requirement to Ogunsalu's writ of mandate proceeding to assess whether the proposed
3 When enacted in 1963 section 391 defined "litigation" as meaning: "any civil action or proceeding, commenced, maintained or pending in any court of this State." (Stats. 1963, ch. 1471, § 1, p. 3038.) The 1990 amendment to the statute changed the definition to add federal courts: " 'Litigation' means any civil action or proceeding, commenced, maintained or pending in any state or federal court of record." (Stats. 1990, ch. 621, § 1, p. 3071.) The 1994 amendment deleted the words "of record" and thus expanded the definition of litigation to apply it to all courts, whether or not they are courts of record. (See Historical and Statutory Notes, 14A West's Ann. Code Civ. Proc. (2004 ed.) foll. § 391, p. 4; see also Stats. 1994, ch. 587, § 3.5.)
8
new litigation had merit. By denying Ogunsalu's request to file new litigation by a
vexatious litigant, the superior court necessarily examined Ogunsalu's petition and
determined it lacked merit or had been filed for the purposes of harassment or delay.
(§ 391, subd. (b).) There is no need for us to address the propriety of the superior court's
conclusion as Ogunsalu's petition is now moot.4
DISPOSITION
The petition is dismissed as moot. The parties are to bear their own costs of this
writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(B).)
NARES, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
4 Our prior order denying Ogunsalu's request to file new litigation in this court is vacated, and the request is granted. 9
AI Brief
AI-generated · verify before citing
Holding. The court held that the vexatious litigant prefiling requirements of Code of Civil Procedure section 391.7 apply to a self-represented litigant who initiates a writ of mandate proceeding in superior court to challenge an administrative ruling, because such a proceeding constitutes 'new litigation' under the statutory definition. The court further held that the underlying administrative proceeding does not qualify as 'litigation' under the statute, meaning the litigant is a plaintiff rather than a defendant in the superior court action.
Issues
Whether the prefiling requirements of Code of Civil Procedure section 391.7 apply to a vexatious litigant filing a writ of mandate in superior court to challenge an administrative proceeding.
Whether an administrative proceeding qualifies as 'litigation' under Code of Civil Procedure section 391, subdivision (a).