San Jose, California, April 27, 2020
Judiciary and the law profession [collectively hereafter the "Defrauders"] have fooled the legislature and public into enacting the Vexatious Litigant ["VL"] law, touting that the VL law is to curb frivolous new lawsuits/litigation.
In practice, VL law has been misused to simply avoid, shirk work, shut out self represented weak litigants from access to courts, leaving courts only for wealthy litigants, and also used VL a tool to punish & blackball "whistle blowers", individuals, raising concern over the"defrauders" corrupt acts, for e.g. exposing the "kids for cash" RICO scheme in divorce courts. See for example https://drive.google.com/file/d/1SW4ODj2pOnGpaum2RxVhhlGgmdNc2Ki5/view?usp=sharing
The target/victim of VL is left worse than a Jew during Nazi occupied Germany. The VL is stripped of all of his legal rights, loses child custody forever, cannot appeal adverse, bad faith orders, worse, life long restraining orders are issued against VL without due process, without notice and without children, or other parent seeking one, VL's home/residence property is awarded to the other parent, in violation of the Vth Amendment to U.S. Constitution clause on unlawful taking, let alone, without a just compensation, mortgages on the home are expunged without the mortgage beneficiary being given a notice, made party to the case, or participating in the process, and much worse. In short isolating VL from family, children, property, job, any motive to live. A gross human rights violation of the worse kind. There are many live examples of such VL victims existing in this state, who prior to their divorce cases were professionals working in blue chip or leading silicon valley companies, but were ruined by the "defrauders". The evidence to back the above has been verified and is available for anyone to check it out. This may sound to be unbelievable, but unfortunately this is true, happening in a country that espouses human rights and democracy. See for example https://www.youtube.com/watch?v=oviTfQjZRiI&t=6s&authuser=4
In California, about 10% of the state's litigant population, i.e. about 3,000 individuals, mainly parents in divorce cases (including ones defending a divorce action filed by their ex-spouse meaning not the lawsuit initiator/filer), poor, minorities, elders, disabled persons, et al., who cannot afford an attorney are euthanized as VL, see https://www.courts.ca.gov/documents/vexlit.pdf. They are locked up in a bottle, cut off, frustrated out of their First Amendment right to the U.S. constitution of having their grievances be heard, but yet have to pay State and Federal taxes that ultimately fund the "defrauders" and pay their salaries.
The "Defrauders" introduced the VL law, touting curbing frivolous lawsuits and that when a vexatious litigant knocks on the courthouse door with a colorable claim, he/she may enter.
In reality its the opposite. Almost 100% of meritorious VL pre-filing approval requests (knock on the door) are denied by the "defrauders" making the touted promise hollow. For e.g. even a pre-filing request asking to enforce that very court's prior order that is being disobeyed by the opposing side for long, which is clearly meritorious, is summarily denied, with the box checked denied, without offering any reason. See https://drive.google.com/file/d/1y4sESt7e63LYDOt4_stsRrOOwbxkKxgC/view?usp=sharing for the relevant pages (redacted for privacy and protection from retaliation).
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| Judge Deborah Ryan with simply "x" denial of Prefiling Request |
Here are some of the many flaws in the current VL law (using the California VL law, California Code of Civil Procedure section 391 et seq. as example) and the potential cure.
1. SCOPE: TARGETS LOW INCOME, ELDER, WEAK, DISABLED, MINORITY, SELF REPRESENTED UNIVERSE: VL law applies only to self represented (without attorney representation) litigant's new litigation. In other words, new litigation filed with attorney representation, howsoever frivolous, can never be subjected to the California VL restriction. This means that the wealthy litigants get a free pass and their frivolous litigation is favorably and preferentially treated. The practical effect of this is to discriminate against poor, elder, disabled self represented litigants who cannot afford an attorney. It is well known that there is no matter of right and that California state does not appoint an attorney for a impoverished litigant in a civil matter, nor are there any meaningful avenues of help. Worse, California state, makes it a crime for anyone, other than a licensed attorney, to assist a self represented party, which makes even the legally educated non-attorney folks reluctant to assist. Average attorney rates range from $300 to $600/hour. The argument that attorneys are bound by the state bar code of professional conduct rings hollow as attorneys are seldom disciplined for initiating a frivolous lawsuit on behalf of a client. Judges and attorneys have a cozy relationship as one needs the other to further their career/business. Moreover, VL bar, is far severe than any slap on the wrist attorney reprimand. ANSWER: VL law should apply to both self represented and attorney represented filings, meaning to all frivolous lawsuits, regardless of whether initiated by wealthy or poor.
2. VL LAW IS INTENTIONALLY WORDED VAGUELY LEAVING SUSCEPTIBLE TO SUBJECTIVE INTERPRETAION: There is no black and white criteria for VL law. For e.g. Per California Code of Civil Procedure ["CCP"] Section 391(b) “Vexatious litigant” means a person who does any of the following:...(3) In any litigation while acting in propria persona [meaning self represented, without attorney representation, see 1. above], repeatedly files unmeritorious motions, pleadings, or other papers". What is unmeritorious, who decides its unmeritorious, or how many unmeritorious papers, is left solely to the "defrauders" discretion which leads to abuse. Since it is a one person show, the "defrauder" would simply deny few motions in bad faith, and use those very denials counting them as unmeritorious and in turn, as support to label the target of his/her abuse as VL. Also in a typical divorce case that lasts for almost a decade or so, there arises a need for several motions, requests, et al. for child visitation, property division, restraining order(s), child custody, reimbursements, child support, spousal support, and much more. There is a wide range of case-law where less than five motions is held sufficient to label a person VL. In other cases, influential Caucasian parties, despite filing years of hundreds of unsucccessful motions are never labeled a VL as the "defrauders" go for soft targets like elderly, poor, minorities. This itself shows that VL has nothing to with curbing frivolous lawsuits, but misused as a weapon to crush whistle-blowers. Moreover, VL law was mean't to curb new lawsuits, whereas the above (procedural motions) is applied to individuals who never filed a lawsuit, but to, for e.g. parents, defending the lawsuit against them via procedural motions, a divorce lawsuit brought by their vexatious ex-spouses. In other words Defendant's motions invariably gives rise to defendant being labeled a VL, when that defendant never filed the lawsuit to begin with, and when VL is mean't to curb filing of frivolous lawsuits vs. procedural papers and motions. ANSWER: Must have a black and white criteria like CCP section 391(b)(1) which is not subject to subjective interpretation. Litigants must be put on notice with an objective measure, not a subjective one. For e.g. what is a unmeritorious lawsuit should be specifically defined, for e.g. as one that is foreclosed by law, say if someone files one after the statute of limitations time has expired, or if the law prohibits that lawsuit due to say ANTISLAPP act.
3. SCOPE: GOES BEYOND A NEW LAWSUIT; COVERS ALL PROCEDURAL FILINGS IN DEFENSE OF OPPOSITION INITIATED LAWSUIT TOO; DEFEATS THE PURPOSE OF VL LAW: VL law applies not just to new lawsuit, but to every procedural step in a lawsuit, even if one did not initiate the lawsuit to begin with and is merely defending the lawsuit. For e.g. a VL parent sued for divorce cannot file any request, paper, motion, application, say for child visitation or anything. Every filing comes under the ambit of the VL restriction. See CCP section 391.7 "(d) For purposes of this section, “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"ANSWER: Repeal such open ended definitions like CCP Section 391(b)(3) & 391.7(d), and restrict VL law to new, frivolous, lawsuits only.
4. MYTH THAT VL MAY OBTAIN A PERMISSION TO FILE NEW LAWSUIT AND THUS MERITORIOUS LAWSUITS ARE NO BAR: The Defrauders touted that VL restriction is narrowly drawn, and that California's vexatious litigant statutes does not prevent a vexatious litigant to continue to file meritorious lawsuits. They simply provide that the litigant may be required to post a bond in cases where "there is not a reasonable probability" that the vexatious litigant will prevail. In reality, almost 100% of the self represented VL prefiling requests are summarily denied, with the box checked denied, without an explanation, despite being meritorious. A identical filing under attorney's name is admitted, but not under the self represented VL person's name. This proves that the criteria is not meritoriousness of the filing, but the identity of the filer, i.e. VL are treated as untouchables, outcast, and not permitted entry. ANSWER: Identity of the prefiling applicant should be redacted/hidden, and if the prefiling is meritorious, no bond requirement should be asked. Meritorious should be defined as a "cognizable" and actionable claim, regardless of ultimate success. For e.g. a new lawsuit beyond the statute of limitation time period is unmeritorious because it has zero chance of success. Prefiling reviewer may not question, or adjudicate prefiling facts, but must take them as true, unless the facts are totally impossible, like the sun rises in the west.
5. ATTORNEY'S SHUN REPRESENTING VLs; VL STIGMATIZED: The "defrauders" tout that a VL can privately hire an attorney to commence a lawsuit as the latter does not require a prefiling permission. First, almost all attorneys avoid representing a VL given the VL stigma, because VL are persons that are outcast, blackballed by the "defrauders" and therefore the chances of attorney making money/fees, with the predisposed "defrauders" always ruling against a VL, is next to none. Next attorneys want to be in good books with the "defrauders" and suck up to them. They are not going to risk their business by associating with, and representing, the ostracized, untouchable VL. Next, to the extent an attorney is brave enough to risk all of the above, the bond requirement is set so high so as to make it impractical to pursue the litigation. For e.g. in one case even when the opposition was a self-represented party, who also happened to be an attorney by profession, and did not incur any costs of attorney representation, the bond requirement value was intentionally set way high to stop VL from pursuing access to justice, notwithstanding no need for such a high bond. Technically the bond is to defray the cost to Opposition, if latter prevails. But the "defrauders" set the bond high to punish VL and preclude them from access to justice. ANSWER: Bond value, if any, should be an estimate that opposition needs to defend the lawsuit, no more. Attorneys found refusing to represent VL, solely based on VL stigma, should be severely disciplined. Local non-profit agencies should be set up to vet VL new lawsuits and endorse ones that are meritorious. For e.g. the Senior Adult Legal Agency can vet if an elder's restraining order request is meritorious and file it for the elder. In fact, prefiling decision of VL new lawsuits should be handled by non-profit legal services, who are completely independent of Judges to avoid latter misusing VL law to punish or shirk work.
6. PREFILING PERMISSION 100% DENIED WITHOUT A WORD OF EXPLANATION: All professions are answerable for their actions, even the U.S President, but not the "defrauders". VL will never know why their prefiling requests are summarily denied with the box checked denied. Other than a "X", there is no explanation as to why the request lacked merit, or why it did not make the cut of a colorable claim. By so doing, the "defrauders" escape culpability for their misdeeds and hide under that "X" checked box. It's like "what goes in Vegas, stays in Vegas", and without an explanation for the denial there is no accountability for their corrupt acts. Moreover, this gives no input, no learning to the VL victims as to what was lacking, or what did they do wrong? This is by design, in bad faith. ANSWER: State and public must make it a law that every judicial order (even outside of the prefiling orders) must contain a reason for the decision, especially a denial. One can never know if the "defrauders" did their job in good faith if there is no reason provided for the denial. Almost all denials, without reason, are presumptive bad faith denials.
7. VL CURB, PERPETUAL, FOR LIFE: Although touted as narrowly drawn, the VL restriction has no expiry date, no set standard to remove the shackles. Worse, every denial of the prefiling requests, where the "defrauders" offer no explanation for their denial, is treated as grounds/proof to justify that the VL restriction should remain. So the very act that the "defrauders" force VL to undertake, i.e. seek prefiling permission, is then turned and used against the VL for denial of removal from VL label. Among the thousands and thousands of VL in the state of California, there has been no instance of a individual ever being removed from the VL status. This proves that VL is not designed to curb frivolous litigation, but to keep the whistle blowers silent forever, as second class citizens with no rights. ANSWER: VL order should be, at maximum, be set to expire after one year, and should be automatically scheduled for a renewal hearing. At that hearing, the burden should be on the "defrauders" to show that the VL order needs to continue for another year. This is because VL ruins person's life, liberty, careers, pursuit of happiness, credit record, and more.
8. RIDICULOUS GROUNDS TO DENY REMOVAL FROM VL STATUS: There is no VL law that sets clear cut, objective grounds for VL removal. Again the ambiguity is intentional, and by design. Grounds listed in CCP section 391.8(c) is vague "upon a showing of a material change in the facts upon which the order was granted and that the ends of justice would be served by vacating the order". Material change in facts, ends of justice is a subjective and vague criteria, which in practice mean, never remove. Ground to refuse denial from VL removal is the very VL's prefiling denials, and also the denial of higher court review, writ, or petition review, with state or U.S. Supreme Court. But vast majority of, over 99.9% of even attorney drafted reviews lodged before the Supreme Court are denied permission for review. If that is the criteria, then by definition, 99.9% of attorneys should be labeled as VL. ANSWER: If a VL has not committed any infraction that falls within the definition of a VL during the interim period (for e.g. file a frivolous new lawsuit), then the VL order should automatically expire. Again the impact of a VL bar on the victim is so severe that length and removal of VL orders is important. Also even during the interim period, if due to VL order, the VL is suffering injustice, for e.g. cannot appeal a child custody order, or file a child visitation motion, the VL order should be vacated, or exceptions made. In fact, VL should be exempt parents of divorce court as they do not fit the mold of frivolous new lawsuit filers.
9. VL IS NOTHING MORE THAN A WEAPON USED IN BAD FAITH TO RETALIATE, PUNISH, AVOID LEGITIMATE WORK: Vast majority of VL restriction is placed on self represented litigant after the latter whistle blows, or even mildly voices concern over the "defrauders" irregular, corrupt acts, for e.g. "Kids for cash" ransom demands, or an attempt to disqualify the judge ["DQ"] for a conflict, abuse, et al.. Instead of encouraging oversight and protect the whistle blowing over corrupt acts, VL is misused as a tool to silence and chill the former. The DQ for cause is never granted. Judges retaliate, as a DQ for cause goes on the judge's record, presumably makes them look bad and reduces their chances of judicial advancement. Thus VL becomes a weapon to retaliate, punish, blackball a self represented litigant, who was simply exercising his/her legal DQ right, and not knowing better that DQs for cause, are never granted. It's the same logic when a whistle blowing employee is retaliated upon by the employer misusing the tools at their disposal. See for e.g. https://drive.google.com/open?id=1SW4ODj2pOnGpaum2RxVhhlGgmdNc2Ki5
VL is also loosely used as a tool to offload legitimate work, despite the fact that judges spend very little time on job, outside of tardy presence at "in court" hearing (all of their adjudication work is done by staff attorneys), and judges are seen leaving the courthouse for home in the middle of the day, right after their "in person" appearances in the court room is completed. ANSWER: Enact anti-retaliation law that prohibits a Judge, whose DQ was sought, from using VL tool. In fact, judges should be totally prohibited from invoking the VL tool, period! regardless of DQ, as otherwise it amounts to Judges taking a side in the case. Judges cannot be an adversarial party to the case. Only the opposition may invoke a VL request, should they find the new frivolous lawsuit is unjustly taxing/burdening them.
10. JUDGE INITIATED VL MOTION; SAME PERSON HEARS, RULES, AND DECIDES ALL FUTURE REMOVAL REQUESTS: VL law was designed for the opposing litigant to file a motion to label a frivolous filed lawsuit/litigant, if it was overburdening the former. Instead, judges inject themselves into the litigation to initiate a VL motion, when a litigant uses a statute, that permit disqualification of a judge, peremptorily, or for cause ["DQ"]. VL restriction is more often than not, initiated by judges, when in theory, judges should be objective, independent and not become embroiled in, and a adversary to any litigant, no matter what the provocation. By taking sides and punishing one side with VL restriction, and by initiating their own motion to label, hear and rule a self represented litigant under the VL restriction, a judge becomes a party to the case, embroiled with the litigant vs. a distant, objective, neutral adjudicator. Same principle when judges go outside the minor's counsel pool, and appoint their hand picked person as minors counsel, who in essence does the judge's own bidding and "kids for cash" extortion schemes from parents. ANSWER: No judge must be allowed to initiate a VL motion. Opposition initiated VL motion should be jury tried, not determined by anyone remotely linked to the legal profession, given the harm and severity of the VL restriction on the target. Judge may not control or drive the jury, or be the de-facto 12th juror, or control what evidence can, or cannot be heard by the jury. Judge should stay out from participating in jury trial, except to ensure that the proceedings are conduced with a statutory notice, and with due process. This is because jury trials are meaningless if Judge is overbearing on the jury, controls the jury, and channels/influences the jury to his/her predisposed outcome, a common occurrence nowadays.
11 .REMOVAL OF VL DETERMINED BY THE SAME "DEFRAUDER": Worse, any application to remove one from VL list has to be made before the very disgruntled "defrauder" that placed the applicant on VL restriction in the first place. CCP section 391.8(a)"The application shall be made before the justice or judge who entered the order". In other words, there is no checks and balances, but rather the same person, files a motion to label a self represented litigant VL, hears his/her own motion, self- rules on his/her motion, and keeps denying future applications from the VL to remove that restriction. There is no oversight, or second set of eyes to review this. That is because one has to get a prefiling request approved to file an appeal, and as stated before, prefiling requests are almost 100% denied without an explanation, so there is no second eyes of review, notwithstanding that appellate justices are not really a second set of eyes but part of the same "defrauders" gang/team. ANSWER: Like a prisoner's release probation type panel hearing independent of the judge that sentenced the prisoner, the removal from VL should be before a panel of citizens, who are independent of the adjudicator of the original VL finding vs. being heard by the same judge who holds a predisposed grudge against the victimized VL. Morever, per earlier, a VL should have a expiry date.
12. IMPACT OF VL ON INDIVIDUAL'S LIFE/CAREER: VL list is made public. Also with the proliferation of internet, the legal decisions are now out open in public. When the naive general public reads the "defrauders" orders that contains false findings, they don't know the "defrauders" bad faith corrupt acts that is behind it, the false statements cited as facts similar to fake news, and innocently presume the decisions to be true, as though tried with notice and due process, when invariably most are not. All of this comes up in a routine employment background check, or even a google search by a prospective hiring manager, and in many instances the latter have reversed jobs offers and lead to termination of employees upon learning about the VL stigma. ANSWER: Enact a law that prohibits discrimination, including employment based, arising from the VL status. Educate public that VL does not mean the person is bad, to be shunned or stigmatized, but rather to be assisted because the person has been temporarily asked to take the extra step of prefiling permission to pursue meritorious causes. One step further, set up a no cost, or low cost attorney clinics to assist VL in pursuing justice, with the intent that VL's meritorious lawsuits will not get stifled. Worse parents, or civil litigants' mere procedural applications during the pendency of, or in defense of a lawsuit not initiated by them should not be called VL as that misrepresents reality, given that VL to the world means individuals filing numerous frivolous lawsuits. Here a procedural filing is not filing a new lawsuit.
13. NO OVERSIGHT OVER VL ABUSE: There is currently no oversight of who, how, when, why someone comes on VL list, and how they are impacted. For e.g. most VLs cannot find jobs, become a public burden on state funded welfare programs, do not contribute as much in state tax income, develop distrust of the legal system and judiciary, get mentally disturbed, are kept away from their children forever, or many years, children without both parents grow up to be mentally disturbed and commit school shootings and other violence, and more. Statistics have shown that VL denied court access find other ways to get their grievances resolved, and some of them could be violent and not the preferred civil manner. Society must encourage and keep the civil resolution court doors open, rather than close, to foster peaceful manner of dispute resolution. VL law does more harm than good. It turns on its head and actually creates more work for judges and others, rather than less. For e.g. high volume of prefiling requests at every procedural step of the litigation the VL is defending. In a typical divorce case that runs for a decade or more, that means waste of judicial resources on these requests, its adjudication, its appellate review and more. ANSWER: California State Auditor, or a similar independent state appointed citizens or a private auditor should present annual statistics on the quantum, plight, the impact on society, families, et al. due to the VL restriction
14. TAXATION WITHOUT REPRESENTATION AND LEFT WITHOUT SERVICE: The question one should ask is why should a California state resident, or a U.S. citizen pay taxes for government services, when his/her taxes that ultimately funds those services, including judiciary services, are denied to him/her. ANSWER: VL should be given a state and federal tax exemption, of say 10% of their Annual Gross Income ["AGI"] and not be asked to pay for services that the state denys them.
Of course, to cure all evils and fraudulent acts committed by the "defrauders" there needs to be meaningful oversight by individuals, outside of the "defrauders", i.e. outside of the judiciary and legal profession, just as there is one in every other profession. For e.g. Securities and Exchange ["SEC"] oversight on financial frauds. California State has a meaningless Commission of Judicial Performance body, which is a hollow oversight, which only gives an appearance of oversight but without any substance, as it is comprised mostly of the "defrauders" themselves, has no adequate budget, no transparency and whose existence and effectiveness has been called into question by the state legislatures and even recently by the California State Auditor General, see for e.g. https://www.auditor.ca.gov/reports/2016-137/index.html
The keys to the judicial business, is entirely, and unwisely handed over to law profession, one of the world's most corrupt profession, with no oversight, and the latter has run havoc against mass public, particularly, the weak, poor, minority, elder, and disabled ones. It's time for the public to take back control of that key and oversight to the judicial business by holding the latter accountable for their corrupt, defrauding acts, and not give them a free rein. No other business operates in so much secrecy, with no accountability as the "defrauders". It's time to change that. Remove the "defrauders" self created judicial immunity for felony level criminal acts and fraud on the true court. If a U.S. President can be sued, and if all other professions can be sued, why not the defrauders? There should be no protection for corrupt acts on the bench, notwithstanding the alleged argument that it will make judicial appointments less attractive. It will not, as only those "defrauders" who intend to use their office for nefarious acts will be impacted. It will drive the right behavior and keep out the bad apples, who are mutating currently in the California legal and judiciary system right now like the Covid-19.
Public simply does not have the wherewithal to keep recalling corrupt judges. In 2018, Judge Aaron Persky was recalled by Santa Clara County, California voters, but that took a massive ground level effort, years of time and legal challenges going all the way to the state Supreme Court, and with millions of dollars of investment. Public cannot do afford this for every corrupt "defrauder". Persky's misdeeds and bad record eventually caught up with him even on his post recall jobs. See https://www.usatoday.com/story/sports/2019/09/12/brock-turner-case-judge-aaron-persky-fired-tennis-coaching-job-lynbrook/2297795001/
For public to change bad laws, the burden is huge, monumental, not practical. Requires millions of signatures to put the change on the ballot. For the "defrauders" to change the law for ulterior gain, they are permitted to do it easily without a ballot measure a short cut vs. the high burden threshold that public has to undergo. That must change to level the playing field
Public rely on media, legislators, et al. as they are public's voice, to act and influence change, and not be subdued, or fearful of the "defrauders". If not the media and legislators may not last long, and may not be able to retain public trust and confidence. Since the doors of justice are the very doors perpetrating the crimes, media and legislators are the only civil recourse, before one is tempted to use non-civil means.
This piece is intended to drive the right behavior, correct the flaws, and make change for the better and for all. If not our children and future generations will suffer and rot the same way
Please direct your comments and queries to jaithiruvengdam@gmail.com
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