Vexatious Litigant

Vexatious litigant subject to prefiling order precluding propria persona filings is not excused from dismissal of complaint by subsequent retention of counsel. Carmen Kovacevic v. Avalon at Eagles’ Crossing Homeowners Association et al., (No. D055852 California Courts of Appeal, Third Appellate District, Division One, October 26, 2010).

Plaintiff, in pro per, filed a complaint containing numerous causes of action against the defendant.  The defendants filed a notice pursuant to California Code of Civil Procedure, Section 391.7 in which they requested that the court dismiss the case on the ground that the plaintiff was a vexatious litigant who, in filing this action, violated a 2002 pre-filing order that precluded her from filing any new litigation in pro per without leave of court.  The trial court entered a judgment dismissing the action without prejudice. 

On appeal, plaintiff claimed that the trial court erred in dismissing the case.  Plaintiff claims that she “cured” the improper in pro per filing of the litigation through her subsequent retention of counsel to represent her in the action.  The appeals court affirmed the trial court’s ruling.  The appeals court determined that the statute does not provide any exclusion when an in pro per plaintiff retains counsel.

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