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‘Vexatious Litigant’ Designation Is Inappropriate Based on Single Relitigation Attempt—C.A.
Opinion Says Documents Filed After Sustaining of Demurrer With Prejudice, but Before Adverse Judgment Was Final, Cannot Be Taken Into Account
By a MetNews Staff Writer
A man who was declared to be vexatious litigant based on “repeatedly” attempting to relitigate a matter that had been decided has been relieved of that designation by the Third District Court of Appeal in an opinion that says that the filing of motions after a judgment was entered but before it became final don’t count and that bringing a single duplicative lawsuit later is not enough to satisfy the statute.
Justice Aimee Feinberg authored the unpublished opinion, filed Wednesday.
The statute in issue is Code of Civil Procedure §391. Aside from its more familiar basis for declaring a plaintiff to be a vexatious litigant—having brought five unsuccessful actions, as a pro per, in the past seven years—§391(b)(2) says that such an adjudication can be made where a person “repeatedly relitigates or attempts to relitigate, in propria persona” matters that have been decided with finality.
Gabriel Omar Gigena was determined by Amador Superior Court Judge Renee C. Day to come under §391(b)(2).
Towed Automobile
The dispute between Gigena and defendant Rick Finch and his company goes back to Dec. 2, 2019. At the request of a California Highway Patrol officer, Finch towed Gigena’s automobile.
On Jan. 3, 2020, Gigena sued Finch and Finch Body Shop for conversion. A demurrer to the second amended complaint was sustained without leave to amend on Sept. 24, 2020 and a judgment of dismissal was entered on Oct. 28, with notice of that judgment being served on Nov. 4.
The judgment became final 60 days later—on Jan. 3, 2021—no petition for review having been filed in the California Supreme Court.
However, five additional documents were filed by Gigena between Sept. 28 and Nov. 18 in connection with a purported “Motion for Supplement of the Complaint” which the court on Jan. 6, 2021, on its own motion, ordered stricken as untimely.
Federal Action
Gigena sued Finch in the U.S. District Court for the Eastern District of California on June 27, 2023, based on the same facts. On Sept. 24, of that year, Judge Dale A. Drozd ordered the case dismissed, without prejudice, for lack of jurisdiction.
The federal complaint, with a state-court cover sheet, was filed in Amador Superior Court on Sept. 19, 2023. It was in that case that Day on Jan. 4, 2024, declared Gigena to be a vexatious litigant, making the requisite finding that there was a lack of probability he would prevail on the merits, and requiring that he post a $10,000 security bond and, pursuant to California Code of Civil Procedure §391.7, that he seek permission of the presiding judge of any court in which he proposes to file a new case in pro per.
Day did not take into account the filing in the Eastern District of California, apparently because there was no final determination in that proceeding.
Feinberg’s Opinion
In her opinion reversing Day’s order, Feinberg noted that the five documents Gigena filed in his initial action after a demurrer was sustained without leave to amend came before Jan. 3, 2021 when the judgment in that case became final. She wrote:
“Those documents therefore cannot support a vexatious litigant finding under section 391, subdivision (b)(2)…. Put another way, Gigena’s filing of these documents cannot be deemed an attempt to relitigate a lawsuit that ‘has been finally determined against’ him….
“That leaves Gigena’s filing of the present lawsuit. The present suit does appear to seek to relitigate matters that were at issue in Gigena’s initial state court action, and the current suit was filed long after the judgment in Gigena’s initial action was final. But filing one additional lawsuit involving the same matter does not constitute ‘repeatedly’ attempting to relitigate a claim within the meaning of section 391, subdivision (b)(2).”
The case is Gigena v. Finch, C100546.
Wednesday’s opinion leaves open the prospect that Finch could move to have Gigena declared a vexatious litigant based on five court losses in the past five years. A number of losses were incurred by Gigena in federal court, and §391 applies, under subd. (a), to the defeat of pro per actions or proceedings “commenced, maintained or pending in any state or federal court.”
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