Thursday, February 03, 2005

Moran v. Murtaugh, Miller, Meyer & Nelson, LLP (Cal. Ct. App. - January 31, 2005)

Justice Aronson puts a fair amount of bite back into the "Vexatious Litigant" provisions of the California Code of Civil Procedure (sects. 391 et seq.) when he holds here that the judge can weigh the evidence when deciding whether the plaintiff will be required to post security as a vexatious litigant.

This holding by the Fourth Appellate District disagrees with the Second Appellate District's decision in Devereaux, which held that the court was instead required to assume the truth of the factual allegations of the Complaint when deciding whether or not there was a reasonable probability that plaintiff would prevail in the action.

It's a fairly important issue, particularly given the relatively broad definition of who constitutes a "vexatious litigant" under Section 391. The California Supreme Court should take it up and resolve the split. In the meantime, we should expect -- and lawyers would be wise to file -- a substantially higher number of Section 391.1 motions.