In August 2023, our case brief addressed the panel decision of Marva Smith v. Solar Turbines Inc., involving a vexatious applicant.

Patrick R. Moreno

In Smith, the applicant had previously been found to be a vexatious litigant, and the decision was the Workers' Compensation Appeals Board’s pre-filing review of the applicant’s conditional filing to determine whether the applicant’s petition for reconsideration to an order dismissing an application for adjudication of claim was timely filed. 

Recall that the consequence of being declared a vexatious litigant per 8 CCR § 10430(d) is that a presiding workers’ compensation judge or the board may enter a pre-filing order, which prohibits the vexatious litigant from filing in pro per any application, declaration of readiness or petition without first obtaining leave of the presiding workers’ compensation judge or board.

Rachel Fortner

Procedurally, then, requests by the vexatious litigant, per Subsection (e), are conditionally filed pending review by the presiding judge or the board to determine if Subsection (a) has been violated. If the request does not violate Subsection (a), it will be deemed to have been properly filed. 

In Nicholson v. Los Angeles Unified School District (2024), we see the WCAB consider the question of whether an applicant in pro per had been properly designated a vexatious litigant.

In Nicholson, the applicant in pro per filed a petition for removal regarding a July 2021 findings and order issued by a workers' compensation judge. The WCJ found the applicant to be a vexatious litigant pursuant to 8 CCR § 10430(a) following the defendant’s petition to declare the applicant vexatious where the applicant filed multiple demands for production and inspection of records, subpoenas duces tecum, motions to compel and other discovery devices, which resulted in the case being set for hearing approximately 20 times since 2013. Throughout, the applicant failed to adequately define and limit the scope and breadth of her discovery requests despite being given every opportunity and a wide latitude by the WCJ to do so. 

The applicant contended that the WCJ erred in declaring her a vexatious litigant. Such litigants are summarized by the WCAB as “a growing number of self-represented parties and lien claimants [who] repeatedly file petitions or other papers with the WCAB that not only fail to comply with the requirements set forth in the Labor Code and rules, but that have no effective purpose in moving their cases forward. Recognizing the impediment to expeditious justice and the burden to the WCAB and other parties presented by those repetitive, meritless and ineffectual filings, the Appeals Board proposed a rule for declaring vexatious litigants in workers' compensation proceedings.” 

The WCJ pointed out that the present situation is precisely what the rule was designed to address: when justice has been impeded and the parties and WCAB have been overburdened. The WCJ also pointed to the fact that the applicant repeatedly denied receipt of documents previously served upon her by the defendants, even when the defendant was ordered to serve her with proof of services of the documents. Yet, the applicant would again make requests for the same documentation.

The WCJ also pointed to the fact that after the matter was assigned for trial, 10 hearings were held on the issue of the applicant’s alleged unresolved discovery issues, but the applicant was never able to define exactly what discovery matters had not been addressed.

In the minutes of the hearing, the WCJ stated, “[T]hese are noted as the most glaring examples of applicant’s obstruction of the judicial process.” As a result, the WCAB affirmed the order, and the applicant was found to be a vexatious litigant.  

Patrick R. Moreno is an associate attorney in the Bakersfield office of defense firm Mullen & Filippi. Rachel Fortner is an associate attorney in the firm's Santa Rosa office. This case brief is republished with permission.