Opinion
G060818
09-14-2023
In re the Marriage of LEONARD M. and ALISA GICHON MALO. v. ALISA GICHON MALO, Appellant. LEONARD M. MALO, Respondent,
Beatrice L. Snider, John L. Romaker and Alexandria M. Jones for Appellant. Law Offices of Marjorie G. Fuller and Marjorie G. Fuller; Seastrom Tuttle &Murphy and Brian G. Seastrom for Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 16D001973, Michael J. Naughton, Retired Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded with directions.
Beatrice L. Snider, John L. Romaker and Alexandria M. Jones for Appellant.
Law Offices of Marjorie G. Fuller and Marjorie G. Fuller; Seastrom Tuttle &Murphy and Brian G. Seastrom for Respondent.
OPINION
SANCHEZ, J.
This appeal arises from an order in a marital dissolution proceeding declaring appellant Alisa Gichon Malo to be a vexatious litigant and entering a prefiling order prohibiting her from filing any future litigation in propria persona (pro. per.) without leave of court. The principal issue in this appeal concerns the adequacy of the notice of the motion. Alisa appeared at an unrelated hearing, at the conclusion of which the court abruptly issued an oral order to show cause (OSC) as to why Alisa should not be declared a vexatious litigant. She was never served with written notice of the motion. Of the five subdivisions setting forth different definitions of "vexatious litigant" in Code of Civil Procedure section 391, Alisa was not told which was at issue. She was given no notice of the relief sought (posting of security or a prefiling order). The litigation had been ongoing for five years at that point, and she was given no notice of what specific actions or pleadings prompted the OSC, and thus had no ability to prepare a specific response. Her newly retained counsel asked for a continuance to review the file, which the court denied. Four days before the hearing, respondent Leonard M. Malo filed a brief that, with exhibits, totaled 609 pages. Alisa managed to file a pro. per. response one day before the hearing.
All statutory references are to the Code of Civil Procedure unless stated otherwise.
We hold that the notice given to Alisa violated her right to due process. A prefiling order represents a significant burden on a fundamental constitutional right: the right to petition the government. While such orders pass constitutional muster if supported by an adequate showing, the process of burdening such a fundamental right must comport with principles of due process. The notice given here was simply inadequate.
Leonard's primary argument is that any error was harmless because Alisa filed a response and appeared at the hearing. However, she clearly suffered prejudice in her ability to prepare an adequate defense. Alisa's last-minute brief was prepared by her, not counsel, and though her counsel appeared at the hearing on Alisa's behalf, he was clearly inadequately prepared to discuss the details of the motion. The fact that Alisa managed to put up a fight at all should not count against her. Accordingly, the error was prejudicial.
FACTS
Because this court has described the underlying factual record in two previous appeals and because this appeal concerns only the vexatious litigant proceeding, we will not discuss the underlying facts in detail and will instead refer the reader to our previous opinions. (See Malo v. Malo (June 8, 2020, G055947) [nonpub. opn.] (Malo I); Malo v. Malo (Oct. 25, 2022, G058742) [nonpub. opn.] (Malo II).)
The parties were married in 2006 and separated in 2016, just shy of 10 years (the marriage was ultimately not deemed long duration). The parties have one child together. The proceeding, which was filed in March 2016, has generally been contentious, with coparenting being a struggle at times. Allegations of domestic violence have flown in both directions. In 2017, in a trial on the issues of custody and a domestic violence restraining order (DVRO) sought by Alisa, the court found Leonard had committed domestic violence in the form of verbal and emotional abuse, but that since separation, Leonard had not committed any further abuse. Accordingly, the court awarded joint physical and legal custody of the child and denied Alisa's request for a DVRO. (Malo I, supra, G055947.) The parties would go on to litigate, and then relitigate, issues of spousal and child support. (Malo II, supra, G058742.)
The proceedings that gave rise to the present appeal began on August 12, 2021, while a previous appeal was pending. The parties appeared before a judge who was new to the case on a request for order (RFO) to change holiday and communication orders included in the parties' parenting plan. After some back and forth between Alisa, who appeared in pro. per., and Leonard's attorney, the court trailed the matter to August 20, 2021. The court then stated, without prompting, "Now, in the meantime, you [Alisa] are ordered to show cause on the 27th of August 2021 at 8:30 in this department as to why I shouldn't declare you to be a vexatious litigant. [¶] Have a nice day." Alisa did not waive notice. So far as the record indicates, no notice was served on her.
On August 20, 2021, the parties appeared on the continued RFO; this time Alisa was represented by counsel, who had been retained the previous day. Alisa's new counsel requested a continuance on the RFO regarding changes to the parenting plan, as he had not had a chance to review the whole file. The court granted that continuance, but then, again without prompting, ordered both sides to prepare updated income and expense declarations "because we are going to talk about [Family Code section] 271 sanctions and attorney's fees at the next hearing. Both sides are ordered to show cause why [Family Code section] 271 sanctions ought not be and attorney's fees ought not be part and parcel of the next hearing." Alisa's attorney then asked the court to take the vexatious litigant OSC off calendar, arguing that any sanctions awarded under Family Code section 271 would render a vexatious litigant declaration unnecessary. The court denied that request. Alisa's attorney then asked the court to continue the vexatious litigant OSC hearing to the same day as the hearing on the RFO regarding parenting plan and the OSC regarding Family Code section 271 sanctions. He stated, "My client is going to be out of town that week. I'm also not available." The court responded, "She needs to show up on [August] 27th. I'm not changing that." Alisa's attorney persisted: "My understanding is she [is] going out of town with the party's son next week, and I have a planned trip. I believe that [Leonard] is aware of that, and the court just sprung this on [us] last week in terms of the hearing date." The court responded, "All I gotta say is I'm not changing the date. Be there or be square." The hearing date for the vexatious litigant OSC thus remained August 27, 2021. The court then set the date for the other two matters for September 24, 2021.
On August 23, 2021, four days before the vexatious litigant hearing, Leonard's counsel filed a 14-page brief with nearly 600 pages of exhibits attached. The exhibits were attached to the brief with no declaration to authenticate them. Leonard discussed 10 separate RFOs to support his argument that Alisa is a vexatious litigant. He also contended that four different appeals demonstrated vexatiousness (though two were pending at the time, and one was a petition for review by the California Supreme Court). Finally, he contended that three subpoenas-one to the child's therapist, one to Leonard's lawyer, and one to the minor's religious temple-demonstrated vexatiousness. However, none of those subpoenas were attached, and there was no declaration to substantiate them.
On August 25, 2021, Alisa filed her response in pro. per., objecting to the "sudden and insufficiently noticed OSC." She also objected to the denial of her counsel's request for a continuance.
At the hearing, Alisa was represented by counsel. The court had not read Alisa's opposition and chided her: "Okay. I'll tell you what; I'm going to read your opposition which was not timely filed. So this is consistent with her track record." After a break, the hearing resumed. Alisa's counsel complained that he was "at somewhat of a disadvantage, [as] I have been on this case a week, and the court wanted to address this."
The court granted the motion, describing Alisa as a "poster child" vexatious litigant. The court concluded she satisfied the definition of vexatious litigant under section 391, subdivisions (b)(2) and (b)(3). The court expressed the view that Alisa could be found vexatious even for filings where she was not self-represented. The court did not specify exactly which filings formed the basis of its ruling, but it mentioned a RFO regarding contempt that Alisa filed and later took off calendar, an appeal that was affirmed, and the three subpoenas Leonard mentioned in his brief. There is no record of the court taking judicial notice of any documents, though the minute order stated that "[t]he court has looked at the court record and notes the post-judgment filings by [Alisa]
In Pro Per." The court issued a prefiling order under section 391.7, stating, "[You're] ordered . . . to do a pre filing request before any pleadings are addressed. In respect to this litigation or any new litigation in this court in pro per without first obtaining lea[ve] of the presiding justice or presiding judge of the court where the litigation is proposed to be filed." Alisa did not request a statement of decision. She timely appealed.
DISCUSSION
Alisa contends the court's procedure for declaring her a vexatious litigant was procedurally deficient in two ways: first, she contends a court is not authorized to initiate a vexatious litigant motion in the first instance; second, she contends the notice she was given violated principles of due process. We disagree with her first contention, but we agree with the latter contention.
Legal principles
Section 391, subdivision (b), provides five alternative definitions of a vexatious litigant, only two of which are relevant here. "'Vexatious litigant' means a person who does any of the following: [¶] . . . [¶]
"(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.
"(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay."
A motion to declare someone a vexatious litigant can be brought under either of two statutes, depending on the nature of the relief sought. Under section 391.1, subdivision (a), "a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that they will prevail in the litigation against the moving defendant."
Under section 391.7, a motion may be brought to impose a prefiling order. "(a) In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court. [¶] (b) The presiding justice or presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding justice or presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3." "(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." "(f) The clerk of the court shall provide the Judicial Council a copy of any prefiling orders issued pursuant to subdivision (a). The Judicial Council shall maintain a record of vexatious litigants subject to those prefiling orders and shall annually disseminate a list of those persons to the clerks of the courts of this state." Under section 391.8, subdivision (c), a vexatious litigant may file an application to remove him or herself from the list "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."
The Court Had Jurisdiction
Alisa's first contention is that a court lacks jurisdiction to proceed under section 391.7 (prefiling order) unless it has first been determined that a party is a vexatious litigant under section 391.1 (furnish security). Her argument has two premises. First, section 391.1 says "a defendant" can initiate a motion, in contrast to section 391.7, which permits the court to proceed on its own motion. Second, section 391.7 is "[i]n addition to any other relief provided in this title," which Alisa interprets to mean a prefiling order can only be entered after a party has been declared a vexatious litigant under section 391.1. Since there had been no previous vexatious litigant determination under section 391.1, and since the court is not permitted to initiate a motion under section 391.1, Alisa concludes the court was without jurisdiction to proceed under section 391.7. We disagree.
"We begin as always with the statute's actual words, the 'most reliable indicator' of legislative intent, 'assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning governs.'" (Even Zohar Construction &Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 837-838.)
Section 391.7 explicitly permits a court to enter a prefiling order on its own motion. The question comes down to whether this remedy is only available if a party has already been declared a vexatious litigant under section 391.1. We conclude a motion under section 391.1 is not a prerequisite to a motion under section 391.7. We interpret the phrase "[i]n addition to any other relief provided in this title" to mean the remedy under section 391.7 can supplement an order under section 391.1, not that it has to. That is simply the common usage of that language. If the Legislature had intended the more restrictive meaning Alisa suggests, we would expect more conditional language, such as, "[a]fter the court has entered an order under section 391.1" or, "[i]f a party has been declared a vexatious litigant pursuant to section 391.1 ...." That sort of language would suggest an order under section 391.1 is a true prerequisite to a motion under section 391.7, but no such language appears.
Moreover, our interpretation better implements the policy behind section 391.7. The purpose of the vexatious litigant statute is to protect not only defendants, but also the courts that bear the financial burden of serial litigation. (Morton v. Wagner (2007) 156 Cal.App.4th 963, 970-971 ["The purpose of [the vexatious litigant statute] is to address the problem created by the persistent and obsessive litigant who constantly has pending a number of groundless actions and whose conduct causes serious financial results to the unfortunate objects of his or her attacks and places an unreasonable burden on the courts"].) In some instances, a vexatious litigant files frivolous lawsuits against many different defendants. The individual defendants may not have information about the other lawsuits and thus may have no impetus to file a motion for security under section 391.1. The court, however, does have that information. If we were to adopt Alisa's interpretation, the court would have no ability to mitigate the financial burden of vexatious litigation on its own, which would undercut the Legislature's purpose. Ultimately, the different remedies-furnishing security versus a prefiling order-serve different purposes. An order to furnish security protects the opposing party in a particular lawsuit. A prefiling order protects the courts and the public more broadly. Given these different functions, there is no sound reason why an order to furnish security should be a prerequisite to a prefiling order. Accordingly, we decline to adopt Alisa's interpretation.
Although we are not aware of any court to explicitly address the issue Alisa raises here, the court in Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 225 (Bravo), assumed that a party may resort directly to section 391.7 without first obtaining an order under section 391.1: "Where a plaintiff has already been declared vexatious and previously received the benefit of a noticed motion and oral hearing, a defendant moving under section 391.7 need not again establish the plaintiff's status. However, where, as here, the plaintiff has not been declared vexatious in a state court and the defendant moves for a prefiling order, the defendant must establish the plaintiff is vexatious in this forum." (Bravo, supra, 99 Cal.App.4th at p. 225.)
Alisa Was Not Afforded Proper Notice
Alisa's second contention is that she was given inadequate notice of the vexatious litigant motion. We agree.
Section 391.1, subdivision (a), permits a defendant to move for a vexatious litigant finding "upon notice and [a] hearing ...." Although section 391.7 contains no such language, in a well-reasoned opinion the court in Bravo held that the same requirements apply to section 391.7: "Where a defendant seeks to require a plaintiff to post security, the defendant must establish the plaintiff's status as a vexatious litigant and the litigation's lack of merit. [Citations.] Because the imposition of this requirement limits access to the courts, the Legislature has provided that, before a plaintiff may be declared vexatious, he or she is entitled to a noticed motion, and a hearing which includes the right to oral argument and the presentation of evidence. [Citations] [¶] Section 391.7's prefiling order likewise impacts a plaintiff's access to the courts. Because a plaintiff subject to a prefiling order may be required to post security even if there is no finding the matter lacks merit, this section can impose burdens even more onerous than those provided by section 391.1. Thus, if declaring a litigant vexatious under section 391.1 statutorily requires an oral hearing, so must a declaration of the same under section 391.7 for a prefiling order. To hold otherwise would render the statutory scheme internally inconsistent. There is no difference in determining the litigant's status in the section 391.1 situation (pertaining to security) and in the section 391.7 situation (pertaining to a prefiling order). In both, the court determines vexatiousness under the same statutory definitions, with the same purpose of curbing abuse of the court system.
Further, the significant consequences that result from the outcome of a motion to declare a litigant vexatious support that a party is entitled to an oral hearing, regardless of whether the defendant is seeking security or a prefiling order." (Bravo, 99 Cal.App.4th at pp. 224-225.)
Section 391.1 states only that the motion must be a noticed motion; it does not prescribe any particular form of notice. Accordingly, the default rules of notice apply. Section 1010 imposes four requirements on a notice of motion: "[1] Notices must be in writing, and the notice of a motion . . . [2] must state when, [3] and the grounds upon which it will be made, and [4] the papers, if any, upon which it is to be based." Pursuant to section 1005, subdivision (b), the responding party is entitled to 16 court days of notice, unless the court shortens time.
Here, the sole notice to Alisa was the court's abrupt oral statement at an unrelated hearing: "Now, in the meantime, you are ordered to show cause on the 27th of August 2021 at 8:30 in this department as to why I shouldn't declare you to be a vexatious litigant. [¶] Have a nice day." Although this notice satisfied the when requirement under section 1010, it failed the remaining three requirements. It was not in writing. It failed to set forth the grounds on which the motion was made (i.e., which definition of vexatious litigant the court would rely on) and the relief sought (posting of security versus a prefiling order). And it failed to identify any of the papers (i.e., pleadings) on which the motion was based. Alisa was never served a written notice. (See In re Marriage of Lugo (1985) 170 Cal.App.3d 427, 434 ["Where written notice is required, oral notice will not suffice"].) This notice was plainly deficient.
"Section 1010's requirement 'is for the benefit of the party upon whom the notice is served,' to make him or her aware of the issues to be raised in the motion. [Citations.] As stated in Kinda [v. Carpenter (2016) 247 Cal.App.4th 1268, 1277]: 'The purpose of the notice requirements "is to cause the moving party to 'sufficiently define the issues for the information and attention of the adverse party and the court.'"'" (Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 137-138 (Golf &Tennis).)
Golf & Tennis presents a factual scenario analogous to what we face here. There, a party filed a motion to compel further responses to interrogatories, "but [the notice of motion] did not identify the specific interrogatories, leaving both [the responding party] and the court with the potential impression that all interrogatories were at issue. It did not cite any statutory authority for the motion, or attempt to state what, if anything, was deficient about [the responding party's] responses to the interrogatories. It also failed to identify the papers upon which it was to be based. Even if it was sufficient for petitioner to file a notice of motion without any supporting documentation with it, the notice itself simply did not 'give notice' as required by section . . . 1010 or common English usage." (Golf &Tennis, supra, 84 Cal.App.5th at p. 138, fn. omitted.) The same is true here.
In contrast to the court's notice here, in two published decisions we find examples of proper notice. The trial court in Fink v. Shemtov (2010) 180 Cal.App.4th 1160 issued a written order to show cause that identified the specific subdivisions of section 391, subdivision (b), under which the court would consider deeming the responding party a vexatious litigant. The written notice identified 15 specific litigations that the motion was based on. And it identified the specific remedy the court was considering: a prefiling order. (Fink, at p. 1165.) Similarly, in In re Luckett (1991) 232 Cal.App.3d 107, 108, this court issued an order to show cause that identified 34 different appellate matters that appeared to be frivolous, and we identified the specific subdivision of section 391, subdivision (b), that we were considering in deeming the responding party a vexatious litigant. We also identified the specific remedy we were considering: a prefiling order. As these cases illustrate, giving a responding party proper written notice is not overly burdensome on the courts.
Compounding the effect of the deficient notice, the trial court set the hearing on a date that did not provide 16 court days of notice under section 1005 (it provided 11). The court did not recite any reasons, and the record reveals no good cause for doing so. There was nothing particularly urgent about this motion. The proceeding had been ongoing for five years. There were two matters on calendar at the time, but one was ultimately taken off calendar and the other continued for over a month. Then, within a week of learning she would have to defend against a vexatious litigant motion, Alisa hired counsel. Counsel requested a continuance. Given the lack of adequate notice, counsel was in the unenviable position of having to prepare a defense to every pleading for the past five years. The court denied the continuance, again without citing any reasons. "While it is true that a trial judge must have control of the courtroom and its calendar and must have discretion to deny a request for a continuance when there is no good cause for granting one, it is equally true that, absent circumstances which are not present in this case, a request for a continuance supported by a showing of good cause usually ought to be granted." (Estate of Meeker (1993) 13 Cal.App.4th 1099, 1105.) Here, the record reveals good cause for the continuance, and no good cause for denying the continuance, which was thus an abuse of discretion.
Ultimately, Alisa was given no notice of the grounds of the motion until Leonard filed his brief four days before the hearing. Four days is not enough. In Noergaard v. Noergaard (2020) 57 Cal.App.5th 841, 856, this court held that a notice of motion for attorney fees served four days before the hearing violated the responding party's right to due process. How much more, then, does a notice of motion to burden Alisa's constitutional right to petition the government violate her right to due process when served four days before the hearing? In upholding the constitutionality of the vexatious litigant statute, the court in Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43 (Wolfgram) started "'with the premise that the rights to assemble peaceably and to petition for a redress of grievances are among the most precious of the liberties safeguarded by the Bill of Rights.'" (Id. at p. 55.) The Wolfgram court ultimately concluded the statute "does not impermissibly 'chill' litigants," but that was due in significant part to the fact that "sufficient safeguards are contained within the statute." (Id. at p. 50.) One of those safeguards is the requirement of a noticed motion and an opportunity to be heard. Alisa did not receive that, and thus her right to due process was violated.
Leonard does not seriously contest Alisa was given proper notice in this case. Indeed, he acknowledges Alisa's recitation of the statutory procedures required in noticing a motion is "generally correct." Instead, his response is Alisa waived the issue and that any error was not prejudicial. We disagree on both fronts.
Alisa Did Not Waive the Issue
Leonard first contends Alisa waived any objection to the adequacy of the notice by failing to raise an objection below. The record does not bear that contention out. With regard to the timing of the motion, Alisa's counsel requested a continuance, commenting that "the court just sprung this on [us] last week in terms of the hearing date." We interpret that as an objection to the timing. With regard to the content of the notice, Alisa's pro. per. brief decried the "sudden and insufficiently noticed OSC," which we interpret as an objection to the sufficiency of the notice.
Leonard's second waiver argument is Alisa waived any defect in notice by filing a responsive brief and appearing at the hearing with counsel. It is true that "[a] party who appears at the hearing on a motion and contests the motion on the merits without objecting to a defect or irregularity in the notice of motion ordinarily is deemed to waive the defect or irregularity, including the failure to serve a notice of motion the prescribed number of days before the hearing." (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 342.) However, this rule does not apply here because, as we noted above, Alisa did object. (Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 322 ["'A party's participation in a hearing after the party's objection to the hearing as unauthorized does not constitute waiver by acquiescence'"].) Moreover, the rule stated in Arambula applies where "any defect in the notice did not prejudice the party's preparation for the hearing and opportunity to be heard." (Arambula at p. 343.) "The principal purpose of the requirement to file and serve a notice of motion a specified number of days before the hearing [citation] is to provide the opposing party adequate time to prepare an opposition. That purpose is served if the party appears at the hearing, opposes the motion on the merits, and was not prejudiced in preparing an opposition by the untimely notice." (Ibid., italics added.) We discuss prejudice below and conclude Alisa was, in fact, prejudiced by the inadequate and untimely notice.
Alisa Was Prejudiced
Finally, Leonard contends any error was not prejudicial, arguing the notice Alisa received was enough to prompt her to file a brief and appear at the hearing. He also contends substantial evidence supports a finding Alisa was a vexatious litigant.
But the question at this stage is not whether substantial evidence supports the ruling; rather, it is whether, ""'after an examination of the entire cause, including the evidence," [we are] of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.] 'We have made clear that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.'" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
The prejudice here was, though Alisa filed a brief, she filed it in pro. per., even though she was represented by counsel at the time. This was presumably due to the time restraints her counsel had mentioned in requesting a continuance, as well as the mere four-day time period in which to respond to Leonard's brief. And while counsel appeared at the hearing, it is clear from the transcript that he did not know the file very well and was largely relying on Alisa's pro. per. brief.
There is another reason why a substantial evidence inquiry is inapposite at this stage. On remand, the court will have discretion in deciding any further motions to declare Alisa a vexatious litigant. (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1498-1499.) We recognize Leonard has a colorable argument Alisa meets the definition of a vexatious litigant in that she has attempted to relitigate certain issues that were already determined (§ 391, subd. (b)(2))-such as spousal support and renaming the minor child. And some of her filings have arguably been frivolous (§ 391, subd. (b)(3)). However, because it is a discretionary call, a court would not be required to declare her a vexatious litigant, and there are counter arguments to Leonard's showing. Much of the litigation Leonard points to either occurred in 2018 or was an appeal from that time. Arguably, a prefiling order may not be an appropriate remedy for conduct that occurred several years ago. Additionally, some of the filings Leonard relies on resulted in rulings that were partially in Alisa's favor or were instances where she was represented by counsel. Moreover, it is not as though Alisa is going around the state filing an oppressive number of lawsuits. Her conduct, if inappropriate at all, has been confined to this litigation, and there are arguably more tailored remedies a court might consider short of a prefiling order (e.g., furnishing security, or attorney fee sanctions under Fam. Code, § 271). In stating these arguments, we express no opinion as to how they should be resolved. We state them simply to make the point that, even if there is substantial evidence to declare Alisa a vexatious litigant, there is still a reasonable chance she could obtain a better result on remand. And a properly noticed motion with adequate time to prepare will give Alisa's counsel the opportunity to develop such arguments. Accordingly, the error was prejudicial.
DISPOSITION
The order declaring Alisa a vexatious litigant and entering a prefiling order is reversed. If Alisa has been added to the Judicial Council's list of vexatious litigants pursuant to section 391.7, the trial court is ordered to remove her name from said list. Alisa shall recover costs on appeal.
WE CONCUR: GOETHALS, ACTING P. J., MOTOIKE, J.