section 391(b) final determination of litigation in California

2024(See §§ 391.7, subds. (a), (b), 391, subd. (a); see also John v. Superior Court (2016) 63 Cal.4th 91, 100 [appeals and writs filed by vexatious litigants are subject to the prefiling requirement if the vexatious litigant was the party who initiated the action below].) Robben argues that a petition for review does not “count” as litigation under section 391 and the broadened definition of litigation in McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211 , has led to absurd results.

2014Each writ petition and appeal constitutes ‘litigation.’”]; McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216, 1219 (McColm) [“[m]anifestly, ‘any civil action or proceeding’ includes any appeal or writ proceeding”; “‘[l]itigation’ for purposes of vexatious litigant requirements . . . includes proceedings initiated in the Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or other criminal matters”]; see also Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171-1172 [although a writ petition generally qualifies as a litigation within the meaning of § 391

2023This can be true notwithstanding its later treatment by the plaintiff or the court, because once an action is filed it “is nevertheless a burden on the target of the litigation and the judicial system.” (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779 [lawsuit counts as litigation even if plaintiff voluntarily dismisses the action, with or without prejudice]; cf. Garcia v. Lacey (2014) 231 Cal.App.4th 402, 412 , fn. omitted [matters did not qualify as litigations within the meaning of section 391 where “no complaint was ever filed and, therefore, no action or proceeding was ev

2021While unsuccessful appellate writs may qualify as “litigations” for vexatious litigant purposes (In re Kinney, supra, 201 Cal.App.4th at p. 958 ; see also Lacey, supra, 231 Cal.App.4th at p. 406 ), we conclude the record does not support the conclusion that the writ petitions in this case qualify as unmeritorious litigations within the meaning of section 391, subdivision (b)(1).

2026(Fink, at pp. 1172-1173.) The court explained that if a writ petition challenges a pretrial issue that could also be reviewed from a later judgment, the appellate court “ ‘ “does not 17 take jurisdiction over the case” ’ ” and its summary denial of the petition “cannot constitute a final determination of litigation within the meaning of section 391, subdivision (b)(1).” (Id. at p. 1172.) On the other hand, where a writ petition is the “exclusive means of obtaining appellate review,” an appellate court’s summary denial “for lack of substantive merit or for procedural defect . . . fulfills its d

2026Our colleagues in Division Three recently examined this question and said this: “We cannot find anything in [John] holding a defendant’s appeal cannot constitute ‘litigation’ under section 391[, subdivision] (b)(1). [Appellant’s] assertion otherwise is unfounded. [¶] Nor can we find anything in the text of section 391[, subdivision] (b)(1) or in case law—and [appellant] does not draw our attention to anything—indicating a defendant’s appeal does not constitute ‘litigation’ for purposes of section 391[, subdivision] (b)(1).” (In re Marriage of Kouvabina & Veltman, supra, 115 Cal.App.5th at p. 3

2022(See Fink, supra, 180 Cal.App.4th at pp. 1173-1174 [appeals dismissed as untimely qualified as final determination of litigation under § 391, subd. (b)(1)].) Benjamin’s three unsuccessful appeals plus his three unsuccessful writ petitions on judicial disqualification yield a total of six qualifying adverse determinations against him under section 391, subdivision (b)(1).

2014Each writ petition and appeal constitutes ‘litigation.’”]; McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216, 1219 (McColm) [“[m]anifestly, ‘any civil action or proceeding’ includes any appeal or writ proceeding”; “‘[l]itigation’ for purposes of vexatious litigant requirements . . . includes proceedings initiated in the Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or other criminal matters”]; see also Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171-1172 [although a writ petition generally qualifies as a litigation within the meaning of § 391

2026(Fink, supra, 180 Cal.App.4th at p. 1172 .) The Fink court distinguished “ ‘writ petitions challenging pretrial superior court rulings that could also be reviewed on appeal from the judgment ultimately entered in the action’ from ‘situations in which a writ petition was the only authorized mode of appellate review.’ ” (Ibid., quoting Leone v. Medical Board (2000) 22 Cal.4th 660, 670 .) The court held that only a summary denial of the latter type of writ petition would constitute a qualifying litigation.

2013Based on the analysis by the Supreme Court in Leone v. Medical Board (2000) 22 Cal.4th 660—a case holding the judicial power of the appellate courts is not unconstitutionally impaired when the Legislature limits review of judgments in administrative mandate actions in cases of physician discipline to extraordinary writs— Fink distinguished “writ petitions challenging pretrial superior court rulings that could also be reviewed on appeal from the judgment ultimately entered in the action” from “situations in which a writ petition was the only authorized mode of appellate review.” (Fink, at p. 11

2026Our colleagues in Division Three recently examined this question and said this: “We cannot find anything in [John] holding a defendant’s appeal cannot constitute ‘litigation’ under section 391[, subdivision] (b)(1). [Appellant’s] assertion otherwise is unfounded. [¶] Nor can we find anything in the text of section 391[, subdivision] (b)(1) or in case law—and [appellant] does not draw our attention to anything—indicating a defendant’s appeal does not constitute ‘litigation’ for purposes of section 391[, subdivision] (b)(1).” (In re Marriage of Kouvabina & Veltman, supra, 115 Cal.App.5th at p. 3

2024(See §§ 391.7, subds. (a), (b), 391, subd. (a); see also John v. Superior Court (2016) 63 Cal.4th 91, 100 [appeals and writs filed by vexatious litigants are subject to the prefiling requirement if the vexatious litigant was the party who initiated the action below].) Robben argues that a petition for review does not “count” as litigation under section 391 and the broadened definition of litigation in McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211 , has led to absurd results.

2026When a petitioner seeks a writ of mandate in the Court of Appeal and the court finds the petitioner has no other plain, speedy, and adequate remedy in the ordinary course of law, the court “must” issue the writ if it has merit. (§ 1086; see Eshagian v. Cepeda (2025) 112 Cal.App.5th 433 , 453 [“ ‘When an extraordinary writ proceeding is the only avenue of appellate review, a reviewing court’s discretion is quite restricted’ ”].) In contrast, the Supreme Court has broad discretion to grant or deny a petition for review (Cal. Rules of Court, rule 8.500(b) [“The Supreme Court may order review of a

2026When a petitioner seeks a writ of mandate in the Court of Appeal and the court finds the petitioner has no other plain, speedy, and adequate remedy in the ordinary course of law, the court “must” issue the writ if it has merit. (§ 1086; see Eshagian v. Cepeda (2025) 112 Cal.App.5th 433 , 453 [“ ‘When an extraordinary writ proceeding is the only avenue of appellate review, a reviewing court’s discretion is quite restricted’ ”].) In contrast, the Supreme Court has broad discretion to grant or deny a petition for review (Cal. Rules of Court, rule 8.500(b) [“The Supreme Court may order review of a

2026(Fink, at pp. 1172-1173.) The court explained that if a writ petition challenges a pretrial issue that could also be reviewed from a later judgment, the appellate court “ ‘ “does not 17 take jurisdiction over the case” ’ ” and its summary denial of the petition “cannot constitute a final determination of litigation within the meaning of section 391, subdivision (b)(1).” (Id. at p. 1172.) On the other hand, where a writ petition is the “exclusive means of obtaining appellate review,” an appellate court’s summary denial “for lack of substantive merit or for procedural defect . . . fulfills its d

2026(Fink, at pp. 1172-1173.) The court explained that if a writ petition challenges a pretrial issue that could also be reviewed from a later judgment, the appellate court “ ‘ “does not 17 take jurisdiction over the case” ’ ” and its summary denial of the petition “cannot constitute a final determination of litigation within the meaning of section 391, subdivision (b)(1).” (Id. at p. 1172.) On the other hand, where a writ petition is the “exclusive means of obtaining appellate review,” an appellate court’s summary denial “for lack of substantive merit or for procedural defect . . . fulfills its d

2023This can be true notwithstanding its later treatment by the plaintiff or the court, because once an action is filed it “is nevertheless a burden on the target of the litigation and the judicial system.” (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779 [lawsuit counts as litigation even if plaintiff voluntarily dismisses the action, with or without prejudice]; cf. Garcia v. Lacey (2014) 231 Cal.App.4th 402, 412 , fn. omitted [matters did not qualify as litigations within the meaning of section 391 where “no complaint was ever filed and, therefore, no action or proceeding was ev

2010In Leone v. Medical Board (2000) 22 Cal.4th 660, 669 [ 94 Cal.Rptr.2d 61 , 995 P.2d 191 ], the California Supreme Court explained, “a summary denial of a writ petition on a pretrial issue does not establish the law of the case.” The Supreme Court distinguished “writ petitions challenging pretrial superior court rulings that could also be reviewed on appeal from the judgment ultimately entered in the action” from “situations in which a writ petition was the only authorized mode of appellate review.” (Id. at p. 670.) As to the former type of writ petition, quoting Kowis v. Howard (1992) 3 Cal.4t

2010In Leone v. Medical Board (2000) 22 Cal.4th 660, 669 [ 94 Cal.Rptr.2d 61 , 995 P.2d 191 ], the California Supreme Court explained, “a summary denial of a writ petition on a pretrial issue does not establish the law of the case.” The Supreme Court distinguished “writ petitions challenging pretrial superior court rulings that could also be reviewed on appeal from the judgment ultimately entered in the action” from “situations in which a writ petition was the only authorized mode of appellate review.” (Id. at p. 670.) As to the former type of writ petition, quoting Kowis v. Howard (1992) 3 Cal.4t