The California Court of Appeals held that a lower court improperly determined that a prisoner was a vexatious litigant, under California law. When an In Forma Pauperis (IFP) application is denied, the action is never commenced and does not count under California’s vexatious litigant law.

On October 31, 2011, California prisoner Guillermo Garcia brought a state court negligence and intentional tort action against several prison officials. He alleged, inter alia, that Defendants confiscated and damaged his personal property.

Defendants moved to declare Garcia a vexatious litigant under California law, based on nine pro se civil actions that Defendant claimed he had commenced and lost in the preceding seven years.

The trial court agreed, declared Garcia a vexatious litigant under California law, finding that he had filed and lost at least five actions in the preceding seven years, as required by Cal Civ. Pro. § 391(b) (1).

The Court of Appeals reversed, observing “that unless or until an action ... has been commenced, it does not qualify as ‘litigation’ for purposes of the vexatious litigation law.” In five of the nine cases that Defendants sought judicial notice of, “The IFP applications were denied and the complaints were never filed.” Therefore, those actions were never commenced and they did not qualify as litigations under California’s vexatious litigation law.

So understood, Garcia had filed only four qualifying actions in the preceding seven years, and the trial court erroneously concluded that he was a vexatious litigant under California law. See: Garcia v. Lacey, (2014) 231 Cal. App. 4th 402, 407.

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