How Vague is “Frivolous”? – Part 2

[First published Mar 25, 2014 – republished Dec 8, 2014 after 466 views]

Under sec. 391(b)(3) of California’s so-called “Vexatious Litigant” statute (California Civil Procedure Code Sec.391 et seq – “VLS”) a pro se litigant may be punished for engaging in what is described therein as “tactics that are frivolous”. A previous blog post, How Vague is “Frivolous” – Part 1, described how a well-meaning pre-trial “inquisitorial motion” became the basis, inter alia, for an order declaring a layman, in propria persona, to be a “vexatious litigant” under Sec. 391(b)(3). The inquisitorial motion was intended to reduce all parties’ expenses – the very opposite of “harassment” as contemplated by the VLS. In that case, the stigmatization of the petitioner as a “vexatious litigant” exemplifies abuse of the VLS. The VLS is susceptible to abuse because it is inherently vague and indefinite. A civil statute which is too indefinite to enforce is invalid. See Seaboard Acc.Corp. v. Shay (1931) 214 Cal.361.

The question here is whether CCP sec. 391(b)(3) is constitutionally void for vagueness – particularly because it is directed to the non-lawyer, someone who has no opportunity to know the difference between litigation tactics that a judge may consider “frivolous” or “not frivolous”?

Professional philosophers precisely describe “vagueness” as follows:

“There is wide agreement that a term is vague to the extent that it has borderline cases.” (Stanford Encyclopedia of Philosophy, S.v. “Vagueness” at http://plato.stanfor…ries/vagueness/ ).

“To say that a word is vague is to say that there are cases in which there is no definite answer to whether it applies to something. Thus “middle-aged” is vague, for it is not clear whether a person aged 40 or a person aged 59 is middle-aged. Of course there are uncontroversial areas of application and nonapplication. At age 5 or 80 one is clearly not middle-aged, and at age 45 one clearly is. But on either side of the area of clear application there are indefinitely bounded areas of uncertainty. . . . Our inability to say whether a 40-year-old man is middle-aged is not the result of lack of information . . . The indeterminacy is due to an aspect of the meaning of the term rather than to the current state of our knowledge.” (Encyclopedia of Philosophy, Macmillan,1972, s.v.,”Vagueness”).

“In philosophy, the term `vagueness’ is a label for the phenomenon of borderline cases. An expression or concept is vague if and only if it has borderline cases, that is, actual or potential cases in which it neither clearly applies nor clearly fails to apply. For example, a borderline case for the term `tall’ is someone who is neither clearly tall nor clearly not tall. Even when one can see the person in question without difficulty, one cannot decide whether the term `tall’ applies – or perhaps one decides it one way while other speakers equally familiar with English and with an equally good view of the person decide it the other way. . . . . The more prone a term is to such borderline cases, the vaguer it is. To the extent to which a term is not vague, it is precise.” (Timothy Williamson, “Vagueness, Indeterminacy and Social Meaning” (U. of Oxford) online at


The term “frivolous” is inherently vague and subjective.

“Webster’s defines the term ‘frivolous’ to mean ‘of little or no weight or importance.’ Webster’s does not say ‘of little or no weight or importance’ to whom.” (Goldsmith, “Frivolity is in the Eye of the Beholder”, 139 N.J.L.J. 435 (1-30-95, p.23)).

Even among lawyers, trial judges and appellate judges, there is no consensus as to what constitute tactics that are “frivolous”.

Black’s Law Dictionary (6th ed, 1990) defines the word “frivolous” as follows: “Frivolous. Of little weight or importance”. But, obviously, what’s important to one person may be of little importance to another. Black’s goes on to cite a few legal opinions defining the word. But these are nothing compared to the very great number of published opinions attempting to define this word in case law.

The reference set “Words & Phrases” (2004 edition (vol. 17B)) has 42 pages of entries (in small print) attempting to define “frivolous”. These pages are in the main volume. The 2013 pocket part (supplement) has another 27 pages of entries attempting to define the word. And there are 19 additional pages of entries containing the word “frivolous” in a phrase: “frivolous appeal”, “frivolous conduct”, “frivolous reply”, etc. Each entry is intended to present a different understanding of the word’s legal meaning from different published appellate court opinions.


The published appellate cases describe several levels or standards of “frivolousness”: The list below shows only some of these:


An early case describes frivolous pleas as ” . . .’ such as are unimportant, a nonsensical trifling with the dignity of the Court and majesty of the law, on which no serious question of law or fact can arise.’ . . . Gray v. Gidiere et al (1849) 4 Strobhart’s Law Reports 438, 442 (So.Carolina, 1849). An example in this category would be the plaintiff’s “Motion to Kiss My Ass” (containing profane language) discussed in Washington v. Alaimo, 934 F. Supp. 1395 (S.D. Ga. 1996). Other motions from that case include the following: “Motion for Psychoanalysis”, “Motion to Impeach Judge Alaimo” and “Motion to Renounce Citizenship”. Another such definition is fromEtiwan Fertilizer Co. v. Johns 24 S.E.2d 74 (Pleadings which may be rejected as “frivolous”must be such as are impertinent or nonsensical and trifling with the dignity of the court).


Many published opinions require a finding of bad faith on the part of the filer in order for the filing to be considered “frivolous”. Examples: Lesser v. Huntington Harbor Corp. 173 Cal App 3d 922 (fact that action is determined to be “without merit” does not, a fortiori, place it in category of “frivolous”; further determination is necessary to ascertain whether action was brought with improper motive); State v. Laconco, Inc, La.App. 1 Cir., 430 So.2d 1376,1387 (though an appeal may seem untenable, it is not “frivolous” and does not entitle appellee to damages if it is taken with sincerity and not for purposes of delay); Entertainment Partners Group v. Davis, Sup., 590 N.Y.S.2d 979, 982 (“Frivolity” needed to justify award of sanctions, requires determination that action, claim, or defense was commenced, used, or continued in bad faith, solely to delay or prolong resolution of litigation); Mann v. Luke, 68 N.Y.S.2d 313, 317, 272 App.Div. 19. (A ‘pleading” is not “frivolous” unless the allegations are so clearly and incontrovertibly void of significance or futile in point of law as to indicate bad faith on the part of the pleader in alleging such matter, and this must appear upon a mere inspection of the pleading and without the necessity of argument.); Coll v. McCarthy 804 P.2d 881, 888, 72 Haw.20 (1991) (For a claim to be “frivolous” for purposes of an award of attorney fees it must be manifestly and palpably without merit so as to indicate bad faith on pleader’s part such that argument to the court was not required); In re Nomination of Parker, Ind.App. 5 Dist. 580 N.E.2d 1006, 1012 (Defense was not “frivolous” and would not subject defendant to award of attorney fees, where defense was based on interpretation of statute which had not yet been construed by any court, and interpretation advanced was not patently unreasonable).


Some published opinions find a litigation tactic supported by no rational argument based on law or evidence to be frivolous without necessity of bad faith. Examples: Liebowitz. v Aimexco Inc. Colo.App. 701 P.2d 140, 142 (Claim or defense is “frivolous” if proponent can present no rational argument based upon evidence or law in support of that claim or defense.).


Some published opinions find a litigation tactic to be frivolous based on an attorney standard. Examples: U.S. v Stringfellow, 911 F.2d 225 (argument contained in motion is “frivolous,” within meaning of Rule 11, if it is unreasonable when viewed from perspective of competent attorney admitted to practice before court); Westfall v. Rust Intern 840 P.2d 700.702, 314 Or. 553 (Imposition of sanctions for “frivolous” appeal does not depend on subjective intent of attorney charged with filing allegedly frivolous appeal; appeal is “frivolous” if every argument is one that reasonable attorney would know is not well grounded in fact or that reasonable attorney would know is not warranted either by existing law or by reasonable argument for extension, modification or reversal of existing law).


Courts have categorized as “frivolous” the relitigation of an already decided issue. E.g., Greulich v. City of Lake Oswego (1973, Ore) 504 P.2d 1390 (Generally a pleading that is but a repetition of a former one to which a demurrer has been sustained or which has been stricken out may be regarded as “frivolous” and on motion may be stricken by court).


Another view of so-called frivolous litigation is that it can be recognized, even if it can’t be defined – “I know it when I see it”.

“There are innumerable variations on what constitutes a “frivolous” claim or action, which in the end appear to amount to little more than an “I know it when I see it” standard. . . . (alluding to Justice Potter Stewart’s famous quote regarding the recognition of what constitutes pornography); see also Sanford Levinson, Frivolous Cases: Do Lawyers Really Know Anything at All, 24 OSGOODE HALL L.J. 353, 370 (1986). The traditional definition of”frivolous” is “obviously false upon the face of a pleading, as when something was pleaded that conflicted with a judicially noticeable fact or was logically

impossible….” D. Michael Risinger, Honesty in Pleading and Its Enforcement: Some “Striking” Problems with Federal Rule of Civil Procedure 11, 61 MINN. L. REV. 1, 18 (1976-1977). In addition, the United States Supreme Court has defined a “frivolous” complaint

in the context of 28 U.S.C. § 1915(d) as one that “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,325 (1989); see also Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir. 1985) (holding that, for purposes of Rule 11, a claim is frivolous when “it is patently clear that a claim has absolutely no chance of success under the existing precedents, and where no reasonable argument can be advanced to extend, modify or reverse the law as it stands”); RESTATEMENT OF THE LAW: THE LAW GOVERNING LAWYERS § 110 cmt. d (2000) (“A frivolous position is one that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal would accept it.”); Nathan M. Crystal, Limitations on Zealous Representation in an Adversarial System, 32 WAKE FOREST L. REv. 671, 682 (1997) (suggesting that “the appropriate definition of a frivolous legal contention is one that objectively has less than a de minimis chance of success, with de minimis being defined as five percent”); Carl Tobias, The 1993 Revision to Federal Rule 11, 70 IND. L.J. 171, 197-201 (1994) (noting how various courts have defined “frivolous” under Rule 11 and in similar contexts) [hereinafter Tobias, 1993 Revision]. See generally Samuel J. Levine, Seeking a Common Language for the Application of Rule 11 Sanctions: What is “Frivolous”?, 78 NEB. L. REV. 677 (1999); Levinson, supra. But see Charles M. Yablon, The Good, the Bad, and the Frivolous Case: An Essay on Probability and Rule 11, 44 UCLA L. REV. 65 (1996) (essentially arguing that there is no such thing as a frivolous case).” (Brown, ENDING ILLEGITIMATE ADVOCACY, 62 Ohio St. L.J. 1562 2001, note 20, online at http://digitalcommon…t=fac_artchop).


“ . . . at least one commentator, Professor Charles Yablon, has posited that there is no such thing as a frivolous lawsuit. According to him, what the legal profession typically labels as a “frivolous” or “baseless” action is really a lawsuit with a low probability of success. . . . It appears to be Professor Yablon’s position that very few individuals, if any, are foolish enough to file an action or maintain a position that has zero probability of success. Thus, according to him, the types of cases that are on the receiving end of Rule 11 sanctions are actually cases with a low probability of success. . . . Somewhat consistent with Professor Yablon’s observation, Professor Maureen Armour has noted that courts do in fact impose Rule 11 sanctions in “close cases,” not just the obviously frivolous or “easy’ ones. See Maureen Armour, Rethinking Judicial Discretion: Sanctions and the Conundrum of the Close Case, 50 SMU L. REV. 493 (1997); see also Lawyers’ Responsibilities, supra note 4, at 1649-50 (noting evidence of strong potential for judges to disagree over what constitutes a frivolous case such as to warrant Rule 11 sanctions). If the decision regarding whether a given claim or contention is frivolous is difficult or a “close call,” then logic seems to suggest that the claim or contention is not in fact frivolous. . . “(Brown, supra, at note 81).


A motion, pleading, or appeal should not be considered “frivolous”
Summers v. City of Cathedral City, 225 Cal.App.3d 1047 (appeal, though unsuccessful, should not be penalized as “frivolous” if it presents unique issue . . . if it makes reasoned argument for extension, modification or reversal of existing law).

The “inquisitorial motion” of the previous blog post seems to only fit into category “4” because no reasonable attorney would make a motion to reduce his own ability to fleece his client. But the layman pro se litigant is not an attorney. To hold him or her to the standard of an attorney constitutes a failure of due process. These people are generally laymen who are unskilled in law and court procedures. Our Supreme Court recognizes that they aren’t expected to know what a reasonable attorney would know. “Even the intelligent and educated layman has small and sometimes no skill in the science of law.” (Gideon v. Wainwright (1963) 372 U.S. 335.


The above differences of opinion as to how “frivolous” should be defined show, if nothing else, that it is inevitable for borderline cases to arise. The point is that there are many cases where we cannot say whether or not the word “frivolous” applies. These are borderline cases. And borderline cases are the very essence of vagueness.


When is a statute impermissibly vague?

“A statute is ‘vague’ if its language is so unclear that a person of reasonable intelligence cannot tell what it prohibits, opening the way to arbitrary and discriminatory enforcement.” (U.S. v. Williams (2008) 553 U.S. 285).

Void for vagueness doctrine is a branch of due process doctrine. An order “. . . fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement. Hill v. Colorado, 530 U. S. 703 .” (U.S. v. Williams). Vague laws may trap the innocent by not providing fair warning. The law must convey an understandable standard capable of enforcement in the courts, see Giaccio v. Pennsylvania (1966), 382 U.S. 399, 403. If arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to police officers, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. See Grayned v. Rockford (1972), 408 U.S. 104, 108-109.

Void for Vagueness doctrine can apply to civil as well as criminal law. The vagueness doctrine is usually applied in criminal law and First Amendment claims, but neither the rationale underlying the doctrine nor the case law interpreting it suggests that it should not be applied in any case in which the statute challenged substantially affects other fundamental constitutional rights. See Jordan v. De George (1951), 341 U.S. 223.


The phrase “tactics that are frivolous” is a vague and standardless phrase that leaves the layman in pro per with no objective measure of conformance.

“What renders a statute vague, . . . is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of what that fact is. See, e.g., Coates v. Cincinnati, 402 U. S. 611 . . .” (US v. Williams).

And analysis of the VLS requires the most stringent level of scrutiny:

“In undertaking that inquiry into the statute or ordinance at issue, the courts are to apply varying levels of scrutiny. ‘The difference between the various levels of scrutiny for vagueness has never been definitively spelled out, as in equal protection jurisprudence.’. . .. Though the degree of review is not described with specificity, regulations that are directed to economic matters and impose only civil penalties are subject to a “less strict vagueness test,’ but if the enactment ‘threatens to inhibit the exercise of constitutionally protected rights,’ a more stringent vagueness test is to be applied.” Hoffman Estates, 455 U.S. at 498-499.

“The critical question in all cases is whether the law affords a reasonable individual of ordinary intelligence fair notice and sufficient definition and guidance to enable him to conform his conduct to the law; those laws that do not are void for vagueness.” Grayned, 408 U.S. at 108-109,

“When a statute is challenged under the due-process doctrine prohibiting vagueness, the court must determine whether the enactment (1) provides sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific enough to prevent official arbitrariness or discrimination in its enforcement. Kolender, 461 U.S. at 357,. . . . The determination of whether a statute is impermissibly imprecise, indefinite, or incomprehensible, . . . must be made in light of the facts presented in the given case and the nature of the enactment challenged.” (Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489).

In fact, vagueness permeates the VLS. Consider the title of the statute. Despite the reference to “vexatious litigants” in its title – one need not do anything truly “vexatious” to be labeled a so-called “vexatious litigant” (see previous blog post, “About the Word “Vexatious”). Several elements of the VLS are vague, or at least nonspecific. What are ‘unmeritorious’ pleadings or papers? (CCP 391(b)(3)) What is ‘unnecessary discovery’? (CCP 391(b)(3)) What are ‘litigations . . . finally determined adversely’? (CCP 391(b)(1)(i)).

The latter question is discussed in Mr. Burton Wolfe’s reply brief to the appellate court in Wolfe v. George (9th. Cir. 2007) 486 F.3d 1120, as follows:

“In Taliaferro v. Hoogs, 237 Cal.App.2d 73 (1965), the Court of Appeal defined the term as ‘unsuccessful suits.’ . . . .

In Childs v. Paine Webber, Inc., 29 Cal.App. 4th 982 (1994), the Court of Appeal, noting that ‘final determination’ is not defined in CCP sec. 391(b), settled upon the principle that ‘a judgment is final for all purposes when all avenues for direct review have been exhausted.’ Id, page 993. . . .

In Tokerud v. Capitalbank Sacramento, 38 Cal.App.4th 775 (1995), the Court of Appeal held in one part of the opinion that “a voluntary unilateral dismissal of the underlying dispute is generally considered a termination in favor of the defendant.” Id., page 779. Wolfe has seen judges use that part of the opinion to declare a pro se plaintiff to be a “vexatious litigant” without looking beyond “generally considered” to the exception; . . . .

The exception in Tokerud to “generally considered” is this: “where the dismissal leaves some doubt regarding the defendant’s liability, as when the dismissal is part of a negotiated settlement,” then the dismissal will “not be deemed a termination favorable to the defendant.” Id.,pages 779-780.

Thus, the view of “finally determined adversely” in the case relied upon by Appellees’ attorney, Taliaferro v. Hoogs (supra), wherein the definition is “unsuccessful suits,” is in conflict with the views of other divisions (or justices) of the California Court of Appeal.

The question, then, is how a self-represented lay person, untrained and unskilled in law, is to know if past litigations should be construed as having been “finally determined adversely” to her or him under any one of the conflicting definitions of that phrase in opinions from the California Court of Appeal that might lead to a finding in the course of a future litigation that she or he is a “vexatious litigant”? If Court of Appeal justices are so uncertain of the meaning that they issue conflicting versions of it, and reverse superior court judges’ findings on the matter, how then should an unskilled lay person know what to make of it?”

The short shrift given in the published opinion to Mr. Wolfe’s cogent arguments is the subject of discussion in a prior blog post – “Wolfe v. George – Judge Kleinfeld’s Judicial Shortchange”.
In this blog post, the focus is on one word: “frivolous” – to show that the word “frivolous” – particularly as it’s used in the context of the VLS (applying the phrase “tactics that are frivolous”) which applies only to pro se litigants (most of whom are ordinary people – i.e., not lawyers) is impermissibly vague under constitutional void-for-vagueness doctrine.

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