The holding in the published opinion in Blizzard Energy, Inc. v. Shaefers (D2d6 Nov. 29, 2022) 85 Cal.App.5th 802 is that a frivolous cross-complaint counts toward the five frivolous lawsuits an in pro per litigant may file under Code of Civil Procedure section 391 before being deemed a vexatious litigant. The trial court had refused to declare Shaefers a vexatious litigant because one of his lawsuits was a cross-complaint and the trial court thought that didn’t count. It does count.
But how did Blizzard convince the court to grant review of the order? Parting ways with a First District opinion from earlier this year, the Second District here held that an order declaring a person to be a vexatious litigant is the equivalent of an injunction. And injunction orders are appealable under section 904.1. So the Blizzard court held the order was appealable.
My view: I’m not so sure. Orders that restrict or require actions in the real world are different from orders that restrict or require actions in court world. Orders requiring a corporation to pay dividends? Injunction, of course, thus appealable. Orders requiring a corporation to produce documents? Also an injunction? Not a chance.
Yet what is the difference? The only difference I can detect is one affects the real world, and the other affects court world. Orders governing conduct in court world are not going to be considered injunctions. So consider this holding involving vexatious-litigant determinations a one-off.