As usual, lawyers in suits are tapping their fingers on their briefcases, waiting for the judge in Department 31 in downtown Oakland to hear their motions. Well, lawyers and Fred Whitaker. He isn't an attorney, although in his twenty-year noncareer as a legal hobbyist, he has probably made more court appearances than some of the real lawyers in the room. His "briefcase" is a plastic shopping bag that holds his crinkled legal briefs. It just so happens to be from Albertsons, one of the many grocery stores he is suing for, among other things, not letting people buy nonalcoholic beers such as O'Doul's with food stamps. Not that he drinks O'Doul's himself. He is suing on behalf of consumers who've been deprived of that joy.
The lawyers for the grocery stores think Whitaker shouldn't even be here. Thirteen years ago, the state court of appeals took the extraordinary action of declaring him a nuisance to the California judicial system. By that time, he had filed 24 lawsuits in Alameda County Superior Court over a seven-year period -- including one for being charged sales tax on the full price of root beer he had a coupon for. During that same period, he also filed 35 appeals and writs to the higher courts. The appellate court branded Whitaker a "vexatious litigant," the legal phrase for the pesky do-it-yourselfers who repeatedly file unsuccessful suits without a lawyer: "Today," the panel wrote in 1992, "we take one small step to eliminate an obvious waste of judicial resources." Whitaker's designation was supposed to stop him, or at least make it much harder for him to hound judges and clog up court calendars.
Maybe he didn't get the memo. Whitaker currently has seven lawsuits pending in Alameda County Superior Court, as well as appeals up the judicial food chain. After quickly disposing of two other matters, Superior Court Judge James Richman, a Pete Wilson appointee, calls Whitaker's case, having left it for last. Whitaker has already made several appearances before Richman this year, and the judge assumes a let's-get-this-over-with posture.
The main issue before Richman today is whether Whitaker should have to put up $25,000 so he can continue his lawsuit against, in this case, Ralphs. The lawyers for the grocery chain claim Whitaker's lawsuits are "frivolous," and since the vexatious litigant has little to no chance of winning, he should have to front the money to cover the company's anticipated court costs. Whitaker, of course, can't afford this so-called security fee. The 53-year-old has a master's degree in business administration from UCLA, but not a job -- he lives with his mom in East Oakland, and relies on government disability checks. Whitaker knows the judge will side with Ralphs. In his view, Richman and other judges don't like people who come into their courtrooms without an attorney.
Given the inevitability of the outcome, you might think the hearing would be done with in five minutes. Instead, it goes on for what seems like an eternity, but is probably only a half-hour. Whitaker is defiant and argumentative, although not quite belligerent. He doesn't yell. But he contests every little thing -- whether he was properly served (he's a stickler for procedure), whether he is a vexatious litigant by definition anymore (he says not), and whether rulings by other judges in earlier lawsuits correctly followed the law (he says they didn't). "I had the facts on my side and the law on my side," Whitaker explains to Richman about an old case of his.
Richman is less than sympathetic. He knows Whitaker questions every judge he faces. "All of them were wrong, all the way, all along; that's your fundamental position," the judge sarcastically snaps. "I find it wanting, and I am not going to listen to [it]." Richman concurs that Whitaker has little to no chance of winning, and orders him to put up the cash if he wants his suit to move forward.
So, as usual, Whitaker gets his day in court, and loses. But it's not a total loss -- on the way out of the courthouse, he spies a bin loaded with slightly outdated law books the court is chucking out. He grabs an armful of seven or so to take home.
He won't let today's little setback stop him. He's on a mission, and not just to ensure people's right to buy O'Doul's with food stamps. What he wants most is to have the vexatious-litigant brand removed from his record. And he's willing to take his case all the way to the United States Supreme Court if he has to. Again.
When Americans gripe about frivolous lawsuits, they often think of ambulance-chasing personal-injury lawyers who have won multimillion-dollar judgments for dumb reasons -- such as the woman who sued McDonald's for serving its coffee too hot. But in the eyes of the courts, so-called vexatious litigants take the frivolous factor to a whole other level.
Take the California prison inmate who, according to the Los Angeles Times, has filed more than forty lawsuits, including one against his penitentiary cafeteria for serving him a broken cookie. Then there's the infamous San Francisco woman, dubbed the "Witch of Westwood" in the press, who filed so many lawsuits against her neighbors that realtors reportedly felt obligated to disclose her presence to prospective homebuyers. Or consider the Hayward man who unsuccessfully sued Alameda County last year for forcing him to pay for a marriage license. "Marriage is a basic natural right," he wrote in his complaint. "License is a form of permission. Permission cannot be made requisite for the exercise of a right."
No lawyer, law professor, or court administrator contacted for this story could offer any precise data on how much such cases cost the system. Given the roughly 1.5 million lawsuits filed annually in California county courts, the 650 people deemed "vexatious" represent a very small fraction of the overall caseload. There is, however, anecdotal evidence of what it can cost to defend against such suit-happy plaintiffs. Santa Clara County officials reportedly spent about $200,000 in legal fees in the 1990s fighting a man who filed nineteen lawsuits after the county probation department declined to hire him. A $230-an-hour attorney representing Safeway and other grocery stores against Whitaker's lawsuits this year estimated that if he was allowed to proceed, the defense would cost his clients $50,000.
Who, exactly, are these serial suers? Dr. Mark Levy, a Bay Area forensic psychiatrist, believes typical vexatious litigants are paranoid and think the world is out to get them. Lawsuits serve as a way of "externalizing" their internal problems, Levy says -- fighting in court keeps them from turning their conflict inward and becoming depressed. "You've got these people who are needing the court to serve as a theater in which they can enact their personal drama instead of as a place to resolve disputes," the doctor says. "They're not looking for dispute resolution; they're looking for witnessing and vindication."
Vexatious litigants tend to fit into two categories, according to Stephen Bundy, a professor at UC Berkeley's Boalt School of Law. Some are shakedown artists who use the judicial system to squeeze money out of people or companies. To that point, Republican State Senator Charles Poochigian introduced a bill earlier this year aimed at curbing "opportunistic litigants" who profit by filing dubious claims under the Americans with Disabilities Act. Poochigian cited one man in particular who had filed more than four hundred ADA claims in California, including thirteen separate complaints filed for suspiciously identical injuries over a five-day period.
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