As an attorney, you might not be surprised to learn that—if you file serial meritless lawsuits in pro per—you, too, may be deemed a vexatious litigant. File five unsuccessful lawsuits within seven years, and that’s what happens. But you might not realize that appeals count toward your five-lawsuit limit. That was the outcome in the recent published decision of Kouvabina v. Veltman (D1d3, Oct. 16, 2025, No. A171807).
As Prof. Shaun Martin reports, the vexatious litigant here graduated from U.C. Berkeley Law School, previously worked in Big Law at Wilson Sonsini, and is a current staff attorney at none other than the Commission on Judicial Performance. So the vexatious-litigant statute is definitely not a respecter of persons.
You will definitely not be surprised to learn that this dispute arose out of a family law action. The opinion does not suggest that the underlying proceedings were particularly vexatious. Rather, it was just the number of case numbers generated in the appellate court that was vexing. Attorney Elena Kouvabina, in pro per, petitioned to disqualify one family judge three separate times, and again as to a second judge. Those writ petitions were all summarily denied. And while normally a summary denial of a writ petition is not deemed to be on the merits—usually, they are denied for lack of irreparable harm—because judicial disqualification can only be had on a writ basis, summary denials are deemed on the merits.
So there went four lawsuits, leaving only one before Kouvabina would reach her limit. She then filed four appeals—though three of them were consolidated, dealing with support, custody, and fee issues. At any rate, that makes the five lawsuits that triggers Code of Civil Procedure sections 391 to 391.8.
Kouvabina argued that an appeal or appellate writ is not really a “lawsuit” for purposes of the vexatious-litigant statutes. But that’s wrong, as the cases have held otherwise.
Her better argument is that the vexatious-litigant statutes prevent affirmative lawsuits, not efforts to seek defensive relief, as held in John v. Superior Court (2016) 63 Cal.4th 91. That’s true, the court acknowledged, but the rule doesn’t mean that you get a free pass just because your party designation is “defendant.” Instead, the John rule applies to defendants “appealing from an adverse judgment in litigation they did not initiate.” And here, Kouvabina was not filing mere defensive appeals because she was the one seeking affirmative relief in to modify support and custody and seeking fees.
Of course, this only applies if you are in pro per. But even appellate challenges that have merit are often denied—and five of those and you’re a vexatious litigant. So you should always consider hiring an appellate attorney.
The court gave only casual application to the Johns rule as it applied to Kouvabina’s writ petitions seeking judicial disqualification. The court reasoned that they count toward the five-lawsuit limit because, when a writ petition is the “exclusive means of obtaining appellate review,” a summary denial is on the merits. That is true, but that still doesn’t explain why it should be counted against the five-lawsuit limit. Textually, section 391 defines “litigation” as “against the same defendant. A statutory writ defines the defendant—or “respondent”—as the Superior Court. And in fact the real party in interest typically is not even required to take any action at all.
Statutory writs are just different creatures from regular lawsuits because they are not affirmative claims. Rather, they provide structural guarantees of fair process—without them, the system could be used to grind up defendants, making the process the punishment. The writs must be filed now or never—once the structural guarantee is compromised, waiting until the end of the case is too late.
Consider the other types of statutory writs, including challenges to the wrong venue, or to lis pendens, or Public Records Act violations. If a defendant were sued in arguably the wrong venue, and her property slapped with a lis pendens, and unable to get information through a Public Records Act request, and noticed that the assigned judge was former colleague with the plaintiff, each of those issues could be challenged on appeal only by way of a statutory writ. And if the Court of Appeal denied each of them, and then the defendant was unsuccessful on her cross-claims and appeal, she’s already hit five lawsuits. She’s now a vexatious litigant, just for exercising her statutory appellate rights in a single lawsuit.
Something about that seems wrong.
