You may have heard the term “vexatious litigant” and quickly think of ADA lawsuits, but that is not exactly what the Judicial Council of the California thinks.

Under the Code of Civil Procedure section 391 (b), a vexatious litigant is a person who does any of the following:

In the immediately preceding seven year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years with having brought to trial or hearing.

After litigation has been finally determined against the perso, repeatedly relitigates or attempts to relitigate, propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.

In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.

Has previously been declared to be a vexatious litigant by any other state or federal court of recordin any action or proceeding based upon the same or substantially simlar facts, transactions, or occurrence.

The Administrative Office of the Courts keeps a list of our state’s vexatious litigants. You should check it out here. The Vexatious Litigant List for California contains hundreds of names. This list is distributed to the county court clerks annually and it is updated monthly. As an example, in Orange County there are 77 people who are on the list. One of those individuals has filed over 22 lawsuits since 2006, which the Orange County Register discussed last month.

So why aren’t the lawyers who target businesses with huge numbers of ADA lawsuits included on this list? The vexatious litigant statue does not apply in these cases because these lawyers represent clients, and not themselves.

Unfortunately, because of our state’s complex building codes for disabled access, many small business owners don’t even know they are out of compliance until they are sued, and by then it’s too late. They have to pay thousands of dollars to bring their businesses into compliance, only to face potential lawsuits when the building codes change again. So while these lawyers violate the spirit of the law, they do not violate its letter.

Last year, a bill to allow business owners a period of time to correct alleged ADA violations before they could be taken to court failed to make it out of Senate Judiciary Committee. Legal reform advocates aren’t done trying yet, though. A few different versions of the bill have been proposed this year (more on those to come later), so perhaps legal reform is still a possibility with this Legislature.

Abusive ADA lawsuits destroy small businesses and cost our communities jobs. California needs to reform the way it enforces the ADA to allow businesses and the disabled community to work together. Remember, we need to create jobs in California, not more lawsuits.