An Applicant Can Be A Vexatious Litigant

There is a concept in civil litigation that you can not be litigating the same idea more than one time. The concept that you cannot be a vexatious litigant has never been applied to the Workers’ Compensation Appeals Board (WCAB), until now.

The applicant in this case was in proper. The applicant alleged a specific injury as well as a cumulative trauma The applicant settled by way of Compromise and Release (C &’R)1 The applicant then tried to set the C & R aside. The workers’ compensation judge determined after a hearing that the G & R could not be set aside under Labor Code section 5804, because more than five years had elapsed since the original injury.

The applicant filed a Petition for Reconsideration which was apparently denied so he filed a Petition for Writ of .  Review. This was denied and the applicant again tried to relitigate the matter before the WCAB. He filed for more writs after having been unsuccessful in the previous attempts to set aside the C & R after the fourth filing the WCAB filed a “Notice of Motion and Motion To Obtain A Profiling Order Pursuant to the Vexatious Litigant Provisions of , Code of Civil Procedure, section 391 et seq.”.  The Court of Appeal denied the motion because the writ had already been denied.

When the applicant filed his fifth writ, ‘ the court of appeal held a hearing and found die applicant a vexatious ‘ litigant.  The-applicant argued that res judicata did not apply to material that he never raised when he should have.  The court of appeal felt res judicata did apply and made the applicant a vexatious litigant.

The court delineated res judicata for workers’ compensation purposes. It stated: “ Res judicata cannot be avoided by neglecting to bring a relevant matteror important evidence to the attention of the tribunal at the appropriate time. If the matter was within the-scope of the’-action, related to the subject matter and relevant to the issues, so that it could have been raised, the judgement is conclusive on it despite the fact it was not in fact expressly pleaded or otherwise urged.’ The reason for this is manifest. A party cannot be negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matter which were raised or could have been raised, on matters litigated or litigable.”

The penalty for being a vexatious litigant is the imposition of sanctions.  The res judicata issue of this case is very important to remember in all cases.

Case: Franklin R. Kinsley V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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