The recent panel decision, Marva Smith v. Solar Turbines, Inc., ADJ12010500, reads like a crime thriller novel with a dizzying, whirlwind of conspiracy theories postulated by an in pro per applicant. The decision serves to remind us of the purpose of the rules created for vexatious litigants.  

Vexatious Litigant Criteria

As a quick refresher, recall that pursuant to 8 CCR § 10430(a) a “vexatious litigant” means (with emphasis added to the significant “elements” of the rule by yours truly):

  1. A party who, while acting in propria persona in proceedings before the Workers’ Compensation Appeals Board, repeatedly relitigates, or attempts to relitigate, an issue of law or fact that has been finally determined against that party by the Workers’ Compensation Appeals Board or by an appellate court;
  2. A party who, while acting in propria persona in proceedings before the Workers’ Compensation Appeals Board, repeatedly files unmeritorious motions, pleadings or other papers, repeatedly conducts or attempts to conduct unnecessary discovery, or repeatedly engages in other tactics that are in bad faith, are frivolous or are solely intended to cause harassment or unnecessary delay; or
  3. A party who has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction(s) or occurrence(s) that are the subject, in whole or in substantial part, of the party’s workers’ compensation case.

Per subsection (b), a party can be declared a vexatious litigant by “petition of a party, or upon the motion of any workers’ compensation judge or the Appeals Board, a presiding workers’ compensation judge of any district office having venue or the Appeals Board.”

The consequence of being declared a “vexatious litigant,” per subsection (d) is that a presiding workers’ compensation judge or the Appeals Board may enter a “prefiling order,” i.e., an order which prohibits the vexatious litigant from filing in pro per any Application, Declaration of Readiness, or petition without first obtaining leave of the presiding workers’ compensation judge or the Appeals Board.

Procedurally, then, requests by the “vexatious litigant,” per subsection (e), are “conditionally filed” pending review by the presiding judge or the Appeals Board to determine if subsection (a) has been violated. If the request does not violate subsection (a), then it will be deemed to have been “properly filed.” In making such a determination, the presiding judge or Appeals Board may consider “whether there has been a significant change in circumstances (such as new or newly discovered evidence or a change in the law) amongst other factors that might materially affect an issue of fact or law that was previously finally determined against the vexatious litigant.”

Case Background

This brings us to the Smith panel decision. Not at issue is whether the applicant can be deemed a “vexatious litigant,” as this had been previously determined. Rather, the panel decision is the Appeals Board’s “pre-filing review” of the applicant’s “conditional filing” to determine whether the requests would be accepted for filing.

Essentially at issue is whether there was a timely Petition for Reconsideration to an Order Dismissing Application for Adjudication of claim, dated April 6, 2023. The 25-day limit to file the Petition fell on May 1, 2023. 

As may be the case with in pro per applicants, some deciphering was required by the trial judge to determine what the Applicant intended to file. The tangible documents appear to be (1) a letter dated April 28, 2023, and received by the Board on May 1, 2023, which stated only “Please process my reconsideration for change of venue” but including no attachments; (2) a proof of service for a “Motion for Disqualification” reflecting a date of service of May 1, 2023, but with no such document filed with the Board; and (3) the Petition for Reconsideration with a proof of service attesting service by mail on May 1, 2023. The Petition arrived at the Board on May 3, 2023.

Cutting to the chase, the trial judge held that the Petition for Reconsideration was untimely. This is ultimately the decisive determination.

However, the Appeals Board also found a “material change in circumstances related to the dismissal of the Application for Adjudication of Claim” and thus accepted the petition for filing. The Board of course then summarily dismissed the Petition as untimely and noted the Petition would have been denied on the merits per the trial judge’s report. (The Appeals Board considered the April 28, 2023, letter a “conditional filing” that it then rejected for filing, noting it made no reference to the dismissal Order).

In concluding their opinion, the Appeals Board noted that:

“Everyone from the San Diego WCAB to the Department of Rehabilitation, from the Joan Kroc enter to the Nazis, the CIA, NASA, and the former Vice President of the United States are somehow involved in her alleged work injury claim against Solar Turbines of “fraud in the inducement in the employment contract and spoilage of evidence in medical recordkeeping and radiography.” Ms. Smith is a vexatious litigant.”


Other than a perfunctory allegation of “new and relevant facts” it is not clear to me what in the Petition was considered by the Appeals Board to be a “material change in circumstances” such that it was not deemed in violation of the vexatious litigant “pre-filing order.” A favorable view may be that the order dismissing the Application for Adjudication of Claim qualifies as a change in circumstance since the petition is against the order and there has been no prior challenge to the dismissal order.

In our humble opinion, the Petition appeared patently “unmeritorious” and “frivolous.” We presume the Appeals Board wanted to address the merits of the petition.

The vexatious litigant rule is designed to prevent vexatious litigants from making meritless and frivolous claims intended only to cause harassment and financial burdens on the targets of their attacks, and to reduce the burden imposed on the WCAB by the filing of unmeritorious pleadings and legal claims. The rule further helps the Board as gate keepers of their dockets by sieving pleadings or correspondences before they are properly filed. Otherwise, the Board will be a dumping ground for all sorts of outlandish claims and pleadings.

By Jorge Tena, Esq., and Ekojoka Aghedo, Esq., Associate Attorneys, Bakersfield Office August 2023 


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