A Man Named Sue

Citizen Fred Whitaker, blacklisted for filing dozens of 'frivolous' lawsuits, hopes to clear his name -- by filing more lawsuits.

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.

The other brand of vexatious litigant may act in good faith, Bundy says, yet still burden the courts and those they sue by drowning them in paper, filing motions without cease, and appealing rulings that don’t go their way. “There are those who have a perennial sense of injustice and are never satisfied and can’t let go,” Bundy says.

There’s another subcategory of litigious people that Bundy doesn’t identify, but they’re out there. These are the folks who often view themselves as public watchdogs, defenders of the little guy, crusaders against corruption and systemic failures. Fred Whitaker is one of those guys.

By vexatious litigant standards, Fred Whitaker is somewhat of a star. He has a published state appellate ruling in his name (In re Whitaker), and his persistence even forced the US Supreme Court to respond to his stream of filings a decade ago (more on that later). A lawyer for one of the grocery stores he is currently suing wrote in a brief: “[T]o label Whitaker merely a ‘vexatious litigant’ would be an insult to vexatious litigants. More accurately, Whitaker is a bane on the judicial system.”

Whitaker is certainly a fixture around Alameda County courthouses. Barbara Heep, a legal reporter for Courthouse News Service, says she sees him hanging around a lot, and can often hear him booming out advice and instructions to newbies unfamiliar with the arcane system at the court clerk’s office. “For the longest time I thought he was a paralegal because he was in here so much,” she says.

He probably won’t be mistaken for a lawyer, however. Whitaker favors a disheveled look, jeans and white undershirts, and unkempt hair that is inadvertently forming baby dreadlocks in back. When he smiles, he reveals what appears to be a solitary front tooth.

Whitaker says his entrée into the world of amateur lawyering goes back more than two decades. After getting his MBA, he self-published a book in 1979, How to Form Your Own Non-Profit Corporation in One Day for Under $50 Without a Lawyer. (Brevity is not among his strengths.) Whitaker shopped it around to various book houses without any luck. He says someone then stole his idea and published a book on the same topic (but with a shorter title). He responded by suing its Delaware publisher for copyright infringement.

What his mom, Mildred, remembers is Fred’s transformation after he got fired from a couple of jobs. “His whole personality changed … and he’s got this complex that people are out to do him wrong,” she says. “He doesn’t trust too many people,” especially establishment figures. One of his early lawsuits was against the owner of a 7-Eleven where he worked. Court records show that the owner fired him after he pocketed about $10 to $25 from the till. Whitaker, who sued for wrongful termination, said his boss gave him permission to take the money for overtime he had worked, but used the episode as justification for firing him. Whitaker adds that a white employee who stole a case of beer didn’t get fired.

That was one of his more run-of-the-legal-mill cases. The classic Whitaker lawsuit challenges the everyday ways he says people, especially poor ones, get nickel-and-dimed but can’t afford to hire a lawyer to take their case to court. He often tries filing class-action lawsuits on behalf of all consumers or the general public. Judges, however, have dismissed his nickel-and-dime grievances in the past, noting that since Whitaker isn’t a lawyer, he can represent only himself.

Here are a few of the lawsuits that helped land Whitaker on the vexatious litigant list in 1992: He sought a $40 million judgment from an Oakland motel he alleged charged him an illegal $2 occupancy tax. He sued Polaroid on behalf of all people induced to buy videotapes with what he now recalls were essentially bogus $1 rebate coupons (Whitaker had listed his own damages as $2 plus seven weeks’ interest). He demanded refunds for all customers of an eyewear chain who were charged $12 for a one-year warranty, arguing that prescription glasses come with an implied warranty as a matter of law. He sued a grocery store for charging sales tax on the full price of Mug Root Beer instead of assessing the tax after deducting his thirty-cent store coupon, a difference of about two cents. The taxation was technically illegal, but Whitaker sued for $13 million in punitive damages. “Since most people I know are poor, a lot of the lawsuits result from the illegality that they face,” he explains. “But most people, when you’re poor or middle-class, you don’t know the law and you don’t have time to pursue ’em.”

Whitaker knows the law and he has the time. He says he gets disability payments on account of a variety of ailments — bad back, bad knees, and fingers deformed from basketball injuries. But challenging alleged corporate scofflaws in court doesn’t ensure victory. In fact, Whitaker concedes he has rarely prevailed in his legal actions — there were a couple of small settlements. That doesn’t mean his lawsuits lack merit, he insists. “Just because you file a lawsuit and lose doesn’t make it frivolous,” he says.

Two or three times a week, Whitaker drives to downtown Oakland to do research at the county law library. On one recent trip, clad in a white T-shirt that hugged his ample belly, the amateur litigator pulled out the Daily Journal, a legal newspaper. He scanned its front page for news of cases he might able to apply to his challenge of the vexatious litigant law, and pointed out a story on the California Supreme Court’s landmark ruling regarding same-sex parents. The important point, he noted, is “you have to treat people the same.”

Whitaker comes across as stubborn and insolent in the courtroom, but outside of it he is friendly and polite. He is clearly well known at the law library. He waved hello to a fellow pro per (do-it-yourself) litigant, who is preparing a federal medical malpractice suit, and when Whitaker explained some case law — he can accurately recall many legal citations and certain state codes down to the decimal point — a librarian shushed him by name. Whitaker lowered his voice to a whisper. He nestled into a desk chair and got on a computer to use Westlaw, an online legal research service. He typed in the search phrase “judicial bias,” and the computer spat back 393 results with links to precedent-setting cases on the topic.

Like many vexatious litigants, Whitaker thinks the courts are biased against him, and often moves to disqualify from his cases judges who rule against him. Judge Richman is the current object of his ire. Richman presides over the county’s primary law and motion court, and thus runs into Whitaker frequently because, well, Whitaker is always filing motions that Richman almost always rules against. Whitaker doesn’t much care for the judge. “He has a tendency to want to lecture me on my attitude,” he says.

Whitaker argues that the courts discriminate against vexatious — which he pronounces “veckshus” — litigants. He recalls how a friend once filed a lawsuit, and the judge let it proceed without a fuss — but when Whitaker filed a suit with nearly identical claims, the judge immediately tossed it. “When you go to court, a judge doesn’t look at your papers independently and then make a determination,” he argues. “He looks at you — once you’re a vexatious litigant, you’re already identified as being a bad guy. … So that puts you in a different position.”

The way he figures it, the best way to avoid such unfair treatment is to get himself purged from the so-called blacklist. Trouble is, hardly any of the people on the state’s list of vexatious litigants have ever gotten off, except perhaps by dying. Once branded with that Scarlet V, a person pretty much carries it for life.

Oddly enough, state law doesn’t provide any clear-cut way for someone to alter his vexatious status. The origin of the law passed by the California Legislature in 1963 is a little murky, although one self-styled historian of the subject says it began with the purported transgressions of nine lawsuit abusers who had filed more than one hundred cases without a lawyer. In any event, it defined a vexatious litigant as someone who has filed or maintained five unsuccessful do-it-yourself lawsuits (not including small claims) over a seven-year period, or someone who repeatedly sues over the same issue, refusing to accept no for an answer. The party being sued can ask the judge to deem his pursuer vexatious. Once branded as such, the plaintiff must front money to cover the other party’s litigation costs if the judge determines he or she is unlikely to prevail. The Legislature strengthened the law in 1990 with amendments that require serial lawsuit filers to get permission from the presiding judge before filing a case.

To keep tabs on the court-cloggers, the legislators also directed the California Judicial Council to maintain a list of these “vexatious litigants” and mail it out to court clerks statewide. This list has grown steadily over the past fifteen years. Fred Whitaker was among the first to get on it from Alameda County, which boasts 24 of the roughly 650 names. Contra Costa County has 18.

San Francisco writer and self-described “public-interest litigator” Burton Wolfe is one of those rare birds who has escaped what he calls the blacklist. A San Francisco Superior Court judge put him on the list in 1992, after he filed a series of unsuccessful lawsuits challenging the business practices of taxi companies. Seven years later, he persuaded another judge to remove him. Only two other people have ever gotten off the list, according to the 73-year-old Wolfe — one had the vexatious status quickly overturned on appeal, and the other died. Wolfe got off, he says, because the judge in this case later admitted he was wrong. Real lawyers, he adds, eventually pursued the same claims against taxicab firms. “I’ve won a lot of lawsuits,” he says. “I went up against some of the biggest organizations and law firms in the country and beaten their butt. I’ve gotten judges reversed on appeal.”

Within a year of his removal, Wolfe filed six pro per lawsuits in state court. Then came his magnum opus in federal district court: a March 2000 lawsuit challenging California’s vexatious litigant statute by arguing that it violated the First Amendment and constitutional guarantees of equal protection and due process. Since Wolfe was no longer a vexatious litigant himself, he sued to protect himself from being branded one again in the future.

The statute, he says, discriminates against people who represent themselves in court. Having a lawyer, he points out, in no way guarantees that a lawsuit isn’t frivolous. “The fundamental problem is that people can’t get lawyers, and not all of them are going to be willing to be shut out of the courts because they don’t have enough money to pay a lawyer,” Wolfe explains. “So they go to public law libraries and start studying to see how they can get into court on their own. And they make mistakes. They foul up. Of course they are going to make mistakes. They just don’t know enough about law to do things the way a judge is used to seeing. Then the judge gets aggravated and throws them out of court and says they’re abusing the judicial process.”

Wolfe concedes that some people abuse the process, but they are the minority, he says. In the late ’90s, he received a grant from the Fund for Investigative Journalism, which he used to interview one hundred people on the vexatious litigant blacklist. He found that 90 percent were poor, more than half had some kind of mental or physical disability, and all were subjected to relentless technical motions by the lawyers representing the defendants.

Wolfe says most folks on the list are good people: “You know, they had a grievance, they thought they were damaged, at least in their minds they were damaged, and they went into court to try and redress their grievances, that’s all. They’re not trying to harass anybody.”

He even contends that so-called vexatious litigants are being scapegoated in much the same way the Nazis scapegoated the Jews. While that is clearly hyperbole, even the law’s defenders acknowledge the constitutional tensions it creates. The First Amendment, after all, allows for the redress of grievances, and the vexatious litigation law is designed to prevent certain people from having their day in court. State appellate courts have repeatedly upheld the law, opining in one oft-cited ruling that “the general rights of persons to file lawsuits … does not confer the right to clog the court system and impair everyone else’s right to seek justice.”

Wolfe, meanwhile, succeeded earlier this year in getting a federal judge to review the law’s constitutionality for the first time. In an order late last month, US District Court Judge Saundra Armstrong reasoned that the Supreme Court has consistently held that “baseless litigation is not immunized by the First Amendment right to petition.” Besides, she wrote, if a vexatious litigant has a bona fide grievance, the presiding judge will presumably allow it to proceed as a lawsuit. Wolfe, in other words, was shot down.

He says he’ll appeal.

A year ago, Fred Whitaker did something he says he hadn’t done for a long time — he filed a lawsuit. Several, actually. His targets: Grocers and liquor stores including Safeway, Albertsons, Andronico’s, and Ralphs. He alleged that these stores improperly refused to let people buy nonalcoholic beers with food stamps; illegally reduced the purchasing power of food stamps by charging recycling-deposit fees on canned and bottled beverages; and systematically overcharged consumers one cent per can or bottle while collecting money for California’s recycling program. Lawyers for Ralphs struck back by calling Whitaker’s complaint “scattershot and vexing,” that is, unintelligible.

That Whitaker got the green light to sue from Alameda County’s presiding judge, however, meant the judge thought his claims had at least some arguable merit. In particular, the recycling claim sounded viable. If Whitaker’s claims were accurate, retailers had exploited state recycling laws to pocket extra pennies and pad their cumulative profits by millions of dollars.

But the amateur lawyer still faced daunting obstacles. Shortly after Whitaker filed this battery of lawsuits, state voters approved Proposition 64, a measure that limits lawsuits for unlawful business practices to those plaintiffs who can claim personal damages. For instance, since Whitaker doesn’t drink O’Doul’s, he’d have difficulty proving he was harmed by his inability to buy it with food stamps. As for the recycling fees, he’d be hard pressed to show significant personal loss.

But his biggest problem was his Scarlet V. So not long after he sued the grocers, Whitaker filed new motions asking for his removal from the blacklist. His argument seemed reasonable enough: He hadn’t filed a lawsuit in the seven years from October 1997 to October 2004, and thus hadn’t suffered any “adverse determinations” in court during that time, he said. Therefore he no longer met the legal definition of a vexatious litigant.

The grocery-store lawyers immediately questioned whether Whitaker had really managed to stay out of court for all that time. They gleefully quoted judges who had determined in two instances that he had enlisted friends during those years to circumvent the court-imposed restrictions. They also alleged that in 1996, a Whitaker proxy had sued — and lost — over many of the same claims Whitaker was suing over now. He denies he put anyone else up to suing.

The unenviable task of deciding Whitaker’s fate fell to none other than Judge James Richman. The judge, who didn’t respond to an interview request for this story, is no stranger to controversy. Two years ago, tenant activists who thought he was too pro-landlord presented the presiding judge with 2,500 signatures demanding that Richman be reassigned. He also is no stranger to unusual and precedent-setting cases. In 2003 he allowed a couple to sue to recover damages for emotional distress from their veterinarian for allegedly misdiagnosing their dog, which later died of cancer. But observing Richman from the gallery, you’d get the sense he has never dealt with anyone quite like Fred Whitaker.

Whitaker immediately got off on the wrong foot by filing a motion asking Richman to reconsider his decision before the judge had even issued one; Richman later described it as a “frivolous” pre-emptive strike. The judge ultimately ruled against Whitaker in an eighteen-page order in which he concluded that the petitioner’s behavior suggested he was far from reformed.

Five days later, Whitaker was back in Richman’s court trying to pick apart that decision. “You indicated that my MO was to file frivolous motions of [judicial] bias,” he told the judge, according to transcripts. “Fine. That is your allegation. You’re entitled to that allegation. But the law, Smith, Smith & Kring v. Superior Court, 60 Cal. App. 4th, 577-578, requires where there’s any factual assertions made, that it has to be supported by evidence. …

“There’s not one shred of evidence. … You said that’s my MO — I didn’t file any lawsuits for seven years; how can I have an MO when I don’t file any documents?”

Richman was having none of this. “There are two ways to be a vexatious litigant,” he lectured Whitaker. “One of them is, as you know, so many cases decided adversely to you in a certain period. Another way is for somebody to continually urge after urge after urge certain points that have been rejected by the court, and that was one of the two bases [upon which Whitaker was declared vexatious].”

“Right,” Whitaker agreed.

“In the words of the order we issued, a long order — thoughtful, if I say so myself — is that you haven’t mended your ways.”

“Can I respond?” Whitaker asked.

The judge ignored him. “And an illustration of that, Mr. Whitaker, is that you’re back in here, you know, arguing something. Maybe you think you have a right to argue it, but it’s already been rejected …”

“Okay,” Whitaker said.

“So you don’t seem to get it,” Richman snapped.

“Can I respond?” Whitaker asked again.

“You’re obviously intelligent,” Richman continued. “You’re obviously articulate, and perhaps if you put those abilities in the correct way so that you try and accomplish, you know, justice for yourself or whomever, more power to you.”

Since that April exchange, Whitaker has applied “those abilities” to filing more motions and appeals. He has appeared in Richman’s court at least three more times. After a couple of appearances in which the judge predictably shoots him down, I ask Whitaker if this, finally, is the end of the road. Each time, predictably, his answer is no.

Most of Whitaker’s lawsuits against Bay Area grocery stores are more or less dead, since he can’t front the money to cover litigation costs — although one or two are still afloat in the pretrial ether. His battle against California’s judicial system and the state’s vexatious litigant law, meanwhile, has gained little steam.

Over the Labor Day holiday, Whitaker worked hard to assemble an inch-thick appeal (including exhibits) alleging, among other things, that Judge Richman’s procedural errors had violated Whitaker’s constitutional right to due process. Whitaker had his appellate brief and exhibits lovingly bound in a folder of the kind college professors use for class readers. One week later — an unusually quick response — the First Appellate District Court of Appeal replied to this latest filing, Whitaker’s third challenge to Judge Richman’s April order.

Verdict: denied.

Whitaker has grown accustomed to rejection after two decades of failed motions. And yet he considers the hundreds of hours he has devoted to his lawsuits time well spent. “In the courtroom you learn speaking skills, you learn how to think, you get to use your oral skills, your written skills, your intellect,” he explains. “I’ve been learning a lot.”

It cannot be denied that Fred Whitaker has made his mark on California jurisprudence. His persistence, after all, yielded that 1992 published ruling, which can serve as a precedent in future cases. An article in the Southern California Law Review suggests that he may have been the first to challenge — unsuccessfully, of course — the amended 1990 version of California’s vexatious litigant law.

Asked to name his proudest moment as an amateur lawyer, Whitaker cites the time the US Supreme Court deigned to respond to one of his many briefs. The top court’s response: Quit bothering us! The 1995 ruling, which noted that Whitaker had petitioned the court 24 times in the previous eight years, blabbered on for two pages and instructed the court’s clerk to accept no petitions from Whitaker unless he paid a filing fee, which he couldn’t afford. Justice John Paul Stevens dissented, noting in two sentences that the court should have simply saved its breath and turned Whitaker down flat.

“Even though it was shot down for all of the wrong reasons,” Whitaker says, “the fact that the United States Supreme Court made a ruling — okay, not right or wrong — but the fact that I was able to go all the way to the United States Supreme Court and they ruled against me; the fact that I knew how to get there, and they ruled, even though I know it was wrong, and they ruled against me; the fact that it was able to go all the way through to the United States Supreme Court, and they made their decision, ‘No, you’re wrong.'”

He pauses. “I would say that would be the high point.”


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