Unreported / Non-Citable
Background
Fabian V. Filipp appealed from a San Diego County family court order declaring him a vexatious litigant under Code of Civil Procedure section 391 and imposing a prefiling restriction. Kristi Filipp, the respondent and moving party below, did not file a respondent's brief, but the appellate court decided the merits. The parties' family court register of actions covered proceedings from November 2019 through the end of 2025, including repeated disputes over custody, visitation, child support, and spousal support.
The family court had denied Kristi's earlier request to declare Fabian a vexatious litigant in May 2023, finding she did not meet the burden of proof required under section 391, subdivision (b). After a custody and support trial, it issued a final decision in February 2024 and granted Fabian a fee waiver. Kristi renewed her request in July 2024, and the hearing was set for April 8, 2025. In August 2024, Fabian used the form for a party with a fee waiver to request an official court reporter for that hearing. The hearing nevertheless proceeded without a reported record, and the court granted the motion and prohibited Fabian from filing new California litigation without judicial approval.
On appeal, Fabian challenged the statutory basis for the designation, the counting of proceedings in which he had counsel, and several procedural matters, including the absence of a reporter. He used a settled statement, but it initially contained only the general ruling. The family court later modified it to identify docket entries and summarize its rulings; the modified statement identified nine proceedings, and Fabian was represented by counsel in all but one. The appellate court granted augmentation for specified requests, orders, and the reporter-request form, while denying augmentation as to other documents whose relevance Fabian had not explained.
The Court’s Holding
The Court of Appeal reversed on the reporter issue and expressly did not reach the substance of the vexatious litigant order. It applied Family Violence Appellate Project v. Superior Court, decided by the California Supreme Court while this appeal was pending. That decision requires courts, upon request, to provide indigent litigants meaningful access to an official verbatim record in all cases, using electronic recording when an official reporter or official reporter pro tempore is unavailable. The obligation is ministerial rather than discretionary and is not limited to proceedings involving fundamental rights or liberty interests.
The rule applied to this nonfinal appeal. Fabian had received a fee waiver before the April 2025 hearing and had timely requested a reporter. If the family court could not supply an official reporter without charge, it was required to use electronic recording when necessary to provide the verbatim record. The availability of a settled statement did not eliminate that duty. Nor did Fabian have to satisfy an absolute standard of indigency or submit a separate in forma pauperis application beyond the record establishing his inability to afford a private reporter.
Assuming without deciding that harmless-error principles applied, the court found the error prejudicial. Even as modified, the settled statement lacked a condensed narrative of the oral proceedings and a concise factual summary of relevant evidence and testimony. The family court's minute order also gave no reasons and did not identify the subdivision of section 391 it applied. Of the nine proceedings identified in the modified statement, Fabian had counsel in all but one, making any determination that he effectively litigated through controlled attorneys especially fact-dependent. Without a transcript or verbatim electronic recording, the appellate court could not fairly review the designation or imply sufficient supporting findings.
Key Takeaways
- A fee-waived litigant who timely requests an official verbatim record must receive a reporter or, when necessary and no reporter is available, electronic recording.
- The availability of an agreed or settled statement does not eliminate the trial court's ministerial duty to provide meaningful access to a verbatim record.
- This decision reversed on the missing-record issue and did not decide whether Fabian's litigation conduct substantively qualified him as a vexatious litigant.
- The incomplete settled statement and unexplained minute order prevented meaningful appellate review, particularly because most listed proceedings involved represented counsel.
- The matter was remanded for a new hearing with a reporter at no charge or electronic recording if a reporter is unavailable, and Fabian was awarded appellate costs.
Why It Matters
The opinion applies the California Supreme Court's expanded verbatim-record guarantee to a family law vexatious litigant hearing. It treats the duty as applicable to pending, nonfinal appeals and rejects any limitation to cases involving fundamental rights or liberty interests. The practical remedy is a new hearing with a reliable record, not an appellate determination of whether the statutory designation was substantively justified.
The prejudice analysis also shows why docket summaries and a modified settled statement may not replace a verbatim account. Where a designation could depend on detailed findings about a party's conduct and counsel's control of the litigation, an appellate court needs enough of the actual proceedings to evaluate those issues. The underlying declaration and prefiling order were reversed, while Fabian's statutory and other procedural challenges remained undecided.