SB 738, the Reclaim Act, amends California’s vexatious‑litigant statute and the Family Code to curb litigation abuse committed against domestic‑violence survivors. The bill expands the circumstances that can trigger a vexatious‑litigant designation (removing the requirement that a restraining order remain in effect, and adding post‑conviction conduct) and creates new limits on discovery and filing rights for litigants found to be engaging in abusive litigation.
Practically, the bill prohibits vexatious plaintiffs who are also subject to restraining orders from seeking information protected by those orders without prior judicial authorization, lets defendants ignore prohibited discovery requests without filing protective motions, and authorizes ex parte orders to enjoin litigation abuse. These changes give judges clearer tools to stop repetitive or retaliatory lawsuits but also press courts to weigh access to justice against survivor safety in new ways.
At a Glance
What It Does
The bill broadens the definition of 'vexatious litigant' to cover persons who file frivolous or abusive litigation after a restraining order has been issued—even if that order has expired, been modified, or terminated—and to cover persons convicted of domestic‑violence offenses who then sue their victims. It adds a new statutory bar on seeking discovery covered by a protective order without court permission and authorizes ex parte orders against 'litigation abuse.'
Who It Affects
Family law courts, judges, and clerks will face new procedural requests and standards; survivors of domestic violence and victims of convicted abusers will gain procedural protections; pro se litigants (particularly respondents to protective orders) and attorneys representing them will see added hurdles and potential discovery limits.
Why It Matters
The Reclaim Act shifts how courts treat post‑relationship litigation: it privileges protective‑order scope and survivor safety over unfettered discovery and paper filings by restrained or convicted parties. For lawyers and compliance officers, it alters discovery strategy, evidentiary planning, and the calculus for representing (or opposing) self‑represented litigants in family and related civil matters.
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What This Bill Actually Does
SB 738 rewrites parts of the Code of Civil Procedure and Family Code to treat certain lawsuits filed by alleged abusers as a continuation of domestic abuse. First, it revises the vexatious‑litigant definition to capture people who, after being the subject of a domestic violence restraining order, file litigation against the protected person that a court finds frivolous or intended to harass, even if the restraining order is no longer active.
It also adds a separate ground: a party convicted (including via nolo contendere) of a domestic‑violence offense who then sues the victim can be declared vexatious on the same standards. The bill waives filing fees for protected persons or victims who move to have the litigant declared vexatious on these grounds.
Second, the bill creates an explicit discovery restriction: a plaintiff who is both vexatious (under the new domestic‑violence‑related grounds) and subject to a protective order cannot seek information covered by that order unless the court first authorizes disclosure for good cause. The statute lays out factors judges must consider—importance and relevance, alternative means of obtaining the information, and fairness—effectively raising the bar for discovery that would circumvent protective orders.
Critically, the statute lets a defendant ignore discovery requests that clearly violate this rule without filing a protective order and shields that defendant from sanctions if they reasonably relied on the protective order in refusing to comply.Third, the Family Code changes codify limits on discovery in domestic violence proceedings, require courts to use the least intrusive discovery methods when any discovery is allowed, and add 'litigation abuse' to the list of behaviors an ex parte protective order may enjoin. The bill permits petitioners to seek court orders preventing respondents from using discovery tactics that appear designed to circumvent a protective order.
Together, these provisions package a set of procedural tools intended to reduce legal harassment: designation as vexatious, upfront discovery restrictions, and ex parte authority to stop litigation tactics that function as ongoing abuse.Finally, SB 738 instructs courts to document written reasons when denying protection motions and clarifies service and continuance rules in restraining order hearings when personal service is difficult. The changes are procedural rather than substantive remedies: they constrain litigation mechanics and evidence‑gathering to better protect survivors, while leaving the underlying causes of action and rights to seek relief intact, subject to the new barriers for those judicially characterized as abusing the process.
The Five Things You Need to Know
The bill removes the requirement that a restraining order still be active; a vexatious‑litigant designation can be based on litigation that occurs while a restraining order is in effect, after it expires, or after it has been modified or terminated.
SB 738 adds a conviction‑based ground: a person convicted of a domestic‑violence crime (including a nolo contendere plea) who then files frivolous or abusive litigation against the victim can be declared a vexatious litigant; victims may petition without paying a fee.
New Code of Civil Procedure Section 391.9 bars a vexatious plaintiff who is subject to a protective order from seeking discovery covered by that order unless the court first finds good cause using factors the statute prescribes.
The statute allows a defendant to disregard a discovery request that violates the protective‑order bar without filing a protective order motion, and it forbids the court from sanctioning a defendant who in good faith disregarded such a request even if the court later rules the request was permissible.
Family Code amendments let courts use ex parte orders to enjoin 'litigation abuse' (including commencing frivolous litigation to harass or maintain contact) and require discovery in domestic violence cases to be limited to the least intrusive methods and only upon a showing of good cause.
Section-by-Section Breakdown
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Expands vexatious‑litigant definition to cover post‑order and post‑conviction litigation
This section revises the statutory list of who qualifies as a vexatious litigant by adding two domestic‑violence‑focused grounds. Paragraph (5) now covers persons who, after issuance of a restraining order following a hearing, file litigation against the protected person that a court determines is frivolous, abusive, or intended to harass or maintain contact; the trigger applies even if the protective order is no longer active. Paragraph (6) creates a parallel ground for people convicted of domestic‑violence crimes who then sue their victims. Practically, these additions allow protective‑order respondents and convicted abusers to be placed under prefiling or security conditions where judges find the conduct meets the new standard.
Fee waiver and who may move to require security or dismissal
Section 391.1 is adjusted to limit who may bring a motion for security or dismissal under the new domestic‑violence grounds: only the person protected by the restraining order may move under paragraph (5), and only the victim in the criminal case may move under paragraph (6). The statute explicitly waives filing fees for these motions. That narrows standing for these particular motions and lowers the procedural cost for survivors and victims to seek court intervention against abusive filers.
Prohibits discovery targeting information shielded by a protective order without court approval
The new Section 391.9 prevents a plaintiff who is both a vexatious litigant under the new domestic‑violence provisions and the subject of a restraining order from requesting discovery that would violate that order unless the court first authorizes disclosure on a showing of good cause. The statute sets specific factors for judges to weigh—relevance, availability by other means, and fairness—and establishes a safe harbor for defendants who ignore such discovery requests in good faith. This provision changes discovery practice by shifting the burden onto plaintiffs seeking sensitive information and reducing defensive motion practice for protected parties.
Tightens discovery regime in domestic‑violence proceedings and defines 'litigation abuse'
Amendments to Section 6309 emphasize that discovery in domestic‑violence restraining order proceedings is allowed only for good cause and must be the least intrusive means necessary. The section expands legislative findings about litigation abuse, directs courts to consider trauma and protective orders when deciding whether to permit discovery, and authorizes continuances or modifications of orders if discovery is allowed. By codifying these limits, the bill pushes courts to prioritize rapid protective adjudication and minimize discovery‑based harassment.
Adds 'litigation abuse' to enjoined conduct and bars discovery that would circumvent protective orders
Section 6320’s list of behaviors that can trigger an ex parte protective order now explicitly includes 'engaging in litigation abuse' and 'commencing litigation that is frivolous or solely intended to abuse, intimidate, or maintain contact with the other party.' Section 6340 complements this by giving petitioners a route to request a court order preventing a respondent from seeking discovery when that discovery would appear to circumvent the protective order. Together these provisions authorize rapid, preventive relief against courtroom tactics used as continuations of domestic abuse.
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Explore Justice in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Domestic‑violence survivors who obtain protective orders — they gain statutory backing to block discovery and filings that function as ongoing harassment, and can seek vexatious‑litigant relief without paying filing fees.
- Victims of convicted domestic‑violence offenders — the bill authorizes them to petition the court to limit litigation by their convicted abusers and to obtain prefiling controls.
- Judges and court staff handling family law cases — they receive clearer statutory standards and an explicit safe harbor for defendants refusing improper discovery, which can streamline handling of abusive filings and reduce ancillary protective motions.
Who Bears the Cost
- Respondents to protective orders and persons convicted of domestic‑violence offenses who later litigate — they face heightened risk of being declared vexatious and may be required to post security or obtain court leave before filing.
- Pro se litigants with legitimate claims who previously relied on broad discovery — they may encounter higher thresholds and extra procedural hurdles if a judge suspects prior abusive conduct, increasing time and expense to pursue claims.
- Trial courts and clerks — judges must apply new discretionary standards (good cause, frivolousness, litigation abuse) and manage more fee‑waiver motions and ex parte requests, potentially increasing administrative workload and demand for training.
Key Issues
The Core Tension
The central dilemma is balancing survivor safety against access to the courts: the bill empowers judges to stop litigation that functions as continuing abuse, but those same gatekeeping mechanisms can delay or deter legitimate claims—especially from unrepresented litigants—unless courts apply the new standards with careful, consistent safeguards.
SB 738 is targeted at a real problem—using litigation to perpetuate abuse—but it imports several implementation challenges. The statutory standards use terms like 'frivolous,' 'abusive,' and 'solely intended to abuse, intimidate, or maintain contact,' which are fact‑intensive and inherently discretionary.
Judges will need to develop evidentiary practices and local rules for evaluating when litigation serves as ongoing domestic abuse rather than legitimate dispute. That creates room for inconsistent application across courts and for fact‑specific appeals that could swamp trial dockets.
The discovery safe harbor for defendants (allowing them to ignore requests without first moving for a protective order) reduces immediate defensive burdens, but it also raises questions about litigants’ obligations to meet and confer and about how courts will resolve disputes when a plaintiff later shows good cause. There is a real chilling risk: parties with meritorious, novel, or complex claims—especially those without counsel—may be deterred or delayed when judges must first vet discovery requests against protective orders.
Conversely, without a higher bar here, abusive litigants can continue to weaponize broad discovery practices. The statute shifts weight to judicial gatekeeping, which helps survivors but requires more judicial time and clearer local procedures.
Finally, expanding the scope of enjoined conduct under protective orders to include litigation abuse edges into criminal‑enforcement terrain because violating protective orders can carry criminal penalties. That raises separation‑of‑powers and due‑process concerns when ex parte orders are used to preemptively bar lawful court access.
Implementing the bill will require training, model orders, and perhaps Judicial Council guidance to balance survivor safety against constitutional protections for access to courts and speech.
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