Another day in Paradise in the Fourth District Court of Appeal Division Two court. Justice Ramirez denies writ petition on an improper merit standard.

Justice Ramirez, is the Presiding Judge of the Fourth District Division two court. As presiding judge his function is to abide by the basic principles of integrity and justice and to actually address the issues presented based on the evidence and law presented.

Once again Justice Ramirez chose to ignore the law and the required procedural and substantive due process accorded by the 14th amendment, instead preferring to protect the trial court, and to misrepresent the actual content of the writ which dealt with the application of the vexatious litigant statute in family law proceedings and the inability to obtain any redress by the trial court.

In his opinion, filed approx. 10 month after a writ proceeding was presented to the court, Justice Ramirez inferred that the writ proceeding had no merit, without actually addressing the content and the papers presented with the writ proceeding.   One fact that litigants can rely on in this court is that the equitable application of justice does not apply or the possibility of actually addressing what was presented with petitions and appeals. It is more important to engage in judicial discrimination to protect the trial court than applying the basic principles of the law with judicial integrity and impartiality; a concept unheard of in other justice systems that actually address the concept of law and justice in their decisions.

Our California Supreme court in a poignant argument in In re Marriage of Flaherty, (1982) 646 P. 2d 179 – Cal: Supreme Court 1982 has addressed the merit standard of an appeal which also affects writ proceedings.

“The California cases discussing frivolous appeals provide a starting point for the development of a definition of frivolous. Those cases apply standards that fall into two general categories: subjective and objective. (See Cal. Civil Appellate Practice (Cont.Ed.Bar 1966) § 7.11, p. 234.) The subjective standard looks to the motives of the appellant and his or her counsel. Thus, in Simon v. Bemis Bros. Bag Co. (1955) 131 Cal. App.2d 378, 382 [280 P.2d 528], the court rejected a claim that an appeal was frivolous, noting that counsel presented his argument in a “courteous and gracious manner” and seemed to believe “fervently” that he might succeed on the merits. Similarly, the courts have frequently looked at the “good faith” of the appellant and have penalized appellants where the only purpose of the appeal was  delay. (Hall v. Murphy (1960) 187 Cal. App.2d 296, 299 [9 Cal. Rptr. 547]; Union M. Co. v. Chicago Bond. etc. Co. (1918) 36 Cal. App. 585, 587 [172 P. 1113]; Miller v. R.K.A. Management Corp. (1979) 99 Cal. App.3d 460, 469-470 [160 Cal. Rptr. 164]; In re Marriage of Schwander (1978) 79 Cal. App.3d 1013, 1022 [145 Cal. Rptr. 325]; In re Marriage of Millet (1974) 41 Cal. App.3d 729, 732 [116 Cal. Rptr. 390].)

The objective standard looks at the merits of the appeal from a reasonable person’s perspective. “The problem involved in determining whether the appeal is or is not frivolous is not whether [the attorney] acted in the honest belief he had grounds for appeal, but whether any reasonable person would agree that the point is totally and completely devoid of merit, and, therefore, frivolous.” (Estate of Walters (1950) 99 Cal. App.2d 552, 558 [222 P.2d 100]; see also Kunza v. Gaskell (1979) 91 Cal. App.3d 201, 211 [154 Cal. Rptr. 101] [“As a reasonable person, he could not conceivably have anticipated a successful appeal”]; Moore v. El Camino Hosp. Dist. (1978) 78 Cal. App.3d 661, 664 [144 Cal. Rptr. 314]; Guardianship of Pankey (1974) 38 Cal. App.3d 919, 927 [113 Cal. Rptr. 858]. See Anders v. California (1967) 386 U.S. 738, 744 [18 L.Ed.2d 493, 498, 87 S.Ct. 1396] [an appeal is not frivolous if “any of the legal points [are] arguable on their merits”].)

The two standards are often used together, with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay. (See, *650 e.g., Miller v. R.K.A. Management Corp., supra, 99 Cal. App.3d at pp. 469-470; In re Marriage of Schwander, supra, 79 Cal. App.3d at p. 1022; Lawler v. Bannerman (1970) 8 Cal. App.3d 893, 894 [87 Cal. Rptr. 756].)[6]

(5) Both strands of this definition are relevant to the determination that an appeal is frivolous. An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts  attention from the already burdensome volume of work at the appellate courts. Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit. (See Estate of Walters, supra, 99 Cal. App.2d at pp. 558-559.)

However, any definition must be read so as to avoid a serious chilling effect on the assertion of litigants’ rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of a fear of reprisals. Justice Kaus stated it well. In reviewing the dangers inherent in any attempt to define frivolous appeals, he said the courts cannot be “blind to the obvious: the borderline between a frivolous appeal and one which simply has no merit is vague indeed…. The difficulty of drawing the line simply points up an essential corollary to the power to dismiss frivolous appeals: that in all but the clearest cases it should not be used.” (People v. Sumner, supra, 262 Cal. App.2d at p. 415.) The same may be said about the power to punish attorneys *651 for prosecuting frivolous appeals: the punishment should be used most sparingly to deter only the most egregious conduct.”

Simply put folks, the objective standard defining the merit of any appeal is whether “any of the legal points [are] arguable on their
merits”, which was clearly presented to the court with the petition.  Perhaps it is time that Justice Ramirez like his colleague in the Federal Appeal Court, who chose integrity and impartiality and admitted his mistakes, step down from his position as the basic principles of equity and justice do not apply in this court.  The Appellate  Courts in this country routinely rely on the fact that litigants do not have any avenue for redress as once a writ petition is dismissed the only avenue available is the CA supreme court which routinely chooses not to accept cases, a concept that is prejudicial to litigants as the U.S. constitution accords litigants the first amendment right to redress.

“Mistakes” are severely prejudicial to the litigant in question as any person who has a basic understanding of the English language can see that the actual “mistake” does not address the content of any appeal or writ proceeding in the Fourth District Division two court.  In the same manner Justice Ramirez denied a motion to recall a remittitur in a different proceeding by providing “subjective answers” instead of modifying the underlying opinion which did not specify said “answers” defeating the purpose of a motion to recall a remittitur.



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