Review proceeding seeks to address the unequal merit standards of appeals/writs and that the vexatious litigant statute cannot be applied in CA family law cases.

PETITION FOR REVIEW

To the Honorable Chief Justice of the State of California and to the Honorable Associate Justices of the Supreme Court of the State of California

Petitioner, xxxxxx, hereby petitions this court for a review of the Fourth District Court Division two appeal order in case xxxxxx, by Justice Ramirez, filed 6/5/2014. Appellant presents a case of first impression for review in this State, with issues of state wide significance relating to the merit procedures of state appeal courts and issues affecting every parent in this State addressing the unconstitutional nature of a vexatious finding where a vexatious finding was entered in one family law case and where a parent is prohibited from filing any motions or pleadings in the family law case.

I. ISSUES PRESENTED FOR REVIEW

A. Whether the court of appeal can allocate a merit standard to a writ proceeding as the determining basis for addressing the petition as the Vexatious litigant statute (VLS) statute does not define writ proceedings or notices of appeal as new litigation.

B. Whether the vexatious litigant statute is unconstitutional and can be applied in one family law court case or resulting appeal court proceedings and whether the Court of Appeal’s current holding violates the equal protection standard defined in People v. Wende, (1979) 600 P. 2d 1071; Anders v. California, (1967) 386 U.S. 738.

C. Whether a litigant can challenge the basis of the original vexatious finding in one family law case based on additional circumstances and in the interest of justice as accorded by the vexatious litigant statute.

II. NATURE OF THE CASE

A. INTRODUCTION
Appellant hereby presents a petition for writ of review requesting reversal of appellate court’s writ dismissal which addressed the vexatious finding in place in case Ixxxxx.
The vexatious finding was entered in a family law case on 8/9/2010 based on a noticed motion filed by the real party of interest where the motion did not cite any litigation as defined by CCP§ 391 (a) which could be construed as vexatious. The court after taking the matter under submission at the hearing on 6/22/2010 issued a finding on 8/9/2010 declaring petitioner vexatious in one family law case citing motions, declarations and granted restraining orders as the basis of the finding, prohibiting that petitioner file any papers without approval of the presiding judge.
Petitioner filed an appeal and the 4th district court of appeal issued a remittitur in case xxxxx citing that the trial court be directed to modify the term papers in the original vexatious finding to comply with the definition of litigation pursuant to CCP § 391 (a). Petitioner applied to vacate the vexatious injunction pursuant to CCP § 391.8 (a) (c) on 2/14/2013 which the trial court summarily denied. Petitioner filed an appeal on 2/15/2013 which the Fourth District court of appeal dismissed; without addressing the merit of the appeal citing a number of appeals and writ proceedings in the court of appeal without addressing the actual content of the application for the appeal that petitioner was addressing. The trial court has categorically refused that petitioner file any papers, motions in the family law case. Petitioner filed the extra-ordinary writ proceeding as a result which requested the court of appeal to vacate the vexatious finding in the interest of justice as the trial court refuses that petitioner file any motions or pleadings in her family law case, cited the unconstitutional nature of the vexatious litigant application in family law proceedings and cited a change of circumstance in the original vexatious finding.

B. PROCEDURAL HISTORY

1. On 4/23/2010 the real party of interest filed a noticed motion requesting that petitioner be declared vexatious   (exhibit 2, supplemental exhibits to writ petition filed  xxxxx). The basis of his motion was the civil case in INC INC1000273 where Petitioner is the plaintiff and the real party of interest is a defendant. The real party of interest did not cite any specific motions and  pleadings or cases as the basis for his request.
2. Petitioner submitted her response opposing the motion (exhibit 3, supplemental exhibits to writ petition xxxx3) and a noticed hearing was held on 6/22/2010 where Judge Asberry specifically cited Petitioner’s granted Temporary restraining orders against the real party of interest  (exhibit 4 supplemental exhibits to writ  petition xxxxxx3) and took the matter under submission and issued her finding on 8/9/2010  (exhibit 5 supplemental   exhibits to writ petition Exxxxx3 ).
3.  Petitioner filed a motion to quash and dismiss the vexatious finding which was denied on 9/7/2010 by Judge  Cahraman (exhibit 6 supplemental exhibits to writ petition E059393).  Petitioner submitted a notice of appeal from the  denied order (exhibit 7 supplemental exhibits to writ petition E059393).
4.  On 1/21/2011 Judge Asberry entered a prefiling order against Petitioner attaching the vexatious finding of   8/9/2010 (exhibit 8 supplemental exhibits to writ petition xxxxx) while an appeal was pending on the action.
5. The court during that time prohibited Petitioner from filing any “papers” including proof of service,  declarations and having subpoenas issued citing declarations, proof of service and subpoenas as “new  litigation”.
6. The court of appeal issued its remittitur in case E015037 citing that section 391, was not intended to refer to   papers, but as litigation defined under CCP  § 391 (a) and directed the respondent court to modify its ruling.  Respondent court modified its ruling on 1/31/2013 (exhibit 1 supplemental exhibits to writ petition E059393 ).
7. On 2/14/2013 petitioner filed a motion to vacate the vexatious injunction in case Ixxxxx citing the requirements as defined in the  newly defined CCP §391.8 c statute namely that the vexatious prefiling order should be vacated upon a material change of facts and in the interest of justice.
8.  The trial court denied petitioners motion and petitioner filed an appeal on 2/15/2013.
9.   Presiding Justice Ramirez stayed the appeal with a stay order and dismissed appellant’s appeal of her application to vacate the prefiling order (cxxxxx) which cited a material change of fact  of the original order and that the ends of   justice would be served citing the appeal and writs that she has filed since she was “deemed vexatious”  under the standard of Luckett v. Panos, (2008) 161 Cal. App. 4th 77, 73 Cal. Rptr.3d 745, (Ct. App. 2008).
10. Appellant presents that this is a prejudicial error in this case as the standard defined by CCP § 391.8 c is the one that applies as appellant cited a material change of circumstance upon the initial order and that the ends of justice would be served. The standard defined in CCP § 391.8 refers to the change of circumstance criteria of the original vexatious motion, PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 978,  confirmed by  Stoltz v. Bank of America, (1993) 15 Cal. App. 4Th 217, 224, which defines the vexatious  period as 7 years from the date the noticed motion was filed.
11. Riverside Superior Court Presiding Judge Cope has used the vexatious litigant statue to deny restraining orders under the domestic violence act when Petitioner quite clearly presented a threat of bodily harm against her which occurred in front of the children and presented the continuous pattern of domestic abuse against Petitioner involving the minor  children allowing the real party of interest to escalate out of control and continue with his destruction of the   parent child bond with no relief to petitioner and the minor children.
12. Presiding Judge Cope has directed the clerks of the Riverside Superior Court not to file any “papers” from  Petitioner, specifying that they all need to be received and forwarded which include declarations (exhibit 9 received on the 23rd of July 2013,supplemental exhibits to writ petition xxxx3) and proof of service (exhibit 10, supplemental exhibits to writ petition xxxxx3)  that are submitted with a file on demand request.  The court is ignoring file on demand requests, a procedural request that a litigant has the right to implement and did not file the declaration on the received date (exhibit 11 supplemental exhibits to writ petitionxxxx).
13.  Presiding Judge Cope is refusing to address the exparte abduction risk motion submitted by Petitioner, which at a minimum requested an order that the real party of interest not leave the County of Riverside and San Bernardino, as there is a very real risk of abduction, as the real party of interest has the means of leaving the area and staying in an undisclosed location and Petitioner would have no means of recovering the children  with the real party of interest’s history of disappearing with the children. The motion was received and    forwarded on the 23rd of July 2013 after the real party of interest had once again disappeared with the minor   children (exhibit 12, supplemental exhibits to writ petition xxxxx) and not filed.
14.  Respondent Court is using the alleged vexatious standing to perpetuate the harmful status quo and to prevent  that she have ANY means of redress, clearly displaying invidious discrimination against Petitioner, demonstrating that is is an inconvenient forum where Petitioner cannot obtain her first amendment right to  governmental redress or any decorum of due process guaranteed under the 14th amendment.
15.  Respondent court has a history of filing family law litigation of other litigants that were deemed vexatious one year  after it was received and forwarded to the presiding judge’s office, in effect, placing an involuntary stay on  trial court proceedings, by prohibiting that the litigant has any recourse the best interest of the child standard or to proceed on appeal (exhibit 13, supplemental exhibits to writ petition; xxxxx ; which shows the cover page of a  noticed motion dated May 2012 which was only filed in May 2013 in another case of a party who was   declared a vexatious litigant, where the  judicial officer involved scribbled summarily denied (SD) for the motion to modify and change custody and visitation).
16. The writ proceeding that is the subject of this review was filed on 8/15/2015 (Writ xxxxx) and specifically dealt with a number of issues pertaining to the vexatious litigant statue including the unconstitutionality of its application in family law proceedings, the fact that a prejudicial prior error by Justice Ramirez created a miscarriage of justice towards appellant as a prior appeal was dismissed based on an improper circumstances; the fact that the trial court refuses to abide by the Court of appeal’s own remittutur and that the vexatious finding needed to be dismissed based on change of circumstance in the original order and in the interest of justice. Justice Ramirez chose not to address the petition in its entirety and summarily denied it on 6/5/2014 although substantial evidence attached to the petition showed that the trial court does not adhere to the court of appeal remittitur.
Petitioner seeks review from the denied petition order of 6/5/2014 incorporated by reference as exhibit A.
Petitioner has included Justice Ramirez order prejudicially dismissing Petitioner’s prior appeal as exhibit B.

III. WHY REVIEW SHOULD BE GRANTED.

California Rules of court 8.500 (a) specifies that any party has the statutory right to file a petition for review of ANY decision in the Court of appeal including any interlocutory order. California rules of court (Rule 8.500 (b)) allows review in order to secure uniformity of decision or to settle an important question of law.
This case is a case of first impression in the State of California with enormous public interest and state wide significance as it raises substantial discrimination prohibited by the 14th amendment right to equal protection under the law and raises an important question of law relating to the merit procedures of State appeal courts and the ability of parents to file motions and pleadings in one family law case; that will affect any parent who is the subject of a vexatious finding in one family law case.

IV. LEGAL ARGUMENT

A. Review required to determine whether the court of appeal can allocate a merit standard to a writ proceeding as the determining basis for addressing the petition as the vexatious litigant statue does not define writ proceedings or notices of appeal as new litigation.

Justice Ramirez denied the extra-ordinary writ petition citing lack of merit although he failed to address the entire content of the petition. Petitioner had presented circumstances in her petition that cannot be corrected on appeal, also citing that Justice Ramirez erroneously dismissed the prior vexatious litigant appeal in this case citing appeals and writs she had filed in the court of appeal, (incorporated by reference as exhibit B), and did not address the merit standard of the written application that this court insists on with each and every notice of appeal, staying each appeal until it rules on the merit of the application. The court’s actions constitute harm and prejudice toward appellant which cannot be corrected on appeal  Valley Bank of Nevada v. Superior Court (1975) 15 Cal. 3d 652 [125 Cal.Rptr. 553, 542 P.2d 977]; Roberts v. Superior Court (1973) 9 Cal. 3d 330 [107 Cal.Rptr. 309, 508 P.2d 309])
This supreme court has also defined the merit standard of notices of appeals which is applicable to writ proceedings as the merit standard relates to the merit review standard of an appellate court. In re Marriage of Flaherty, (1982) 646 P. 2d 179 – this Supreme Court has addressed the merit standard of appellate 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].)

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 appellate jurisdiction vested in the Courts of Appeal by article VI, section 11, of the California Constitution encompasses review by extraordinary writ as well as review by direct appeal. (Powers, supra, at pp. 92-93, 40 Cal.Rptr.2d 839, 893 P.2d 1160 (plur. opn. of Kennard, J.); id. at p. 122, 40 Cal.Rptr.2d 839, 893 P.2d 1160 (cone. opn. of George, J.).)

The United States Supreme Court has declared that the “essential criterion of appellate jurisdiction” is “that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.” (Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, 175, 2 L.Ed. 60, 73.) Applying this definition, the high court has concluded that a court exercises appellate jurisdiction when it reviews a lower court’s decision in ruling on a petition for a writ of habeas corpus. (Ex Parte Watkins (1833) 32 U.S. (7 Pet.) 568, 572, 8 L.Ed. 786, 788.) Courts in other states have defined “appellate jurisdiction” similarly. (See Powers, supra, 10 Cal.4th 85, 92-93, 40 Cal.Rptr.2d 839, 893 P.2d 1160 (plur. opn. of Kennard, J.), and cases cited therein.)

Thus, the ordinary and widely accepted meaning of the term “appellate jurisdiction” is simply the power of a reviewing court to correct error in a trial court proceeding. By common understanding, a reviewing court may exercise this power in the procedural context of a direct appeal or a writ petition.

Pursuant to California rules of court 8.25 appellant presented the writ petition for filing on the 15th of August 2013 and the document is deemed filed on the date when it is received by the clerk. The time frame for the filing is governed by the underlying action of the litigation presented. Litigation by definition in the CCP § 391 statute is not defined as writ or notices of appeal.
In this writ proceeding Appellate had presented that the vexatious litigant application in family law proceedings was unconstitutional, that the vexatious litigant prefiling order against her needed to be dismissed in the interest of justice as the trial court refuses to address any litigation that appellate is involved in under the best interest of the child standard, that the vexatious finding of 8/9/2010 was improper and that the prior dismissal of the appeal in this case by Justice Ramirez was prejudicial and discriminatory towards petitioner. Extra-ordinary circumstances that justified that the appeal court revises and corrects the proceedings in a cause and that would serve no purpose in being delayed justified that the writ petition be granted In re Albert B. (1989) 215 Cal.App.3d 361 and In re Kristin W. (1990) 222 Cal.App.3d 234).

In addition the Fourth District Court of appeal currently insists on the filing of an application demonstrating the merit of a writ proceeding or a notice of appeal and stays the litigation with a stay order before the record of an appeal has been filed and denies the appeal before the record on appeal has been filed (exhibit B). The current holding is prejudicial to appellant and displays invidious discrimination against a certain class of litigants violating the equal protection standard developed by this court in People v. Wende, (1979) 600 P. 2d 1071, (discussed in Review section B below).

The CCP § 391.7 statute does not specify that an application demonstrating the merit of an appeal or filing has to be filed, nor that there is any specific format to an “application”. It merely specifies that an allegedly vexatious litigant has to obtain “leave” from the presiding judge but does not specify whether that leave is oral or written. The word application is missing from the statute and is not incorporated by reference in any capacity as an application that an allegedly “vexatious” litigant has to submit to the court. The only filing that is referenced in the vexatious statute is whether the action to be filed has merit and the resulting order from the presiding justice pursuant to CCP § 391.7. Similarly, there is no terminology contained in the vexatious statute that allows a court to decide the merit of an application, (which is not referenced in any capacity in the VLS statute), as the basis for allowing an appeal or a writ proceeding as the notice of appeal or writ proceeding is not referenced as new litigation in the VLS statute.
Stay proceedings were addressed in a published opinion of a writ of supersedeas, which specified the following: “Special proceedings are subject to the stay provisions of Part 2 ONLY if the statute creating the special proceeding expressly incorporates them.”The court held that the order was not automatically stayed because the proceeding wasn’t really an “action” for purposes of the rules governing stays and undertakings on appeal in a civil “action.” (Code Civ. Proc. § 22-23.) In fact, the parties agreed that the involuntary dissolution suit was a “special proceeding” under Code of Civil Procedure section 23. Since the stay provisions (Code of Civil Procedure sections 916 et seq.) of Part 2 of the Code apply only in civil actions, the decree was not automatically stayed; Veyna v. Orange County Nursery, Inc., (2009) 170 Cal. App. 4Th 146.  The same concept applies to the stay system that the appeal court has creatively implemented with anyone that has been declared vexatious. First of all by implementing a stay the court of appeal recognizes the automatic stay provision of CCP § 916. More importantly the vexatious litigant statute quite categorically does not provide for a stay mechanism of an appeal, suggesting a fundamental violation of due process and equal protection of the law under the fourteenth amendment, highlighted by the discriminatory application of procedures for certain litigants who have been accorded the Wende standard (People v. Wende, (1979) 600 P. 2d 1071; Anders v. California, (1967) 386 U.S. 738) discussed below

B. Review required to determine whether the vexatious litigant statute is unconstitutional and can be applied in one family law court case or resulting appeal court proceedings and whether the Court of Appeal’s current holding violates the equal protection standard defined in People v. Wende, (1979) 600 P. 2d 1071; Anders v. California, (1967) 386 U.S. 738.

Two California supreme court proceedings have thought to address the Vexatious litigant statute ( Moran v. MURTAUGH MILLER MEYER & NELSON, (2007) 55 Cal. Rptr. 3D 112; Shalant v. Girardi, (2011) 253 P. 3d 266) statute but none of them addressed the application of the VLS statute in Family law cases or in the court of appeal.

When construing a constitution, courts view as the paramount consideration the intent of those who enacted the provision at issue. (Davis v. City of Berkeley (1990) 51 Cal.3d 227, 234, 272 Cal.Rptr. 139, 794 P.2d 897.) To determine that intent, courts look first to the language of the constitutional text, giving the words their ordinary meaning. (Ibid.; see also Bowens v. Superior Court (1991) 1 Cal.4th 36, 48, 2 Cal.Rptr.2d 376, 820 P.2d 600; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)

The fourteenth amendment of the United States specifically states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.

In Anders v. California, (Anders v. California, (1967) 386 U.S. 738) the United States Supreme Court held unconstitutional the no-merit letter procedure the Court had set forth in In re Nash (1964) 61 Cal.2d 491 [39 Cal. Rptr. 205, 393 P.2d 405], for handling appeals by indigent defendants. The court concluded that the no-merit letter procedure failed to satisfy the constitutional requirement of substantial equality and fair process under the Fourteenth Amendment to the Constitution of the United States. In particular, the court found the procedure defective because it did not require a finding by the court that the appeal was frivolous and because it did not require counsel to act in any greater capacity than that of amicus curiae.

Counsel must act “in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. … His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned…. On the other440*440 hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” (386 U.S. at p. 744 [18 L.Ed.2d at p. 498].)

In People v. Feggans (1967) 67 Cal.2d 444 [62 Cal. Rptr. 419, 432 P.2d 21], the court responded to the Supreme Court’s mandate as follows: “Under Anders, regardless of how frivolous an appeal may appear …, a no-merit letter will not suffice. Counsel must prepare a brief to assist the court in understanding the facts and the legal issues in the case. The brief must set forth a statement of the facts with citations to the transcript, discuss the legal issues with citations of appropriate authority, and argue all issues that are arguable…. If counsel concludes that there are no arguable issues and the appeal is frivolous, he may limit his brief to a statement of the facts and applicable law and may ask to withdraw from the case, but he must not argue the case against his client. Counsel is not allowed to withdraw from the case until the court is satisfied that he has discharged his duty to the court and his client to set forth adequately the facts and issues involved. If counsel is allowed to withdraw, defendant must be given an opportunity to present a brief, and thereafter the court must decide for itself whether the appeal is frivolous. [Citations.] If any contention raised is reasonably arguable, no matter how the court feels it will probably be resolved, the court must appoint another counsel to argue the appeal.” (People v.Feggans, supra, 67 Cal.2d at pp. 447-448), People v. Wende, (1979) 600 P. 2d 1071.
Courts cannot discriminate between the application of what is considered to be substantive and procedural due process to satisfy the stringent equal protection standard of the fourteenth amendment among certain litigants and discriminate among family law litigants and appellants. To do so would be utterly prejudicial to one class of litigants, in this case family law litigants and appellants, where a different standard has been developed to “deem” a matter frivolous rather than addressing the content and merit of the appeal or writ proceeding or matter filed in a family law case or appeal court case. The Federal Supreme Court has already struck down this type of invidious discrimination displayed by a court of appeal and a district court who engages in discrimination in the case of In Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 where the appellant had to demonstrate the merit of an appeal for the purpose of reinstating the appeal, before the record on appeal had been filed.
Litigation defined under the vexatious litigant statute is defined under CCP § 391 (a) which specifies that  “Litigation” means any civil action or proceeding, commenced, maintained or pending in any state or federal court“. The basis of the vexatious classification is defined by : CCP § 391b (1)” In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (I) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.

The vexatious litigant statute (VLS) was never intended to be applied to family court proceedings which are dynamic where the best interest of the child standard is the standard that governs proceedings a holding that was also explained in Shalant v. Girardi, (2011) 253 P. 3d 266), (discussed below).  A trial court may not place an involuntary stay on proceedings, refusing to file litigation and prohibiting that the best interest of the child standard is addressed. The vexatious litigant statute itself does not define the merit standard under which litigation in family law proceedings is to be granted nor does it define the time frame, a crucial component in the evolving, fluid and dynamic field of family law.  The merit standard and time frame is based on the underlying action upon which the litigation is based. In the case of domestic violence restraining order the merit standard is  the domestic violence act under CA family code § 6200 and once the merit of the action is recognized under the VLS the temporary restraining order should be issued under CA family code § 6300.

In the case of contempt of court cases the merit standard is whether the charging affidavit of an order to show cause contained  facts setting forth the type of order violated, the date the order was issued, how the order was violated, and when the violation occurred. Jurisdiction to adjudicate a contempt ordinarily exists only if the charging affidavit alleges evidentiary facts showing a prima facie case of contempt. Code of Civil Procedure § 1211(a). Once the contempt is granted on its merit the contempt statute automatically issues an order to show cause for  contempt which needs to be adjudicated.

Order to show causes the request a modification of custody and visitation need to addressed according to the legislative standard that defines the best interest of the child standard namely family code § 3020, 3011, 3010, 3004, 3044, 3080 and 3040.
The procedural requirements for an Exparte Request for order are governed by CA rule of court 1.20 a, and Rule 3.1205.  which specifies: “ Notwithstanding the failure of an applicant to comply with the requirements of rule 3.1203, the clerk must not reject an exparte application for filing and must promptly present the application to the appropriate judicial officer for consideration.  Promptly means immediately on the same date that it is filed and to the judicial officer assigned to the case”.

The scope of discretion always resides in the particular law being applied by the court, i.e., in the `”legal principles governing the subject of [the] action ….”‘” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 337 [67 Cal.Rptr.3d 286], citing City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 [255 Cal.Rptr. 704] and County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778 [25 Cal.Rptr.2d 681] [“range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted”].)

In the case of the Vexatious litigant statue (VLS) the underlying merit standard is the action upon which the litigation is based. The legislature by omission did not intend to apply the VSL statute to family law cases, where the VSL litigation was not defined as a motion that is based upon any of the defining factors that govern the best interested of the child standard, or the domestic violence standard, where time is of the essence and where the filing and granting of the action has underlying connotations i.e. granting an application for a domestic violence restraining order implies that the temporary restraining order is granted and the time frame for addressing the litigation is defined under CA family code § 246. Granting the issuance of an order to show cause for contempt implies that the order to show cause based on a charging affidavit of contempt was issued under CCP. CODE § 1211.  Documents are considered filed once they are received by the clerk pursuant to California rules of court 1.20a. “Unless otherwise provided, a document is deemed filed on the date it is received by the court clerk”.     The vexatious litigant statute simply by omission and reference to any of these factors that are crucial to the dynamic field of family law proceedings did not intend the statute to be applied to family law proceedings.

This supreme court in Shalant v. Girardi, (2011) 253 P. 3d 266) commented on applying the vexatious litigant statute as a whole to individual motions, pleadings filed in one lawsuit and that legislative intent of the statue is to apply the vexatious litigant statute to unmeritorious new “actions” or “lawsuits, not motions or pleadings in one lawsuit.

“Reading the vexatious litigant statutes as a collective whole, defendants’ construction is not a plausible one. If “litigation” as defined in section 391, subdivision (a) included every motion or other procedural step taken during an action or special proceeding, and that definition were applied throughout the vexatious litigant statutes, several provisions would take on absurd, unworkable, or clearly unintended meanings. Under section 391, subdivision (b)(1), a person could be declared a vexatious litigant for losing five motions—all of which might have been filed in the same lawsuit—in a seven-year period. Section 391, subdivision (b)(3)’s reference to “motions, pleadings, or other papers” filed in the course of a litigation would make little sense if every motion, pleading, or paper filed was itself a new litigation. Under CCP § 391.1, the defendant could move for an order requiring the plaintiff to post security each time the plaintiff filed a motion or took any other procedural step. The trial court would then have to hold a hearing—separate from any hearing on the motion itself—and determine whether the plaintiff was reasonably likely to prevail on the motion or other procedural step. (CCP § 391.2.) On a negative finding, the court would then be required to order the plaintiff to furnish security, presumably cumulative to any ordered at earlier stages of the action. (CCP § 391.3.) If the plaintiff failed to provide the security, the action would, according to section 391.4, be “dismissed,” though the negative ruling on a motion is ordinarily referred to as a “denial” rather than a “dismissal.”

Under CCP § 391.7 itself, defendants’ construction of “litigation” would be unworkable. A vexatious litigant in Shalant’s position, having filed the action through counsel but then having lost representation, would be required to seek permission of the presiding judge before filing any motion or other paper. The presiding judge of the court would thus be placed in the position of overseeing each procedural step of an action pending in another department and deciding in each instance whether the particular motion, pleading, or paper had “merit.” (§ 391.7, subd. (b).)[5] If the clerk inadvertently filed any motion or other paper from the plaintiff, a notice from any other party that the plaintiff was subject to a prefiling order would automatically stay the “litigation” (§ 391.7, subd. (c))—that is, the particular motion filed or other procedural step taken—but the rest of the action would not necessarily be stayed at the same time. Pretrial and trial proceedings would be constantly interrupted for trips to the presiding judge’s department; an orderly and efficient trial would be impossible. Again, the statute provides that if permission is not granted, an inadvertently filed litigation is to be “dismissed” (ib id.), indicating the drafters did not intend each motion, which would ordinarily be granted or denied, but not “dismissed,” to be considered a separate “litigation.”

(11) Section 391.7, then, is not reasonably susceptible to a reading under which a prefiling order would bar the vexatious litigant from filing motions or other papers in propria persona even when the action (or special proceeding (see CCP §§ 22, 23)) was itself properly filed through counsel. Any ambiguity on this point, moreover, would be dispelled by examination of the legislative history behind section 391.7’s enactment, which shows a clear focus on precluding vexatious litigants from filing in propria persona unmeritorious new “actions” or “lawsuits.”[7] Nowhere in this history is there any suggestion the new section would bar vexatious litigants from filing motions or papers in pending litigation.

The additional remedy provided by section 391.7 was, instead, “directed at precluding the initiation of a meritless lawsuit and the costs associated with defending such litigation.” (Bravo v. Ismaj, supra, 99 Cal.App.4th at p. 222, italics added.); Shalant v. Girardi, (2011) 253 P. 3d 266). Review is required to determine if the Shalant holding applies to family law pleadings, and motions in one family law case.

C. Review required to determine whether a litigant can challenge the original vexatious finding based in one family law case based on the incorrect application of the statute, additional circumstances and in the interest of justice.

Appellant’s alleged vexatious litigant standing originated as a result of one family law case in Ixxxx filed on 8/9/2010 citing motions, declarations and granted restraining orders in ONE family law case. The court issued a vexatious finding upon a noticed motion by the real party of interest that did not did not cite any specific motions and  pleadings or cases as the basis for his request. The noticed motion was filed on 4/23/2010, the matter was heard on 6/22/2010 and the court issued its amended order on 8/9/2010. The resulting vexatious finding cited granted restraining orders in one family law case against the real party of interest; judicial disqualification declarations filed pursuant to CCP 170.6 and 170.3 that were filed as declarations in the same family law case; and order to show causes that were based on a mediator’s recommendation that did not adhere to the statutory requirements of CA evidence code section 1118-1121 in the same family law case. The finding prohibited that petitioner file any “papers” in the trial court without obtaining leave from the Presiding Judge.
Appellant filed an appeal and the court of appeal issued a remittitur in case xxxxx citing that section 391, was not intended to refer to   papers, but as litigation defined under CCP  § 391 and directed the respondent court to modify its ruling.  Respondent court modified its ruling on 1/31/2013.
Appellant filed a motion to vacate the vexatious injunction on 2/14/2013 in the trial court which the trial court denied. On 2/15/2013 appellant filed an appeal in the Fourth District division 2 court of appeal. Justice Ramirez issued an order staying the appeal until appellant had demonstrated the merit of an appeal and filed a civil case information statement.

Justice Ramirez issued his order denying the appeal without addressing the merit of the notice of appeal citing a number of appeals and writ proceedings in the fourth district court of appeal AFTER the vexatious finding had been initiated.

The action was severely detrimental to Petitioner as the newly enacted CCP §391.8 statute specifies under subdivision (a) “ A vexatious litigant subject to a prefiling order under Section 391.7 may file an application to vacate the prefiling order and remove his or her name from the Judicial Council’s list of vexatious litigants subject to prefiling orders. The application shall be filed in the court that entered the prefiling order, either in the action in which the prefiling order was entered or in conjunction with a request to the presiding justice or presiding judge to file new litigation under Section 391.7. The application shall be made before the justice or judge who entered the order, if that justice or judge is available. If that justice or judge who entered the order is not available, the application shall be made before the presiding justice or presiding judge, or his or her designee.” (CCP § 391.8 (a))

Subdivision C cites that “a court may vacate a prefiling order and order removal of a vexatious litigant’s name from the Judicial Council’s list of vexatious litigants subject to prefiling orders upon a showing of a material change in the facts upon which the order was granted and that the ends of justice would be served by vacating the order”, (CCP § 391.8 (c).

Petitioner filed the writ proceeding that is the subject of this review on 8/5/2013 as the trial court refuses that Petitioner file any motions or pleadings in the family law case that deal with the domestic violence and abduction risk of the real party of interest.
Justice Ramirez denied the writ on 6/5/2014 citing that the trial court is allegedly conforming to the court of appeal remittitur in case xxxxx which specifically ordered the court to modify the term of litigation to as defined in CCP § 391.(a) which defines “Litigation” means any civil action or proceeding, commenced, maintained or pending in any state or federal court.

The dismissal is once again prejudical to appellant as Justice Ramirez did not address the entire content of the writ petition and did not address the fact that the trial court is refusing to allow petitioner to file motions and pleadings in one family law case, a prejudicial circumstance similar to a situation addressed by this supreme court in Shalant v. Girardi, (2011) 253 P. 3d 266.
Appellant in her writ also addressed the fact that the trial court in its original vexatious finding of 8/9/2010 cited motions, declarations and restraining orders in one family law case which is contradictory to the holding expressed in the Shalant court but also that the finding of 8/9/2010 specified motions, declarations and papers filed after the vexatious noticed motion was filed on 4/23/2010; an improper action as the period to determine someone vexatious based on “litigation” is  measured retroactively from the date the motion is filed, rather than from the date the lawsuit was filed Stoltz v. Bank of America, (1993) 15 Cal. App. 4Th 217, 224].   In addition Judge Asberry in her vexatious finding in one family law case cited a number of § 170.1 and § 170.3 declarations which under CCP § 391.a does not qualify as new litigation.

They are considered declarations and the legislature defines these declarations as “written verified statements”, i.e. CCP § 170.3 (c)(1). “If a judge who should disqualify himself or herself refuses or fails to do so, any party may file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge”. Appellant did not file disqualification motions she presented disqualification declarations per CCP § 170.1, §170.6 and § 170.3 as none of the disqualification declarations were set for hearing and served as a formal motion 21 days prior to a hearing (16 days + 5 days if mailed) and they were not noticed as a motion (California Civil Code Procedure § 1005).
Judge Asberry also filed a prefiling order on 1/21/2011 in case IND 098669 attaching the vexatious finding of 8/9/2010 although an appeal was pending on the vexatious finding in case xxxxx with a filed notice of appeal. The filing of a notice of appeal vests jurisdiction in the appellate court until issuance of the remittitur, (People v. Johnson (1992) 3 Cal.4th 1183, 1257; California State Auto. Assn. Inter-Ins. Bureau v. Jackson (1973) 9 Cal.3d 859,862, fn. 3; Laidlaw Waste Systems, Inc. v. Bay Cities Services, Inc. (1996) 43 Cal.App.4th 630, 641; Andrisani v. Saugus Colony Limited (1992)8 Cal.App.4th 517,523; 9 Witkin, Cal. Procedure, supra, Appeal, § 21, pp.82-83) and appellant submits that the prefiling order is void, as the trial court cannot act upon a reviewing court’s decision; any actions it takes in that time period are null and void, (People v. Saunoa (2006) 139 Cal.App.4th 870, 872.).
This Supreme Court has already explained, “Thus, during the pendency of an appeal, the trial court loses jurisdiction to do anything in connection with the cause that may affect the judgment….” (People V. Johnson, supra, 3 Cal.4th at p.1257.) A duly perfected appeal divests the trial court of jurisdiction to vacate or amend a judgment valid on its face. (Laidlaw Waste Systems, Inc. v. Bay Cities Services, Inc., supra, 43 Cal.App.4th at p.641.) An order or judgment entered in the absence of jurisdiction due to apending appeal is void. (California State Auto. Assn.Inter-Ins. Bureau V. Jackson, supra, 9 Cal.3d at p.862, fn. 3; Dallman v. Dallman (1958) 164 Cal.App.2d 815, 817-818.)

Until remittitur issues, the lower court cannot act upon the reviewing courts decision; remittitur ensures in part that only one court has jurisdiction over the case at any one time, (Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 12.) Thus, before remittitur issues, the trial court cannot act on the reviewing courts decision; any actions it takes in that time period are null and void, (People v. Saunoa (2006) 139 Cal.App.4th 870, 872.). As the Supreme Court stated in Pioneer Land Co., “[T]he affirmance by an appellate court of a void judgment imparts to it no validity….”  (Pioneer Land Co. v. Maddux, 109 Cal. 633 [42 P. 295, 50 Am.St.Rep. 67].) As the Court of Appeal held in Adohr Milk Farms, Inc. v. Love 255 Cal. App. 2D 366  “That a void order is appealable does not permit us to consider the appeal on its merits and to affirm [or reverse] the order if we were so disposed, because our affirmance [or reversal] would impart no validity and would be similarly void.” No purpose would be served by considering the merits of a void order on appeal.

Traditionally appellate court have used some fundamental rules of statutory construction. The first rule is that the courts will adopt the plain meaning of the statute unless it would be repugnant to the obvious purpose of the statute. (Lungren v. Deukmejian (1988) 45 Cal.3d 727,735 [“Words used in a statute or constitutional provision should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).”].)

Another rule of statutory construction is to give effect, whenever possible, to the statute as a whole, and to every word and clause thereof, leaving no part of the provision useless or deprived of meaning. (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 18). Using these rules of statuory interpretation and construction it is undisputed that a litigant has the statutory right to apply pursuant to CCP § 391.8(a) (c) that a prefiling order against her be dismissed citing the interest of justice and change of circumstance. This court has already applied the statutory construction and intent of new litigation as defined in CCP § 391. (a) and that it does not apply to motions and pleadings in one pending case, Shalant v. Girardi, (2011) 253 P. 3d 266, but rather to complaints filed as a separate action initiating a new case.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s