A situation has emerged in California court rooms. Once a litigant has been declared vexatious for any reason, most notably in family law cases, than the relevant appellate court institutes its own prefiling order requiring litigants to file a written application in order to demonstrate the merit of a notice of appeal. The court uses this unlawful methodology to dismiss family law appeals as they really don’t want to do deal with family law cases citing matters that have nothing to do with the actual contents of the application that deals with the prejudicial error caused by the trial court.
Of course this scenario does not apply in criminal cases where frivolous appeals are the norm, where a $ 500 attorney fee cost issue is considered to be a life and death issue worthy of attention of the appellate court, with three justices who earn a salary each of at least $202,000 annually devoted to the disputed $ 500 attorney fees.
Strangely enough no statute or supreme court ruling specifies that a court of appeal CAN institute a prefiling order against a litigant. Instead the CA Supreme Court has specified that a civil appeal needs to be prosecuted in its fullest with the civil appellant required to cite the record on appeal in their brief and if they fail then the appeal can be dismissed, (In re Sade C., (1996) 13 Cal. 4Th 952.)
An appealed-from judgment or order is presumed correct. E.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal. Rptr. 65, 468 P.2d 193].) Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect (see ibid.), and “present argument and authority on each point made” (County of Sacramento v.Lackner (1979) 97 Cal. App.3d 576, 591 [159 Cal. Rptr. 1]; accord, In re Marriage of Ananeh-Firempong (1990) 219 Cal. App.3d 272, 278 [268 Cal. Rptr. 83]). The appellant cannot make a challenge arguing the alleged merit of an appeal as a result of an alleged prefiling order without the record on appeal to reference in the statutory manner accepted by the appellate court through an opening brief or petition.
The vexatious litigant statute speaks in terms of “litigation.” It defines vexatious litigants by the number of prior unsuccessful “litigations” they have undertaken (five in the past seven years), or by the fact of their persistent relitigation of “litigation” finally determined adversely to them. (§ 391, subd. (b).) Its provision for prefiling orders applies to the filing of any “new litigation.” (§ 391.7.) The first sentence of the statute defines the term. “As used in this title, the following terms have the following meanings: [¶] (a) `Litigation’ means any civil action or proceeding, commenced, maintained or pending in any state or federal court.” (§ 391, subd. (a), italics added.)
Notices of appeal by definition is not a “civil action or proceeding” within the meaning of this statute.
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).
If the Legislature had intended to include notice of appeal and stay proceedings in its definition of “litigation” in the vexatious litigant statute, it would not have limited that statute on its face to any “civil action or proceeding.” (§ 391, subd. (a).) and would have referenced a stay proceeding for a notice of appeal.
The unlawful inclusion of notices of appeals in the scope of prefiling orders under the vexatious litigant statute presents cumbersome procedural consequences and are extremely impractical contravening the intent of the legislature. Current title eight rules specify that a notice of appeal is filed pursuant to California rules of court 8.100 (a) and that the notice designating the record on the appeal has to be filed within 10 days pursuant to Rule 8.121, contravening the intent of the creative stay action invented by the Court of appeal.
Stay proceedings and their application in the court of appeal 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 a notice of appeal or a writ proceeding, suggesting a fundamental violation of due process and equal protection of the law under the fourteenth amendment.