The Fourteenth amendment of the U.S. constitution cites an equal protection standard that guarantees the right to substantive and procedural due process under the law and that we are all equally treated under the law. Not in the court of appeal. Pro per litigants are treated as scum. They are quickly deemed vexatious by the court so that the court can frivolously dismiss perfectly valid appeals or writs based on their subjective derogatory insulting opinions that do not resemble the law in any fashion. In this scenario children are damned as they don’t count in the eyes of the court. The focus is on the retaliation against the parent who dares to protest the insanity and lawless anarchy of this court.
One such scenario is presented with a motion to reinstate an appeal, which illustrates just how this court of appeal operates.
TO THE HONORABLE PRESIDING JUSTICE AND TO THE HONORABLE ASSOCIATE JUSTICES
OF THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA, FOURTH DISTRICT DIVISION TWO.
Appellant pursuant to California Rules of Court, rules 8.264 (b), hereby moves the court to reinstate the appeal as the court involuntarily dismissed appellant’s appeal. The grounds for the reinstatement are based upon 1. a mistake by the Court of Appeal in dismissing an appeal not based on the prejudicial error displayed in the trial court rulings and the objective merit standard required by In re Marriage of Flaherty, (1982) 646 P. 2d 179; and 2. on the Supreme court holding expressed in In re Sade C., (1996) 13 Cal. 4Th 952 which specifies that an appeal can only be dismissed once a civil appellant has had the opportunity to challenge the prejudicial error by the trial court, 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 dismissal prejudices appellant’s standing in the Fourth District Court of Appeal and represents a miscarriage of justice.
This motion is based upon this application, the attached Memorandum of Points and Authorities, and the application for appeal filed with this court.
Dated: xxxxxx Respectfully submitted,
MEMORANDUM IN SUPPORT OF REINSTATING THE APPEAL
1. APPEAL WAS DISMISSED BASED ON ALLEGED CIRCUMSTANCES NOT PRESENTED BY APPELLANT AND BASED ON A SUBJECTIVE MERIT STANDARD.
The appellate court based its opinion dismissing the appeal on an alleged number of appeals filed by appellant as a reason to dismiss the appeal, (order dated xxxxxx). The merit standard allocated to the application of the appeal under the standard of Luckett v. Panos, (2008) 161 Cal. App. 4th 77, 73 Cal. Rptr.3d 745, taking judicial notice of alleged appeals and that appellant has an alleged habit of suing people, had no relevance to the actual application presented which argued the statutory right of the appellant to proceed with an appeal of a prejudicial error as a result of the trial court approving and denying a perfectly valid application to vacate the prefiling order which was filed pursuant to CCP §391.8 c. Derogatory and insulting statements aimed at the appellant in this case, reflecting the demeanor of the Court of Appeal towards appellant, have no relevance to the trial record presented and the prejudicial error cited as the basis for the appeal.
It has long been the general rule and understanding that “an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.” (In re James V. (1979) 90 Cal.App.3d 300, 304, 153 Cal. Rptr. 334.) This rule reflects an “essential distinction between the trial and the appellate court … that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law….” (Tupman v. Haberkern (1929) 208 Cal. 256, 262-263, 280 P. 970.) The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal. ” In this instance Justice Richli was bound to review the correctness of the judgment as of the time of its rendition upon a record of matters which were before the trial court for its consideration. Justice Richly has no authority to allege insulting alleged circumstances not raised at the trial court level, revealing a subjective standard allocated towards appellant that has no relevance to the actual appeal, in contrast to the objective merit standard mandated by In re Marriage of Flaherty, (1982) 646 P. 2d 179.
Appellant had filed an application to vacate the prefiling in the trial court in case xxxxxx. Judge Cope granted and denied Appellant’s application for an order to vacate the prefiling order on 3/12/2014 (exhibit 1 and 2 application for appeal case xxxxx). Pursuant to Civil code of procedure § 391.8. (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 for an order 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.
The statute does not specify that the application for an order to vacate prefiling order, which does not require a hearing is considered to be new litigation. Indeed the statute specifically separates the application from the concept of new litigation as specified in CCP § 391.8. (a), which specifies that the application is to be filed in the action in which the prefiling order was entered OR in conjunction with a request to file new litigation pursuant to CCP § 391.7. As presiding Judge Cope granted the application for an order vacating the prefiling order, the prefiling order should have been vacated.
Should the court view the application as new litigation despite the intent of the statute, pursuant to CCP 391.7 (b) the court recognized the underlying merit of the application to vacate the prefiling order which cited a material change of facts and in the interest of justice to vacate the prefiling order. Judge Cope cannot issue a contradictory legal standard granting and denying the same application based on the same legal arguments presented citing that it recognized the merit of the application by filing said application. The order was prejudicial towards appellant and resulted in a miscarriage of justice and appellant filed a notice of appeal in a timely manner (Notice of appeal filed 3/17/2014 xxxx).
II. CALIFORNIA SUPREME COURT MANDATES THAT A CIVIL APPELLANT HAS THE STATUTORY DUTY TO MAKE A CHALLENGE ON THE APPEAL
In contrast to criminal cases, the civil appellant has the statutory duty to make a challenge on appeal, (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 without the record on appeal to reference in the statutory manner accepted by the appellate court through an opening brief or petition.
In this case the appellant was forced by the court of appeal to argue the alleged merit of the appeal without the record of appeal being filed (Order filed 3/27/2014 xxxx), citing a vexatious status as the basis for the order. Not only was the order improper it does not abide by the legislative intent of the statute which does not define notices of appeal as new litigation.
As the CA Supreme court opined at the end of its Shalant opinion, Shalant v. Girardi, (2011) 253 P. 3d 266) “ As the appellate court below revealed: We sympathize with the plight of already overburdened trial court that are forced to contend with abusive conduct of vexatious litigants. But in their efforts to deal with the problem of vexatious litigants courts must observe the limits sets by the applicable statutory scheme. If these limits are to confining then it is the function of the legislature not the courts to expand them.”
The statutory construction of 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.
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 ordinary meaning of the statute defined in CCP § 391.7 (a) specifies that a litigant does not have to file a written application demonstrating the merit of a notice of appeal, consisting of a one page document on an app-002 form in unlimited civil cases pursuant to California rules of court, Rule 8.100 subsection (a) (1) which specifies as follows:
(1)To appeal from a superior court judgment or an appealable order of a superior court, other than in a limited civil case, an appellant must serve and file a notice of appeal in that superior court. The appellant or the appellant’s attorney must sign the notice.
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.) 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.
It is the function of the legislature to determine that Notices of Appeal are defined as new litigation NOT the Court of Appeal.
Appellant requests the Appeal court to grant the court to grant her motion to reinstate the appeal and vacate the dismissal order which has resulted in a prejudicial error representing a miscarriage of justice.