IV. LEGAL ARGUMENT
A. Whether the court of appeal can insist on an application being filed as the determining basis
for proceeding with an appeal as the Vexatious litigant statute (VLS) statute does not specify that
a written application has to be presented to the court demonstrating the merit of the Notice of
Currently the Court of Appeal issues orders staying every notice of appeal until an application is filed,
As this 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 same holding applies to the insistence of the court of appeal to file applications and civil case
information statements, where the litigant is ordered to argue the merit of the appeal in a letter format
before the record on appeal is filed.
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 litigant statute (VLS) 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 statute 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).
If the Legislature had intended to include notice of appeal 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 California Rules of Court 8.121, contravening the intent of
the creative stay action invented by the Court of Appeal.
Review is requires to determine if an application is required to proceed with a Notice of Appeal.
B. Whether a court of appeal can dismiss an appeal based on an alleged merit standard
citing alleged circumstances or alleged evidence not presented as part of the application on
In this case Justice Richli denied the appeal citing alleged circumstances and evidence that she
allegedly took judicial notice of, without according the appellant the due process right to respond. The
merit standard she 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, had no relevance to the actual application presented
which argued the appealability and statutory right of the appellant to proceed with a notice of appeal of
a prejudicial order 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).
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
appealability of the notice of appeal and 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 circumstances not raised at the trial court level.
In addition in civil cases, in contrast to the independent review process of criminal cases, the
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.
The Court failed to apply the objective merit standard required by In re Marriage of Flaherty , 31
Cal.3d 637 which discussed the different merit standard defining frivolous and merit. Any merit
standard accorded to any appeal has to be based on the appealability of a notice of appeal that deals
with the prejudicial error of the trial court. Petitioner indisputably demonstrated the appealability of the
notice of appeal (Application for appeal E060802 filed 3/27/2014) and in contrast to the subjective
opinion denying the application, the appeal had merit.
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. (Hallv. 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, 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 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
262 Cal. App. 2D 409 at p. 415.)
Viewed under this standard and based on the record included in appellant’s application for appeal,
(application for appeal E060802), appellant’s appeal in this case cannot be deemed without merit and
should never have been dismissed.
Review is required to determine whether the court of appeal can dismiss an appeal based on
alleged circumstances not presented in the application for the appeal, failing to consider the
appealability of the Notice of Appeal.
C. Whether a Notice of Appeal is considered to be new litigation pursuant to CCP § 391 (a).
The Court of Appeal currently stays the appeal with an order (exhibit B) once a notice of appeal has
been filed, that specifies that the appellant has to file an application demonstrating the merit of the
appeal and file the civil case information statement with the application.
As specified in review section B, the appeal court take liberal justice in the “interpretation” of the
merit standard of the appeal, denying perfectly valid appeals in a manner that does not even discuss the
appealability of the notice of appeal to prevent that a litigant has the procedural and substantive due
process right to actually proceed with the appeal.
The vexatious litigant statute (§ 391-391.7) was enacted in 1963 to curb misuse of the court system
by those acting in propria persona who repeatedly relitigate the same issues. 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. The statute defines a “vexatious litigant,” provides a procedure in pending
litigation for declaring a person a vexatious litigant, and establishes procedural strictures that can be
imposed on vexatious litigants. A vexatious litigant may be required to furnish security before
proceeding with the pending litigation; if that security is not furnished, the litigation must be dismissed.
(§§ 391.3, 391.4.) In addition, the court may, on its own motion or on motion of a party, issue a
prefiling order that prohibits the vexatious litigant from filing any “new litigation” without first
obtaining permission of the presiding judge of the court where the litigation is proposed to be filed. (§
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.) The question in this case is whether an
notice of appeal is 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 inclusion of notices of appeals in the scope of prefiling orders under the vexatious litigant statute
would present cumbersome procedural consequences and be 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 California rules of court 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 an appeal, suggesting a fundamental violation
of due process and equal protection of the law under the fourteenth amendment.
Applying a prefiling order to a notice of appeal would produce absurd results of prejudicial error by
appellate court judges as demonstrated in review section B as an appellant must make a challenge and
must claims of reversible error or other defect (see ibid.), and “present argument and authority on each
point made” In re Sade C. (1996), 13 Cal. 4Th 952; (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]). If he does not, he may, in the court’s discretion, be deemed to
have abandoned his appeal, (Berger v.Godden (1985) 163 Cal.App.3d 1113, 1119. at p. 1119.) In that
event, it may order dismissal. (Ibid.) The point is that the appellant has to proceed with the entire
appeal in order to make a challenge of trial court prejudicial error citing the record of appeal.
Review is required to determine whether an appeal is considered to be new litigation under the CCP
§ 391 (a) statute.
D. Whether an involuntarily dismissed appeal is final 30 days from the date of dismissal.
Petitioner attempted to file a motion to reinstate the appeal pursuant to California rules of
court 8.264 (b)(1) which specifies: “except as otherwise provided in this rule, a Court of Appeal
decision in a civil appeal, including an order dismissing an appeal involuntarily, is final in that court 30
days after filing”. During the 30 days the court of appeal may modify the decision until it is final in the
Court pursuant to California rules of court 8.264 (c) (1) which specifies: “A reviewing court may
modify a decision until the decision is final in that court”. If the clerk’s office is closed on the date of
finality, the court may modify the decision on the next day the clerk’s office is open.
As the Court of Appeal remarked in one published opinion, “[t]hough among the least celebrated
functions of appellate courts, the processing of a wide range of motions, applications and other requests
for relief during the pendency of an appeal is an important aspect of the appellate process.” (Bryan v.
Bank of America (2001) 86 Cal.App.4th 185, 193-194.)
Appellant had the statutory right to file a motion to reinstate the appeal and have it filed pursuant to
California rules of court 8.20 which specifies that California Rules of Court prevail and a court of
appeal MUST accept for filing a record, brief, or other document that complies with the California
Rules of Court despite any local rule imposing other requirements.
The only time an appeal can be dismissed has been described in California rules of court 8.140.The
appellant must designate the record on appeal within 10 days after filing the notice of appeal; the
designation may be included in the notice of appeal, (California Rules of Court 8.120, 8.124, 8.130.) If
the appellant fails to do this, the superior court clerk will send out a notice of default. If the appellant
fails to cure the default, the appeal can be dismissed, (Rule 8.140). Hollister Convalescent Hosp., Inc.
v. Rico, (1975) 542 P. 2d 1349 provides that “[t]he reviewing court for good cause may relieve a party
from a default occasioned by any failure to comply with these rules, except the failure to give timely
notice of appeal.” (Italics added.) The reason for this proviso was clearly stated in Estate of
Hanley (1943) 23 Cal.2d 120 [142 P.2d 423, 149 A.L.R. 1250], in language which has since been
reiterated by this court on many occasions. “In strictly adhering to the statutory time for filing a notice
of appeal, the courts are not arbitrarily penalizing procedural missteps. Relief may be given for
excusable delay in complying with many provisions in the statutes and rules on appeal, such as those
governing the time within which the record and briefs must be prepared and filed. These procedural
time provisions, however, become effective after the appeal is taken. The first step, taking of the
appeal, is not a procedural one; it vests jurisdiction in the appellate court and terminates
the jurisdiction of the lower court.” With this holding the Supreme appears to suggest that an appeal is
not final once dismissed and that if relief is requested within the time frame determined by California
rules of court then the court can grant such relief.
Although some appeal court cases have discussed the abandonment of an appeal and that filing of an
abandonment operates as a dismissal of it as in Conservatorship of Oliver, (1961) 192 Cal. App. 2d 832
there has been no precedent ruling specifying that an involuntary dismissal of an appeal by a court of a
Court of Appeal is final on the date of dismissal.
The Court of Appeal specifically cited lack of jurisdiction and that it cannot institute a cause once the
appeal has been dismissed. One California Supreme Court case has already addressed the issue of
jurisdiction. In Abelleira v. District Court of Appeal, (1941) 17 Cal. 2D 280 the Supreme Court defined
the jurisdiction of the appellate court as being initiated once a notice of appeal has been filed. The
court also delved into the meaning of lack of jurisdiction. The court opined that for the purpose of
determining the right to review by certiorari, restraint by prohibition, or dismissal of an action, a much
broader meaning is recognized. Here it may be applied to a case where, though the court has
jurisdiction over the subject matter and the parties in the fundamental sense, it has no “jurisdiction” (or
power) to act except in a particular manner, or to give certain kinds of relief, or to act without the
occurrence of certain procedural prerequisites. Thus, a probate court, with jurisdiction of an estate, and
therefore over the appointment of an administrator, nevertheless acts in excess of jurisdiction if it fails
to follow the statutory provisions governing such appointment. (Texas Co. v. Bank of America, 5
Cal.2d 35, 39 [53 PaCal.2d 127].) The superior court may have jurisdiction over a cause of action and
the parties to a suit for libel, but in the case of non-residents, a bond for costs is required by statute, and
unless such bond is filed, it is without jurisdiction to proceed, and will be restrained by writ of
prohibition. (Shell Oil Co. v. Superior Court, 2 Cal.App.2d 348 [37 PaCal.2d 1078]; see, also,Carter v.
Superior Court, 176 Cal. 752, 757 [169 P. 667].) A court with jurisdiction over a cause may hear and
determine it and give judgment, but it cannot award costs in a situation not provided by statute. (Michel
v. Williams, 13 Cal.App.2d 198 [56 PaCal.2d 546].) The superior court may have jurisdiction over a
particular cause, but a disqualified judge may not sit and hear it if objection to his qualifications is
raised, and prohibition will lie to prevent him from trying it. (Hall v. Superior Court, 198 Cal. 373, 387
[245 P. 814].) Where an injunction is sought against enforcement of a public statute, the court, despite
its general equitable powers, has no jurisdiction to issue it. (Loftis v. Superior Court, 25 Cal.App.2d
346, 352 [77 PaCal.2d 491]; Reclamation Dist. v. Superior Court, 171 Cal. 672 [154 P. 845].) A court
may have jurisdiction to grant a new trial after motion based upon proper statutory grounds, but has no
jurisdiction to make the order unless the moving party has given his notice of intention within the
prescribed statutory time. (See Peters v. Anderson, 113 Cal.App. 158 [298 P. 76].) The court has power
under section 473 of the Code of Civil Procedure to set aside its judgment or order on motion where it
was entered against a party through inadvertence, excusable neglect, or mistake; but that power is
wholly lost at the end of the six months’ period prescribed by statute. (Estate of Hunter, 99 Cal.App.
191, 196 [278 P. 485].) An appellate court may have power to hear and determine a particular case
on appeal, but is without jurisdiction to do so unless the procedural step of notice of appeal within the
prescribed statutory time is taken. (Aregood v. Traeger, 94 Cal.App. 227 [270 P. 1002].) And if the
notice is given before judgment is actually rendered, the premature appeal will be dismissed (Aspegren
& Co. v. Sherman, Swan & Co., 199 Cal. 532 [250 P. 400]), or a lower appellate court may be
prevented from hearing it by writ of prohibition. (Shriver v. Superior Court, 48 Cal.App. 576, 582 [192
On a number of occasions the courts of this state have recognized the conflicting senses in which the
term “jurisdiction” is used, and have emphasized the point that in applications for prohibition or
certiorari, the broader meaning is involved. In a Supreme Court opinion, Rodman v. Superior Court, 13
Cal.2d 262 [89 PaCal.2d 109], this court said: “… some confusion exists with reference to what
constitutes an excess, and what constitutes an error, in the exercise of jurisdiction. However, it seems
well settled (and there appears to be no case holding to the contrary) that when a statute authorizes
prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its
jurisdiction, and certiorari will lie to correct such excess.” In Spreckels S. Co. v. Industrial Accident
Com., 186 Cal. 256, 260 [199 P. 8, 9], where the commission made an award larger than the statute
authorized and certiorari was sought, the court said: “The difficulty arises from the different shades of
meaning which the word ‘jurisdiction’ has. As sometimes used, it means simply authority over the
subject matter or question presented. In this sense the commission undoubtedly had jurisdiction in this
case, and its award was not without jurisdiction on its part. But the word is frequently used as meaning
authority to do the particular thing done, or, putting it conversely, a want of jurisdiction frequently
means a want of authority to exercise in a particular manner a power which the board or tribunal has,
the doing of something in excess of the authority possessed.” (See, also, Weintraub v. Superior Court,
91 Cal.App. 763, 769 [267 P. 733]; State v. Reynolds, 209 Mo. 161 [107 S.W. 487, 491, 123
Am.St.Rep. 468, 14 Ann. Cas. 198, 15 L.R.A. (N. S.) 963]. Speaking generally, any acts which exceed
the defined power of a court in any instance, whether that power be defined by constitutional provision,
express statutory declaration, or rules developed by the courts and followed under the doctrine of stare
decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be
restrained by prohibition or annulled on certiorari, In Abelleira v. District Court of Appeal, (1941) 17
Cal. 2D 280.
In this case the Court of Appeal indisputably had jurisdiction to reinstate an involuntarily dismissed
appeal pursuant to California rules of court 8.264 (b)(1) and California rules of court 8.264 (c) (1).
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.) In this situation the
cause was still pending in the Court of Appeal as the appeal was not final and the Court of Appeal had
jurisdiction to revise its error.
Review is required to determine whether an involuntarily dismissed appeal is final on the date of
dismissal and whether the court of appeal has jurisdiction to reinstate the appeal.