Metropolitan News-Enterprise


Thursday, August 21, 2008


Page 3


Court: Vexatious Litigants Do Not Need Leave to Appeal When Defendants


By SHERRI M. OKAMOTO, Staff Writer


Court may not require a vexatious litigant to seek leave of the court before he may file an appeal in a case in which he is the defendant, the Fourth District Court of Appeal held yesterday.

Div. One overturned a San Diego Superior Court order dismissing Kamal Mahdavi’s appeal from a judgment in favor of the Portofino Beach Inn in an unlawful detainer action.

Mahdavi filed a notice of appeal with the Superior Court Appellate Division, which the court initially accepted and set for a hearing. After realizing that Mahdavi had previously been declared a vexatious litigant, however, Judge Peter Deddeh stayed proceedings and ordered Mahdavi to obtain an order from the presiding judge of the division permitting him to proceed with his appeal.

When Mahdavi failed to do so, Deddeh dismissed the appeal.

California Code of Civil Procedure Sec. 391.7 “prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.”

Writing for the Court of Appeal, however, Justice Cynthia Aaron reasoned that a defendant who appeals an adverse ruling is not filing “new” litigation, but rather, is attempting to “undo” the results of litigation that has been instituted against him.

Noting that the statute defines a plaintiff as the party who is pursing legal claims against another and the defendant as the party against whom litigation is brought, Aaron concluded the restrictions in the statute were not intended to apply to a defendant who has previously been declared a vexatious litigant in unrelated litigation.

She further reasoned that McColm v. Westwood Park Association (1998) 62 Cal.App.4th 1211—which held that “new litigation” includes the filing of appeals— supported the distinction between a plaintiff who seeks to maintain an action by pursing an appeal and a defendant who seeks to defend himself by appealing an adverse judgment in an action brought against him.

Because McColm involved an appellant who had been declared a vexatious litigant in prior litigation and was the plaintiff in the underlying action, Aaron wrote, “McColm should be read narrowly as holding that a prefiling order applies to prohibit a vexatious litigant plaintiff from appealing rulings of the trial court without first seeking leave of the appropriate appellate court.”

Additionally, because the vexatious litigant statute was intended to protect defendants from unmeritorious lawsuits, Aaron reasoned the statutory intent “would not be served by imposing its strict limitations on one who is a defendant in an action, even if that individual has previously brought frivolous claims against others.”

Aaron suggested that a defendant who is declared a vexatious litigant in an ongoing case may be fairly subjected to a prefiling order, but maintained that a defendant who has abused the judicial system in the past “must be permitted to defend himself as any other defendant would.”

Presiding Justice Judith McConnell and Justice Patricia D. Benke joined Aaron in her opinion.

The case is Mahdavi v. Superior Court (Portofino Beach Inn), 08 S.O.S. 5051.


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