Friday, February 13, 2015
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S.C. Agrees to Review Ruling on Appeals by Vexatious Litigants
High Court Will Decide Whether Filing Restriction Applies to Appealing Defendants
By KENNETH OFGANG, Staff Writer
The state Supreme Court has agreed to decide whether a prefiling order under the vexatious litigant statutes applies when the subject seeks to appeal a judgment in a case where he or she was the defendant.
The justices, at their weekly conference in San Francisco Wednesday, voted unanimously to grant review in John v. Superior Court (Chan) (2014) 231 Cal. App. 4th 347.
Div. Seven of this district’s Court of Appeal held in that case, decided Nov. 10, that the prefiling requirement under Code of Civil Procedure §391.7(a) does not apply to an appealing defendant.
The statute provides that a court may enter an order barring a person who has been previously adjudged a vexatious litigant from filing any new litigation in pro per absent prior leave from the presiding judge or presiding justice of the court in which the suit is proposed to be filed.
The reference to presiding justices was added by amendment in 2011, consistent with case law holding that the restrictions apply to appeals all well as to suits filed in trial courts. But all of the cases involved appeals by unsuccessful, self-represented plaintiffs.
Landlord-Tenant Dispute
The case that the high court agreed to hear is a landlord-tenant action in which Sylvia Chan, a real estate agent acting on behalf of a landlord, sought to evict a tenant from an Alhambra apartment. The tenant, Aleyamma John, fought the eviction, claiming she owned no rent. A writ of possession issued after a Los Angeles Superior Court jury found for the plaintiff.
John, representing herself, appealed both the judgment and a post-judgment order granting Cahn $40,000 in attorney fees. After the appeals were briefed, Superior Court Appellate Judge Patti Jo McKay stayed proceedings, noted that John had been declared a vexatious litigant by Div. Three of the Court of Appeal while litigating a previous landlord-tenant matter, and gave the plaintiff 10 days to retain a lawyer or obtain leave to proceed in pro per under §391.7.
McKay subsequently denied leave to proceed, concluding that John failed to show that the appeals had merit. But the Court of Appeal, in an opinion by Presiding Justice Dennis Perluss, said requiring a prefiling order of a pro per defendant seeking to appeal an adverse judgment is contrary to the language and history of the statute.
“Because it disregards section 391.7’s express reference to actions by a plaintiff and would impede a self-represented defendant’s right of access to the appellate courts without significantly advancing the underlying purpose of the vexatious litigant statutes, we reject [the Appellate Divison’s] construction of section 391.7,” Perluss wrote.
Other Action
In other conference action, the justices:
•Left standing a Fifth District Court of Appeal ruling that allows the father of a man shot to death by Fresno police to sue the maker of a no-longer-distributed caffeinated alcoholic beverage.
Brett Fiorini claims his son Ron, a 23-year-old college student at Fresno Pacific University, drank two 23.5-ounce cans of Four Loko before he brandished a shotgun and was shot 63 times by officers in October 2010.
Fiorini’s father sued City Brewing Company, LLC, the company that brewed, bottled, and labeled Four Loko, for negligence and strict liability. He alleged a single can of Four Loko contained as much alcohol as five to six 12-ounce cans of beer and as much caffeine as approximately four cans of Coca-Cola.
He also alleged that combining alcohol, a depressant, with caffeine and other stimulants created a product that had unreasonably dangerous propensities because it masked the intoxicating effect of the alcohol and increased the risk of violent and other high-risk behavior.
Reversing a judgment granted the defendant on the pleadings, the appeals court held that City Brewing, as the manufacturer, didn’t “furnish” a beverage and was thus not immune under the dram shop statutes.
No justice of the Supreme Court voted to review Fiorini v. City Brewing Company, LLC (2014) 231 Cal. App. 4th 306.
•Vacated submission and ordered supplemental briefing in the recently argued death penalty appeal of Royce Lyn Scott. The issue on which briefing was ordered concerns the standard to be applied on appeal when the trial court rejects a Batson/Wheeler motion for failure to make a prima facie showing of willful discrimination, but allows the prosecutor to place reasons for a peremptory challenge on the record, then concludes that the reasons are not pretextual.
•Left standing a ruling by this district’s Court of Appeal that a judgment debtor who succeeded in overturning a default judgment in favor of his ex-lawyer on appeal, then won a ruling in arbitration that his liability for unpaid attorney fees was less than the amount the lawyer had collected before the judgment was reversed, was the prevailing party for purposes of recovering contractual attorney fees and statutory court costs.
The ruling in David S. Karton, a Law Corporation v. Dougherty (2014) 231 Cal. App. 4th 600 overturned a judgment for more than $1 million in fees and costs in favor of a Beverly Hills attorney and sent the case back to the trial court with directions to treat the client as the prevailing party and to determine how much his former attorney must pay him in fees and costs.
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