Metropolitan News-Enterprise


Friday, May 6, 2016


Page 1


Supreme Court Rules:

Vexatious Litigant Defendant Does Not Need Leave to Appeal




A prefiling order under the vexatious litigant statutes is not required when a defendant seeks to appeal, the state Supreme Court ruled yesterday.

“We conclude that [Code of Civil Procedure] section 391.7’s prefiling requirements do not apply to a self-represented litigant previously declared a vexatious litigant seeking to appeal an adverse judgment or interlocutory order in an action where he or she was the defendant,” Justice Ming Chin wrote for a unanimous court. “A different interpretation would impede his or her right of access to the appellate courts without advancing the underlying purpose of the vexatious litigant statutes.”

The legislation allows a court to 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 action is proposed to be filed.

Presiding Justices

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. Yesterday’s ruling came in 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 landlord.

John, representing herself, appealed both the judgment and a post-judgment order granting Chan $40,000 in attorney fees. After the appeals were briefed, Superior Court Appellate Division Presiding 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.

McKay gave the plaintiff 10 days to retain a lawyer or obtain leave to proceed in pro per under §391.7. The jurist McKay subsequently denied leave to proceed, concluding that John failed to show that the appeals had merit.

Court of Appeal Opinion

Div. Seven of this district’s Court of Appeal, in an opinion by Presiding Justice Dennis Perluss, reversed. The panel 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.

Chin, writing for the high court yesterday, agreed. He rejected the dictum of In re R.H. (2009) 170 Cal.App.4th 678, which held that an appealing defendant is a “plaintiff” under §391.7 once the appeal is filed.

“The R.H. court reached an untenable conclusion on this point,” he said, noting that a case it relied on, McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, involved an appeal by a vexatious litigant plaintiff, not a defendant.

“Thus, Chan’s reliance on R.H. is misplaced, and her additional contention that we should reverse the Court of Appeal’s judgment in order to ‘close up’ the perceived ‘loophole’ in the Legislature’s drafting of section 391.7 is unpersuasive,” he wrote. “Changing the language and the intent of the definitions in section 391 and the scope of amended section 391.7 in the statutory scheme to give it Chan’s expansive interpretation — defining appealing defendants as plaintiffs and responding plaintiffs as defendants — would ignore the statute’s plain words and the 2011 amendment to section 391.7, as well as undermine its reasonable application.”

John v. Superior Court (Chan), 16 S.O.S. 2287, was argued in the Supreme Court by John, representing herself; Pasadena attorney Raymond Zakari, for Chan; Tulare County Deputy County Counsel Kevin Stimmel, for the county as amicus supporting Chan; and Ronald Mazzaferro, an amicus supporting John.


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