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Order Denying Vexatious Litigant’s Motion to File Lawsuit Is Nonappealable, C.A. Says
By a MetNews Staff Writer
An order denying a vexatious litigant’s motion to file a lawsuit is not appealable, Div. Three of the First District Court of Appeal declared yesterday.
Noting that “[i]n the 17 years since he was initially declared a vexatious litigant and subject to the prefiling order,” Thomas Deal “has waged a litigation war against his former wife, Patricia,” the court dismissed a purported appeal from an order by retired Tulare Superior Court Judge Glade F. Roper, sitting on assignment to the Alameda Superior Court, denying permission to file yet another action against his former spouse.
Such an order, Justice Victor Rodríguez wrote, is not among the appealable orders listed in Code of Civil Procedure §904.1 and it is not a final judgment.
He acknowledged that it was held in 2020 in an appeal spawned by litigation Deal instituted that a prefiling order “is injunctive in nature and therefore appealable” under Code of Civil Procedure §904.1(a)(6).
“But this is not an appeal from the prefiling order,” the jurist said, adding:
“Thomas has appealed an order denying his request for permission to file new litigation, a request he was required to make because he is a vexatious litigant subject to a prefiling order. The order denying permission to file new litigation under section 391.7 cannot reasonably be construed as an injunction. To do so would be contrary to the policy underlying the vexatious litigant statutory scheme—which is to curb misuse of the court system—as it would make each denial of a request to file new litigation separately appealable. Finally, we decline to exercise our discretion to treat this purported appeal as a writ petition.”
Too, he noted, the appeal was subject to dismissal based on its frivolous nature.
The case is In re Marriage of Deal, 2022 S.O.S. 2609.
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