APJ May Unilaterally Dismiss Tardy Appeal, C.A. Declares
By a MetNews Staff Writer
A rule of court permitting a court of appeal’s administrative presiding justice to dismiss an untimely filed appeal does not contravene the state constitutional requirement that cases be decided by three-judge panels, Div. One of the Fourth District Court of Appeal held Friday.
Justice Martin N. Buchanan said in an unpublished opinion that Los Angeles Superior Court Judge Elaine W. Mandel correctly sustained demurrers to causes of action put forth by a pro per, Peter Kleidman, in an action against the Court of Appeal for this district, Administrative Presiding Justice (“APJ”) Elwood Lui, and the Judicial Council,
Kleidman contended that Lui improperly dismissed his appeal from the dismissal of his action against JPMorgan Chase Bank, N. A., pointing to Art. VI, §3 of the California Constitution which says, in part:
“Concurrence of 2 judges present at the argument is necessary for a judgment.”
In light of that provision, Kleidman asserted, Lui’s act, under authority of California Rules of Court, rule 10.1004(c)(2), was void, and his appeal must be decided on the merits.
The rule says:
“The administrative presiding justice has the authority of a presiding justice with respect to any matter that has not been assigned to a particular division.”
“There is no right to oral argument on the dismissal of an untimely appeal for lack of appellate jurisdiction…. And because there is no right to oral argument on such a dismissal for lack of appellate jurisdiction, the provision of Article VI, section 3 of the California Constitution requiring the concurrence of two justices ‘resent at the argument’ does not apply.”
Government Code §69102
Kleidman also invoked Government Code §69102 which declares:
“The Court of Appeal for the Second Appellate District consists of eight divisions having four judges each.”
Lui acted unlawfully as a justice of a statutorily unauthorized ninth division—Div. “P”—the appellant argued. (Cases not yet assigned to a division are in the “Pre-docket Division,” designated, “P.”)
The Court of Appeal for this district “cannot create its own separate pocket of judicial power independent” of the eight authorized divisions, Kleidman maintained.
“Despite its misleading label, Division P is not a separate division; it is merely an administrative designation the Second District uses for motions that are filed and decided before an appeal is assigned to one of its eight divisions….The Second District’s use of such an administrative designation for pre-assignment matters ruled on by the APT does not violate Government Code section 69102.”
To the extent Kleidman was alleging liability on the part of the defendants, such was barred by judicial immunity, the justice said.
Mandel needlessly ruled on demurrers to causes of action that the plaintiff had dumped, Buchanan noted, and judgments entered following her order of dismissal were unnecessary because that order was, under Code of Civil Procedure §581d, itself a judgment.
The case is Kleidman v. California Court of Appeal Second Appellate District, D079855.
Kevin M. McCormick, a partner in the Oxnard firm of Lowthorp Richards, represented the defendants.
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