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Prefiling Order Is Not Stayed While Underlying Case Is on Appeal—C.A.
By a MetNews Staff Writer
A lawsuit filed in November 2021 by a man who had been declared a vexatious litigant in January of that year was properly dismissed based on his failing to obtain a court order allowing hm to pursue the new action, the Sixth District Court of Appeal declared yesterday, rejecting his contention that the pre-filing requirement was stayed because it had been issued in a case that is now on appeal.
An appeal does normally automatically stay judgments and orders, Presiding Justice Mary J. Greenwood wrote. One exception, she said, is where a prohibitory order is issued.
Rejecting appellant Gregory Steshenko’s view, she wrote:
“The January 2021 prefiling order issued in Steshenko’s prior civil action expressly ‘prohibited’ him ‘from filing any new litigation in the courts of California without approval of the presiding justice or presiding judge of the court in which the action is to be filed.’ The January 2021 prefiling order is prohibitory in nature because it restrains Steshenko from changing the status quo by filing new litigation without permission….Consequently, the automatic stay that went into effect upon his appeal in that prior action did not operate to stay the January 2021 prefiling order.”
Steshenko argued that the clerk, acting on behalf of a judge, accepted the filing which “would not have been done if the case was filed improperly,” thus evidencing judicial consent. Greenwood responded that Code of Civil Procedure §391.7(c) “contemplates that a vexatious litigant subject to a prefiling order might cause new litigation to be filed in violation of the prefiling order by failing to obtain permission from the presiding judge.”
That section says, in part:
“If the clerk mistakenly files the litigation without the order, any party may file with the clerk and serve, or the presiding justice or presiding judge may direct the clerk to file and serve, on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order as set forth in subdivision (a). The filing of the notice shall automatically stay the litigation. The litigation shall be automatically dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding justice or presiding judge permitting the filing of the litigation….”
Greenwood declared that “Steshenko continues to be designated as a vexatious litigant and continues to be subject to a prefiling order pursuant to the January 2021 orders issued in his prior action.”
The case is Steshenko v. Board of Trustees of Foothill-De Anza Community College District, 2025 S.O.S. 2097.
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