Original proceedings in the Court of Appeal for the State of California; petition to file notice of appeal by person who appears to be a vexatious litigant. Petition denied. (Super. Ct. No. 30-2009-00122583).
The opinion of the court was delivered by: Sills, P. J.
CERTIFIED FOR PUBLICATION
A Yuki Kobayashi was declared a vexatious litigant, subject to a prefiling order requiring him to obtain permission to file any new litigation, in a case arising in Los Angeles Superior Court, case number BC170895.*fn1
But is that Yuki Kobayashi the same Yuki Kobayashi who now seeks to file a notice of appeal in an Orange County Superior Court action he has brought against Douglas Han? There is a Judicial Council form (MC-701) for use by individuals who have been declared vexatious litigants when they want to file new litigation. In the case before us, our Yuki Kobayashi has doctored that form to assert that he never was a vexatious litigant in the first place, and is a victim of mistaken identity.*fn2
Under oath, this Yuki Kobayashi states: "I have never been determined to be a vexatious litigant but the trial court clerk requires me to obtain prior court approval to file any new litigation in which I am not represented by an attorney." In an attachment, Kobayashi relates that because he did not obtain a prefiling order in the trial court, the trial court dismissed his action against Han. He now seeks to appeal that dismissal, and his application form is intended to file the notice of appeal so he can do just that.
We deny his application in a published three judge opinion so as to offer guidance to other courts who may also be faced with claims of mistaken identity by persons with the same name as a vexatious litigant.
Three aspects of the prefiling statute must first be noted:
The Judicial Council is required, under section 391.7, subdivision (e) of the Code of Civil Procedure, to keep a list of persons declared by courts to be vexatious litigants subject to prefiling orders.*fn3
While the Judicial Council is required to keep a list, it is not required to make the list public. Nothing in section 391.7, the prefiling order statute, requires the Judicial Council to make the list public. Rather, section 391.7, subdivision (e) provides that the list is to be disseminated annually to "clerks of the courts of this state."
When a person is declared to be a vexatious litigant and subject to a prefiling order, there is a particular form, MC-700, prescribed by the Judicial Council to be used to make the prefiling order. The form itself orders the court clerk to send it to the Judicial Council. The form also requires the name and address of the individual subject to the prefiling order. Like the names on the ...