California Court of Appeals, Second District, Seventh Division
[REVIEW GRANTED bye CAL. SUPREME COURT]
ORIGINAL PROCEEDINGS in mandate. Patti Jo McKay, Judge. Super. Ct. No. BV030258.
[Copyrighted Material Omitted]
Aleyamma John, in pro. per., for Petitioner.
No appearance for Respondent.
Zakari Law and Raymond Zakari for Real Party in Interest.
PERLUSS, P. J.
The vexatious litigant statutes (Code Civ. Proc., §§ 391-391.7) authorize a court to enter a prefiling order that prohibits a self-represented party who has previously been declared a vexatious litigant from “filing any new litigation in the courts of this state” without first obtaining permission from the presiding justice or presiding judge of the court where the litigation is proposed to be filed. (§ 391.7, subd. (a).) “[I]f any new litigation is inadvertently permitted to be filed in propria persona without the presiding judge’s permission, [the adverse party] may then obtain its dismissal.” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1171 [126 Cal.Rptr.3d 98, 253 P.3d 266]; see § 391.7, subd. (c).)
In 2011 the Legislature amended section 391.7 to provide expressly that a presiding justice, as well as a presiding judge, is authorized to permit the filing of new litigation by a vexatious litigant subject to a prefiling order. (Stats. 2011, ch. 49, § 1.) The Legislature thus confirmed prior Court of Appeal decisions that had held vexatious litigants subject to a prefiling order must seek permission to file not only new civil actions in the trial court but also certain proceedings in the appellate courts.
Section 391.7’s requirement for obtaining leave to file unquestionably applies to an appeal by a self-represented plaintiff who has previously been declared a vexatious litigant and made subject to a prefiling order. Does it similarly apply to a vexatious litigant defendant’s appeal from an adverse judgment? The Appellate Division of the Los Angeles Superior Court ruled it did and ordered petitioner Aleyamma John to obtain approval before continuing with her two related appeals from the judgment in favor of her landlord in an unlawful detainer action. After reviewing John’s request to file new litigation by a vexatious litigant and finding she had failed to demonstrate the appeals had merit and were not filed for the purpose of harassment or delay, the appellate division dismissed the appeals.
Because it disregards section 391.7’s express reference to actions by a plaintiff and would impede a self-represented defendant’s right of access to the appellate courts without significantly advancing the underlying purpose of the vexatious litigant statutes, we reject this construction of section 391.7. Accordingly, we grant John’s petition for a writ of mandate and order the appellate division of the superior court to vacate its order dismissing John’s appeals and to decide the appeals on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Unlawful Detainer Action and John’s Appeals
John began renting a one-bedroom apartment in Alhambra in December 2008. On September 8, 2011 real party in interest Sylvia Chan doing business as STC Realty, as agent for the owners of the apartment building, served a 60-day notice to quit based on John’s failure to comply with her obligations as a tenant, “primarily your obligation to pay the rent.”
Chan initiated an unlawful detainer action in November 2011. (Chan v. John, (Super. Ct. L.A. County, 2012, No. ALH11U00946).) John represented herself in the lawsuit until shortly before the jury trial began in April 2012. John’s defense was apparently based, at least in part, on the contention the owner had improperly attempted to increase her rent and she had paid all rent lawfully due. The jury returned a verdict in favor of Chan. John’s retained counsel substituted out of the case several days later, and John resumed representing herself. A writ of possession issued in May 2012; John vacated the premises after receiving notice from the Sheriff’s Department concerning enforcement of the writ. In postjudgment proceedings in July 2012 Chan was awarded attorney fees of approximately $40, 000.
Still representing herself, John filed two notices of appeal from the unlawful detainer action to the appellate division of the superior court—the first, filed on June 7, 2012, was from the underlying judgment in the action; the second, filed on July 17, 2012, from the attorney fee award. The two ...