MAHDAVI v. The SUPERIOR COURT of San Diego County, D052267.
| Decision Date | 20 August 2008 |
| Docket Number | No. D052267.,D052267. |
| Citation | 166 Cal.App.4th 32,82 Cal.Rptr.3d 121 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Kamal B. MAHDAVI, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Portofino Beach Inn, Real Party in Interest. |
OPINION TEXT STARTS HERE
Kamal B. Mahdavi, in pro. per., for Petitioner.
Darlene A. Dornan and Cheryl L. Brierton for Respondent.
Laurence Howard Lishner, Los Angeles, for Real Party in Interest.
Petitioner Kamal Mahdavi seeks a writ of mandamus ordering the appellate division of the superior court (appellate division) to vacate its order dismissing his appeal from a judgment in favor of real party in interest Portofino Beach Inn (Portofino) in its unlawful detainer action against Mahdavi.
In 2003, this court deemed Mahdavi to be a vexatious litigant, based on his conduct in prior litigation. Because of Mahdavi's status as a vexatious litigant, when Mahdavi appealed the judgment against him in the underlying unlawful detainer action, in which he was the defendant, the appellate division ordered Mahdavi to seek leave of the presiding judge of the appellate division to maintain his appeal. When Mahdavi failed to request leave to file his appeal within the 10-day time limitation set forth in the appellate division's order, the appellate division dismissed his appeal.
We conclude that the appellate division erred in requiring Mahdavi to seek leave to file an appeal from a case in which he is the defendant. We therefore grant Mahdavi's petition for a writ of mandate and order the appellate division of the superior court to vacate its order dismissing Mahdavi's appeal.
The appellate division shall permit Mahdavi to file and pursue an appeal from the judgment against him in the unlawful detainer action.
This court designated Mahdavi a vexatious litigant in Mahdavi v. State of California (July 21, 2003, D040432, 2003 WL 21689583 (nonpub. opn.)).
On January 3, 2007, Portofino instituted an unlawful detainer action against Mahdavi arising from Mahdavi's stay at an Econo Lodge hotel in Encinitas that Portofino owns. Mahdavi filed a notice of appeal in the action on February 20, 2007. 2 The appellate division of the superior court set a hearing date of December 14, 2007, for Mahdavi's appeal. 3
On December 5, 2007, after realizing that Mahdavi had previously been declared a vexatious litigant, the appellate division determined that it should stay the appellate proceedings Mahdavi had instituted by way of his notice of appeal. The appellate division's order states:
According to the court, Mahdavi's notice of appeal was “mistakenly accepted for filing on Appellant's behalf even though he had not sought or received an order from the Presiding Judge of the Appellate Division permitting its filing.” The appellate division stayed Mahdavi's appeal, took the matter off the December 14, 2007 calendar, and ordered Mahdavi to obtain an order from the presiding judge of the appellate division, within 10 days of service of the December 5, 2007 order, permitting him to proceed with his appeal.
On December 11, 2007, Mahdavi filed a document entitled, “The Appellant's Objection to the Malicious Void Order of the Disqualified Judge Stephanie Sontag.” Mahdavi argued (1) that he had previously successfully moved to disqualify Judge Sontag “on the ground of her bias against the appellant;” (2) that Judge Sontag lacked jurisdiction over his “perfected appeal;” (3) that the “prefiling order applies to the appeal in which the appellant has been the plaintiff in the lower court” and that “in this appeal, the appellant was the defendant in the lower court;” and (4) that he had “implicitly complied with the order” requiring him to show that “ ‘the litigation has merit and has not been filed for the purposes of harassment or delay.’ ”
On December 13, 2007, the appellate division overruled Mahdavi's objection. Among the reasons the court gave for its ruling was that “Appellant's belief that the prefiling order requirement does not apply to appeals of judgments in which he was the defendant is incorrect.” The court reaffirmed its December 5 order and stated that it would dismiss Mahdavi's appeal if he failed to comply with that order.
On December 17, 2007, Mahdavi filed a document entitled, “The Appellant's Reply to the December-13th-2007 Order of the Presiding Judge of the Appel[late] Division.” Mahdavi complained that in order for him to be able to establish the merit of his appeal, he would have to examine the case file. He stated that when he went to examine the court's file, he “was told that the court file was missing, and the shelf for the file was empty....”
On December 20, 2007, the appellate division issued an order dismissing Mahdavi's appeal. That order stated:
Mahdavi filed a peremptory mandamus petition in this court on December 28, 2007, seeking an order requiring the appellate division to vacate its order dismissing his appeal. On March 6, 2008, this court requested that the real party in interest, Portofino, and respondent superior court informally respond to Mahdavi's petition and that they specifically address “whether the appellate division may require a vexatious litigant to apply for a prefiling order when the litigant was a defendant below and is appealing the judgment against him.”
After receiving an informal response from superior court, and no response from Portofino, on March 24, 2008, this court issued an order to show cause, ordering that the superior court show cause why the relief Mahdavi requested should not be granted. Respondent's informal response was deemed its return to the order to show cause. Mahdavi filed a timely reply.
A prefiling order “prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.” (Code Civ. Proc., § 391.7.) 4 We hold that a court may not require a person who has been determined to be a vexatious litigant in prior litigation to seek leave of the court before he may file an appeal in a case in which he is the defendant.
A. The vexatious litigant statutory scheme
In ordering Mahdavi to seek leave of the presiding judge before being able to move forward with his appeal, the appellate division relied on section 391.7, subdivision (a), which provides:
“In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation
in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court.” 5
Section 391 defines the terms that are used throughout the vexatious litigant statute:
“(a) ‘Litigation’ means any civil action or proceeding, commenced, maintained or pending in any state or federal court.
“(b) ‘Vexatious litigant’ means a person who does any of the following: [¶] (1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing. [¶] (2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined. [¶] (3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay. [¶] (4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.
“(c) ‘Security’ means an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses, including attorney's fees and not
limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.
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