John v. Superior Court of Los Angeles County

Filed 5/5/16

IN THE SUPREME COURT OF CALIFORNIA

ALEYAMMA JOHN, )

)

Petitioner, )

) S222726

v. )

) Ct.App. 2/7 B256604

THE SUPERIOR COURT OF LOS )

ANGELES COUNTY, )

) Los Angeles County

) Super. Ct. No. BV030258

Respondent; )

)

SYLVIA CHAN, )

)

Real Party in Interest. )

__________________________________ )

The vexatious litigant statutory scheme (Code Civ. Proc., §§ 391-391.7)1

applies exclusively to self-represented litigants. Section 391.7, subdivision (a),

authorizes a trial or appellate court to enter, “on its own motion or the motion of

any party,” a prefiling order that prohibits a self-represented vexatious litigant

from “filing any new litigation in the courts of this state . . . without first obtaining

leave of the presiding justice or presiding judge of the court where the litigation is

proposed to be filed.” (§ 391.7, subd. (a), as amended by Stats. 2011, ch. 49, § 1.)

1 All further statutory references are to the Code of Civil Procedure unless

otherwise noted.

It is settled that section 391.7‟s prefiling process applies to self-represented

plaintiffs who have been declared vexatious litigants. (See Shalant v. Girardi

(2011) 51 Cal.4th 1164, 1169-1170 (Shalant).) Section 391.7‟s prefiling provision

applies to plaintiffs even when they appeal in propria persona an adverse judgment

in the action they filed originally. (See Mahdavi v. Superior Court (2008) 166

Cal.App.4th 32, 41 (Mahdavi).) We granted review to resolve a conflict in the

Courts of Appeal over whether section 391.7‟s prefiling requirements apply to

declared vexatious litigants who are self-represented defendants appealing from an

adverse judgment in litigation they did not initiate.

We conclude that section 391.7‟s prefiling requirements do not apply to a

self-represented litigant previously declared a vexatious litigant seeking to appeal

an adverse judgment or interlocutory order in an action where he or she was the

defendant. A different interpretation would impede his or her right of access to

the appellate courts without advancing the underlying purpose of the vexatious

litigant statutes. We therefore affirm the Court of Appeal‟s judgment allowing

defendant‟s appeal in this case to proceed.

FACTS AND PROCEDURE

Defendant Aleyamma John (John) rented an apartment in Alhambra in

December 2008. Real party in interest, plaintiff Sylvia Chan, doing business as

STC Realty (Chan), was the agent for the apartment building‟s owners. In 2011,

Chan served a 60-day notice on John for her failure to pay rent and comply with

other tenant obligations. When John did not pay the rent she owed, Chan initiated

an unlawful detainer action in November 2011. John represented herself in the

lawsuit until shortly before the jury trial began, in April 2012. After the jury

returned a verdict in Chan‟s favor, John‟s attorney substituted out of the case, and

John resumed self-representation. The court issued a writ of possession in May

2012, and John vacated the premises after receiving notice from the sheriff‟s

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department that it intended to enforce the writ. In July 2012, Chan was also

awarded approximately $40,000 in attorney fees in her action against John. John

filed two notices of appeal in June and July 2012 on her own behalf: one from the

underlying judgment, and one from the attorney fees award. The court

consolidated the two appeals in the appellate division. (Case No. BV030258

(Chan v. John action).)

On March 8, 2012, on its own motion, in a separately filed action against

the company that managed John‟s apartment building, in which John was the

plaintiff and appellant (John v. Riegel Property Management, Inc. (May 21, 2012,

B236441) cause ordered dism. (Riegel action)), Division Three of the Second

District Court of Appeal “issued an order to show cause whether John should be

declared a vexatious litigant and a prefiling order entered against her pursuant to

section 391.7, subdivision (a).” The court also stated that it would entertain a

motion by the defendant for an order requiring John to furnish security pursuant to

section 391.1. The court allowed John the opportunity to brief the issues and

present oral argument.

On April 18, 2012, Division Three of the Second District Court of Appeal

declared John a vexatious litigant plaintiff in the Riegel action. The court took

judicial notice of court records indicating that in the preceding seven years, as a

plaintiff in propria persona, John had prosecuted at least five litigations that were

concluded against her. The court also entered a prefiling order under section

391.7 that prohibited John from filing any new litigation in California courts in

propria persona without first obtaining leave of the presiding justice or presiding

judge. The order “directed the clerk of the court to provide the Judicial Council

with a copy of the prefiling order.” After finding that there was no “reasonable

probability” that John would prevail in her appeal in the Riegel action, the court

ordered her to furnish security in the amount of $10,000 within 30 days as a

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condition to going forward with her appeal. The court dismissed the appeal after

John failed to comply with the court‟s order to furnish security under section

391.1.

On May 1, 2014, after briefing was complete in the separate Chan v. John

action, the trial court‟s appellate division Presiding Judge McKay stayed all

further proceedings in that action under section 391.7, subdivision (c), which

automatically stays the filing of any new litigation after a party has been declared

a vexatious litigant. Presiding Judge McKay noted that Division Three of the

Second District Court of Appeal had declared John to be a vexatious litigant in the

Riegel action. Presiding Judge McKay directed John within 10 days either to

obtain permission from the Presiding Justice of the Second District Court of

Appeal, Division Three, to continue the Chan v. John consolidated appeal, or to

file a substitution of attorney with the name of a California State Bar member

before proceeding further. On May 6, 2014, John submitted a request to file new

litigation by a vexatious litigant in the Chan v. John action and an application to

vacate the prefiling order and remove her name from the vexatious litigant list.

On May 12, 2014, Presiding Judge McKay denied John‟s motion to file new

litigation on the ground she failed to demonstrate that her appeals “had merit and

were not filed for the purpose of harassment or delay.” The presiding judge

declared that the court lacked jurisdiction to vacate the prefiling motion under

section 391.8 (requiring application to be filed “in the court that entered the

prefiling order”). The court then dismissed John‟s consolidated appeals in the

Chan v. John litigation.

On May 30, 2014, John petitioned the present Second District Court of

Appeal (in Div. Seven) for a writ of mandate directing the appellate division in the

Chan v. John consolidated appeals to vacate its dismissal and decide the appeals

on their merits. Chan filed a brief opposing John‟s petition. In June 2014, the

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Court of Appeal issued an order to show cause why John‟s relief should not be

granted under Mahdavi, supra,166 Cal.App.4th at page 37 (court cannot require a

person determined to be a vexatious litigant in prior litigation to seek leave of

court before filing an appeal in a case in which the vexatious litigant is the

defendant). In July, Chan filed her written return to the petition, and in August,

John filed her reply. The Court of Appeal heard oral argument on October 30,

2014. It held that a defendant‟s status as a vexatious litigant plaintiff in one matter

cannot limit that same defendant‟s ability to pursue her appeal in an action she did

not initiate as a plaintiff. It ordered the appellate division to vacate its order

dismissing John‟s appeals in the Chan v. John action. We granted Chan‟s petition

for review.

DISCUSSION

We review questions of statutory construction de novo. (Ceja v. Rudolph &

Sletten, Inc. (2013) 56 Cal.4th 1113, 1119.) “Our primary task in interpreting a

statute is to determine the Legislature‟s intent, giving effect to the law‟s purpose.

[Citation.] We consider first the words of a statute, as the most reliable indicator

of legislative intent. [Citation.]” (Tuolumne Jobs & Small Business Alliance v.

Superior Court (2014) 59 Cal.4th 1029, 1037.) We construe the statute‟s words in

context, and harmonize statutory provisions to avoid absurd results. (Ibid.) If we

find the statutory language ambiguous or subject to more than one interpretation,

we may look to extrinsic aids, including legislative history or purpose to inform

our views. (Id. at pp. 1039-1040.) We also strive to avoid construing ambiguous

statutes in a manner that creates doubts as to their validity. (Steen v. Appellate

Division of Superior Court (2014) 59 Cal.4th 1045, 1054.) With these principles

in mind, we turn to the issue before us.

Section 391, subdivision (b)(1) defines a “ „Vexatious litigant‟ ” as a party

who “[i]n the immediately preceding seven-year period has commenced,

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prosecuted, or maintained in propria persona at least five litigations . . . 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.”

Section 391, subdivision (a) defines “ „Litigation‟ ” to mean “any civil action or

proceeding, commenced, maintained or pending in any state or federal court.”

Section 391, subdivision (d) defines a “ „Plaintiff‟ ” as “the person who

commences, institutes or maintains a litigation or causes it to be commenced,

instituted or maintained.” Section 391, subdivision (e), however, defines a

“ „Defendant‟ ” as “a person against whom a litigation is brought or maintained or

sought to be brought or maintained.” The Legislature included these definitions in

the original vexatious litigant statute in 1963. (See Stats. 1963, ch. 1471, § 1, p.

3038.) Aside from a few amendments not applicable here, the Legislature left the

definitions unchanged when it added section 391.7 in 1990 (Stats. 1990, ch. 621,

§ 3, pp. 3072-3073) and amended it in 2011 (Stats. 2011, ch. 49, § 1, p. 1878).

As noted at the outset, section 391.7, subdivision (a), 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 justice or 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.” The reference to

“presiding justice” in this subdivision, as well as similar references in other

subdivisions of the statute, was added by the 2011 amendment. (Stats. 2011, ch.

49, § 1, p. 1878.)

Before the 2011 amendment became effective, this court decided Shalant,

supra, 51 Cal.4th 1164, which held that section 391.7‟s prefiling process did not

apply where a vexatious litigant who was subject to a vexatious litigant prefiling

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order in a past action filed new litigation represented by counsel. Although

Shalant did not address vexatious litigant defendant appeals, it did discuss the

vexatious litigant prefiling provision generally. The court observed that the

original section 391.7 was added in 1990 (Stats. 1990, ch. 621, § 3, pp. 3072-

3073) to counter misuse of our courts by those abusing the system and to relieve

defendants from the burden of meritless litigation. (Shalant, supra, 51 Cal.4th at

pp. 1169, 1171.)

At the time the Legislature amended section 391.7 in 2011, the Court of

Appeal had already decided Mahdavi, where the court was faced with the same

question presented here — do section 391.7‟s prefiling requirements apply to

vexatious litigants who, as defendants, are appealing a judgment or interlocutory

order in an action filed against them? In Mahdavi, a hotel instituted an unlawful

detainer action against defendant Mahdavi four years after the Court of Appeal

had declared him to be a vexatious litigant. (Mahdavi, supra, 166 Cal.App.4th at

p. 35.) When he lost the unlawful detainer action in the trial court, Mahdavi‟s

notice of appeal was filed even though he had not sought an order from the

presiding judge of the appellate division permitting its filing. The appellate

division stayed Mahdavi‟s appeal and eventually dismissed it when he did not

obtain the presiding judge‟s leave to proceed. Mahdavi held that the vexatious

litigant statute‟s prefiling requirements do not apply to defendants who appeal

from a trial court‟s adverse ruling in a case they did not originally file. (Id. at p.

42.)

Mahdavi explained that in 1990, when it added prefiling order requirements

for vexatious litigants, the Legislature intended section 391.7 to bar only plaintiffs

from filing motions or papers when appealing actions that they initiated. As

Mahdavi observed, “[i]n appealing from a ruling in a case that he did not initiate,

[the defendant] cannot be said to be „maintaining‟ the litigation any more than any

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defendant can be considered to be „maintaining‟ litigation by seeking to defend

himself through the filing of pleadings and motions in the trial court.” (Mahdavi,

supra, 166 Cal.App.4th at p. 41.) The court held that “[i]n such a case, even if the

defendant has abused the judicial system in the past as a plaintiff, the defendant

must be permitted to defend himself as any other defendant would.” (Id. at p. 42.)

Additionally, when the court decided Mahdavi, subdivision (b) of section

391.7 provided, as it still does, that if permission to file is granted to a vexatious

litigant plaintiff, the presiding judge or justice may “condition the filing of the

litigation upon the furnishing of security for the benefit of the defendants.” (Italics

added.) If a clerk mistakenly files the new litigation without permission from the

presiding justice or presiding judge, any party or the court may file “a notice

stating that the plaintiff is a vexatious litigant subject to a prefiling order as set

forth in subdivision (a),” which effectively stays the litigation. (§ 391.7, subd. (c),

italics added.) If the court stays the litigation but later grants permission for the

filing, the same subdivision states, “the defendants need not plead” until 10 days

later. (Ibid., italics added.) The italicized language, which the Legislature

retained in the 2011 amendment, shows the legislative intent that section 391.7‟s

prefiling requirements apply to unrepresented vexatious litigant plaintiffs only,

whether in the trial or appellate courts.

In 2011, the Legislature retained its original focus on plaintiffs as vexatious

litigants when it added the term “justice” to section 391.7, while making clear that

the statute applies to vexatious litigant plaintiffs in both the trial and appellate

courts. (Assem. Com. on Judiciary, Rep. on Sen. Bill No. 731 (2011-2012 Reg.

Sess.) as amended Mar. 29, 2011, p. 4; see Sen. Judiciary Com., Rep. on Sen. Bill

No. 731 (2011-2012 Reg. Sess.) as introduced, p. 5.) The Assembly Judiciary

Committee explained the amendment‟s limited purpose: “The Judicial Council

notes that it is the practice of the courts to apply the vexatious litigant statute in the

8

Courts of Appeal, even though the current statutory scheme does not include the

term „justice‟ which would indicate the statute is not applicable to the Courts of

Appeal. This bill would add the term „justice‟ to clarify that the statute does apply

in the Courts of Appeal. Adding the proper terminology will make the statute

consistent with case law.” (Sen. Judiciary Com., Rep. on Sen. Bill No. 731 (2011-

2012 Reg. Sess.) as introduced, p. 5.) This legislative history and retained focus

on pre-amendment statutory terms supports Mahdavi‟s statutory interpretation.

(Mahdavi, supra, 166 Cal.App.4th at pp. 41-42.) It also supports our holding that

the Legislature intended to retain the distinction between a plaintiff and defendant,

and thus maintain the traditional understanding of party roles when it added the

term “justice” to section 391.7 in 2011. It is clear the Legislature never intended

courts to redefine the term plaintiff to include all appellants, regardless of their

role in the trial court action.

Chan and amicus curiae County of Tulare urge us to adopt the reasoning of

In re R.H. (2009) 170 Cal.App.4th 678 (R.H.), which treated an appealing

defendant as a “plaintiff” under section 391.7 once the appeal is filed. (R.H.,

supra, 170 Cal.App.4th at p. 695.) Chan asserts that under R.H., “a trial level

defendant who brings an appeal is considered a plaintiff for purposes of the

vexatious litigant statutes and a trial level plaintiff who is a respondent on appeal

is a defendant.” Chan contends that section 391, subdivision (a) also supports her

argument because it includes appeals under its definition of litigation. Chan

argues that a defendant who initiates an appeal is in the same position as a plaintiff

who files new litigation because he or she controls the issues by paying a new

filing fee, receiving a new case number, establishing the issues in their first filing,

and bearing the burden on the issues raised. Chan asserts, therefore, that for

purposes of the appeal, John acted as a plaintiff who commenced, instituted or

maintained a litigation under section 391, subdivisions (a) and (d), and therefore

9

should be considered a plaintiff as defined under section 391, subdivision (d).

Chan adds that making a defendant‟s appeal not subject to the prefiling order

process when that defendant has been declared a vexatious litigant in another

action is “little more than the exploitation of a loophole by vexatious litigants and,

in some sense, undermines the original purpose of these statutes.” As we explain,

we disagree.

The appellant in R.H. was the father of a juvenile in a dependency

proceeding filed by the plaintiff Fresno County Department of Children and

Family Services. He filed 13 appeals and writ petitions to the dependency court‟s

orders after his minor child was placed in foster care when the child‟s mother

neglected him due to her drug abuse and while the father was incarcerated. (R.H.,

supra, 170 Cal.App.4th at p. 683.) R.H. noted that “not only have all 13 appeals

and writs been determined adversely to R.H., in five of those cases there was not

even an arguable issue.” (Id. at p. 707.)

The appellate court in R.H. declared the appellant a vexatious litigant after

finding that “the vexatious litigant law exists not only to help defendants but to

curb misuse of the court system.” (R.H., supra, 170 Cal.App.4th at p. 703.) The

R.H. court was correct that it had authority to declare the father a vexatious

litigant. Section 391 does not prohibit a Court of Appeal from declaring a

defendant appellant or writ petitioner to be a vexatious litigant in the first instance

during the course of an appeal from litigation the defendant or writ petitioner did

not file. (§ 391, subd. (b)(3).)

Having correctly read section 391, subdivision (b)(3) as allowing it to

declare the defendant appellant a vexatious litigant in the first instance, R.H. went

on, in dictum, to address the application of section 391.7, concluding that statute

would bar a defendant appellant with a prefiling order against him or her from

filing an appeal or writ in the Court of Appeal without permission of the presiding

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justice. (R.H., supra, 170 Cal.App.4th at pp. 694-696.) The facts in R.H. did not

call for the court to address, as we must in this case, application of the statute‟s

prefiling requirements to previously declared vexatious litigant defendants who

appeal from actions they did not initiate. The R.H. court reached an untenable

conclusion on this point. As already explained, the language of the vexatious

litigant statute indicates that the prefiling permission requirement applies to

appeals by plaintiffs, not to parties who did not initiate the action in the trial

court.2

The R.H. court relied in part on McColm v. Westwood Park Assn., supra, 62

Cal.App.4th 1211, for its dictum on section 391.7. (R.H., supra, 170 Cal.App.4th

at p. 695.) The appealing vexatious litigant in McColm, however, was the plaintiff

in the trial court action; the court had no occasion to, and did not, address the

question whether section 391.7‟s prefiling permission requirement applied to an

appeal by a party who did not initiate the action below.

Thus, Chan‟s reliance on R.H. is misplaced, and her additional contention

that we should reverse the Court of Appeal‟s judgment in order to “close up” the

perceived “loophole” in the Legislature‟s drafting of section 391.7 is unpersuasive.

Changing the language and the intent of the definitions in section 391 and the

scope of amended section 391.7 in the statutory scheme to give it Chan‟s

2 We disapprove In re R.H., supra, 170 Cal.App.4th 678, 694-695, and

McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1217, insofar as

they state or imply that section 391.7‟s prefiling requirements apply to all

vexatious litigant appellants and writ petitioners. Additionally, we disapprove

language in Mahdavi v. Superior Court, supra, 166 Cal.App.4th 32, 41, to the

extent it could be interpreted as precluding a Court of Appeal from declaring an in

propria persona defendant on appeal to be a vexatious litigant under section 391.

11

expansive interpretation — defining appealing defendants as plaintiffs and

responding plaintiffs as defendants — would ignore the statute‟s plain words and

the 2011 amendment to section 391.7, as well as undermine its reasonable

application.

CONCLUSION

Based on the foregoing analysis, we affirm the Court of Appeal judgment.

Section 391.7‟s prefiling requirements do not apply to a self-represented vexatious

litigant‟s appeal of a judgment or interlocutory order in an action in which he or

she was the defendant.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion John v. Superior Court

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 231 Cal.App.4th 347

Rehearing Granted

__________________________________________________________________________________

Opinion No. S222726

Date Filed: May 5, 2016

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Patti Jo McKay

__________________________________________________________________________________

Counsel:

Aleyamma John, in pro. per., for Petitioner.

Charles Kinney as Amicus Curiae on behalf of Petitioner.

Kathleen Bales-Lange, County Counsel (Tulare), Crystal E. Sullivan, Chief Deputy County Counsel, Amy-

Marie Costa, Abel C. Martinez and Kevin Stimmel, Deputy County Counsel, as Amici Curiae on behalf of

Petitioner.

Cyrus Sanai as Amicus Curiae on behalf of Petitioner.

Ronald Mazzaferro as Amicus Curiae on behalf of Petitioner.

Paul Den Beste as Amicus Curiae on behalf of Petitioner.

David Delman as Amicus Curiae on behalf of Petitioner.

No appearance for Respondent.

Zakari Law, Raymond Zakari; Law Offices of Brian J. Ward and Brian J. Ward for Real Party in Interest.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Aleyamma John

10 W. Bay State St., #7831

Alhambra, CA 91802

(323) 244-0037

Kevin Stimmel

Deputy County Counsel

2900 W. Burrel Avenue

Visalia, CA 93291

(559) 636-4950

Ronald Mazzaferro

P.O. Box 536

El Verano, CA 95433

(707) 703-0599

Raymond Zakari

Zakari Law

46 Smith Alley, Suite 200

Pasadena, CA 91103

(626) 793-7328