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Can the Appellate Court deny me permission to file for an appeal because I was labeled a vexatious litigant?

Scotts Valley, CA |

If I first seek leave for permission to appeal can the Court deny me
Or what options do I have if I am denied?

thank you in advance

Attorney Answers 3

Posted

Yes, the Court of Appeal has the power to deny leave to file an appeal to vexatious litigants. The vexatious litigant statute covers proceedings in the Court of Appeal. The Presiding Justice will make his or her decision on the application for leave using the normal test found in CCP 391.7(b). If the appeal does not survive the application of the test, then leave will be denied.

It strikes me that a denial of leave would be an appealable order, since there will be no further proceedings in the Court of Appeal. Note that I have NOT researched the issue. Assuming, however, that the denial of leave is appealable, the remedy would be with the California Supreme Court.

You should be seeking the advice of counsel here. I'm not saying you should hire counsel to handle the appeal. I am saying you should hire counsel to advise you in as to the merits of your case, and to provide specific advice on occasion. If the Court of Appeal is unlikely to grant leave, it is better to know that now instead of wasting your time preparing an appeal that will go nowhere.

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Asker

Posted

no lawyer will take the case as they know the jj are not following the rule of law. this seems to say i can be denied but would the judge have to have a hearing to determine the merits? The presiding justice or presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. thanks for the reply--

Charles Richard Perry

Charles Richard Perry

Posted

Yes, your application can be denied. I do not believe the Court of Appeal needs to hold a hearing on this issue.

Michael Raymond Daymude

Michael Raymond Daymude

Posted

I want to amend and supplement my earlier response to agree with Mr. Perry's initial response and his comment. The proof he is right is here: "Litigation' means any civil action or proceeding, commenced, maintained or pending in any state or federal court." (CCP § 391, subd. (a).) "Manifestly, 'any civil action or proceeding' includes any appeal or writ proceeding. Of course, 'any state or federal court' includes the California Court of Appeal." McColm determined: "'Litigation' for purposes of vexatious litigant requirements encompasses civil trials and special proceedings, but it is broader than that. It includes proceedings initiated in the Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or other criminal matters.(McColm 62 Cal.App.4th at p. 1216.

Asker

Posted

this case is ongoing 3 years. had appeal in 2011 and Petition for Review (denied) coa demanded permission0 Cal Sct did not. (SHALANT V GIRADI(?)) Now coa again demands permission and then denies me. strange inconsistency. thanks for reply

Posted

If you have been labeled a vexatious litigant, I would consult and retain legal counsel before you file any further legal proceedings. By definition, a vexatious litigant is a pro se litigant, i.e., one who is prosecuting a matter without an attorney. While an appellate court cannot prevent you from filing a notice of appeal with respect to any appealable order, it can sanction you for filing a frivolous appeal. Those sanctions can include sizeable monetary damages payable to the court and other parties for having to defend a frivolous appeal. You do yourself no good, and substantial harm, continuing to litigate a frivolous lawsuit.

I am licensed in California only and my response assumes California law. It is provided as general information only and is not legal advice. It must not be relied upon by you. Legal advice must be based on the exact facts of the particular situation. This forum does not allow for the discussion of those specific, exact facts. I provide legal advice only during the course of an attorney-client relationship. The exchange of information through this forum does not establish such a relationship with me. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement by each of us. In this, as in all cases, you should personally consult with an attorney in your area for legal advice.

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Asker

Posted

do i file to the calif supreme ct or the ninth cir? this is the second time the coa has denied me permission and the first time i had provided security. they give no reason othr than to say i am a vx litigant. thank you for yr reply--

Asker

Posted

You might want to look at Rule 608 of the Rules of Evidence. In order to be "vexatious" you have to be dishonest and they are forbidden to enter evidence of dishonesty other than a criminal conviction unless the evidence comes from you -- i.e. you contradicted yourself.

Posted

Both my colleagues provided solid responses to your question. Proceed forward cautiously.

No attorney/client relationship is formed between the attorney responding to this question and the individual asking the question.

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