Tuesday, June 21, 2022

In re Marriage of Deal (Cal. Ct. App. - June 21, 2022)

The Court of Appeal correctly views this appeal as frivolous and dismisses it. Totally correct.

But Part I of the opinion seems affirmatively pernicious (and wrong) to me.

Thomas Deal has been (rightly) declared a vexatious litigant and hence can't harass his ex-wife with a legion of lawsuits against her that he files pro per. Great. Couldn't be happier. After entry of the vexatious litigant order, Mr. Deal's got to get permission of the presiding judge to file more lawsuits. Mr. Deal asks to file a variety of new lawsuits, and -- totally predictably -- the presiding judge looks at them and says "No way. Denied." At which point Mr. Deal appeals.

In Part II of the opinion, the Court of Appeal says that Mr. Deal's appeal is totally frivolous, which, yep, it is. So we can -- and do -- dismiss the appeal without even an appearance by the respondent (Mr. Deal's ex-wife). Wonderful. She's been burdened enough. Awesome.

But in Part I of the opinion, the Court of Appeal holds that it's required to dismiss the appeal because it's from a non-appealable order.

Wait. What?

The Court of Appeal thinks the issue in this regard is fairly straightforward. There's a list of appealable orders in the statute, and this isn't one of them. That part's true. Then there's also the common law rule that makes various orders appealable because they effectively dispose of a case. But this order isn't one of those, the Court of Appeal says, because there's no "case" here in the first place, so nothing that the order disposes of. Since the order stopped the case from being filed initially, there's no case, so nothing ended, so there's no right to appeal.

Maybe that's technically right, as far as it goes. But the order still practically disposes of a case, in my view. Stopping someone from filing a case in the first place "disposes" of that case. Practically as well as otherwise. There is, for example, a case number assigned to Mr. Deal's requests -- those were cases that ended as a result of the order. And even if there weren't case numbers, you can't stop someone from filing an appeal, and thereby insulate yourself from being reversed, by the expedient of preventing them from filing litigation in the first place.

We don't generally let a single judge decide things once and for all without any right to review whatsoever. Yet that is precisely what the Court of Appeal's holding does here. A vexatious litigant prefiling order always reposes discretion in the presiding judge as to what future cases may or may not be filed, and the judge reviews those proposed filings and decides whether they should go forward. That decision is not immune from review. If the judge gets it wrong, the error should be corrected. That's the reason for appeals. And it's not a "piecemeal" appeal problem here. There's one order, then the proposed case is over -- it can't be filed and prosecuted as proposed. 

That's an appealable order, in my view.

So go ahead and dismiss this appeal on the merits as frivolous. Which, quite frankly, the Court of Appeal can most likely similarly do with respect to the overwhelming majority of appeals filed by vexatious litigants.

But at least let 'em appeal, rather than making a decision by a single judge the final word forever.