Filed 7/28/16 Hicks v. Kulka CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


MICHAEL HICKS,                                                       H038566
                                                                    (Monterey County
         Plaintiff and Appellant,                                    Super. Ct. No. M119425)

             v.

WILLIAM KULKA,

         Defendant and Respondent.



         Appellant Michael Hicks, an incarcerated vexatious litigant, sought to file a
medical malpractice complaint against respondent William Kulka, M.D, a physician who
treated him in prison. As a vexatious litigant, appellant was required to seek permission
from the presiding judge of the trial court before filing his complaint. (Code Civ. Proc.,
§ 391.7.)1 The trial court denied his request. Appellant appeals, contending that the
court abused its discretion in denying the request. We dismiss the appeal as taken from a
nonappealable order.
                              FACTUAL AND PROCEDURAL BACKGROUND
         While serving a life sentence in state prison, appellant was declared a vexatious
litigant pursuant to California’s vexatious litigant statutory scheme. (§§ 391 et seq.)


         1
        All further statutory references are to the Code of Civil Procedure unless
otherwise noted.
Because of that designation and a prefiling order, appellant was required to obtain
permission from the presiding judge prior to filing any new litigation. (§ 391.7.)
        On May 16, 2012, appellant filed a request to file new litigation by a vexatious
litigant in Monterey County Superior Court, requesting to file a summons and complaint
for medical malpractice against respondent, a physician who had treated him in prison.
The complaint alleged that respondent failed to properly diagnose and treat him. On
May 16, 2012, the presiding judge denied his request.
        This court granted appellant permission to file an appeal in this court from the
May 16, 2012 order. Subsequently, we issued an order to show cause (OSC) as to why
the appeal should not be dismissed as taken from a nonappealable order. We then
deferred the OSC for consideration with the appeal, in order to allow the respondent to
file a brief.
                                         DISCUSSION
The Vexatious Litigant Scheme
        Under the vexatious litigant statutory scheme (§§ 391-391.7), upon the proper
proof, self-represented litigants can be deemed vexatious and subjected to a variety of
restrictions set out by the statutes, including the requirement to post a bond (§§ 391.1-
391.4), or to obtain permission before filing new litigation. (§ 391.7.) 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.).” (John v.
Superior Court (2016) 63 Cal.4th 91, 98.) “It is settled that section 391.7’s prefiling
process applies to self-represented plaintiffs who have been declared vexatious litigants.
[Citation.]” (Ibid.) Pursuant to this section, a litigant can be “ ‘barred from filing the
action or proceeding if success is considered improbable. . . . [¶] Section 391.7’s extra
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burden upon the vexatious litigant arises because a state court has taken a second step in
addressing the vexatious litigant problem and has determined that no court or adverse
party should be burdened by the particular plaintiff’s meritless litigation.’ ” (Shalant v.
Girardi (2011) 51 Cal.4th 1164, 1171, citing McColm v. Westwood Park Assn. (1998) 62
Cal.App.4th 1211, 1216.)
       Appellant was declared a vexatious litigant in 2010, and has been subject to a
section 391.7 prefiling order since that time. He does not dispute the validity of that
order here, nor does he dipute that he is subject to the prefiling requirement. Instead, on
appeal, he claims that the trial court abused its discretion in denying the request to file
new litigation filed pursuant to the prefiling requirement. He argues that the proposed
complaint, along with the attachments, show that his claims have merit.
The Order Denying Permission to File New Litigation is Not Appealable
       We granted appellant’s request to file an appeal from the order denying permission
to file new litigation, and subsequently issued an OSC regarding the appealability of such
an order because there is no published California decision addressing the appealability of
orders denying permission to file new litigation by a vexatious litigant.
       The right to appeal is wholly statutory, and a judgment or order is not appealable
unless expressly made so by statute. (People v. Mazurette (2001) 24 Cal.4th 789, 792.)
“There are three categories of appealable judgments or orders: (1) final judgments as
determined by case law, (2) orders and interlocutory judgments made expressly
appealable by statute, and (3) certain judgments and orders that, although they do not
dispose of all the issues in the case are considered ‘final’ for appeal purposes and are
exceptions to the one-final-judgment rule.” (Conservatorship of Rich (1996) 46
Cal.App.4th 1233, 1235.) Here, there is no final judgment as no action was ever allowed
or filed. Nor is there a statute expressly making an order denying permission to file new
litigation by a vexatious litigant appealable. Nothing in the vexatious litigant statutory


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scheme suggests that such orders are appealable, nor does section 904.1, which defines
appellate jurisdiction, list any order in the vexatious litigant scheme as appealable.
       Unless we can reasonably analogize the order denying permission to file new
litigation to one of the “final” orders made appealable by section 904.1, there is no
appellate jurisdiction. Appellant suggests that we should treat the order as an injunction
which is appealable under section 904.1, subdivision (a)(6). In fact there is some
precedent for treating certain vexatious litigant orders as appealable under this section.
Some courts have found an order declaring an appellant vexatious to be appealable as an
injunction. In Luckett v. Panos (2008) 161 Cal.App.4th 77, appellant appealed a trial
court’s order denying his request to lift a prefiling order. On appeal the court found that
an order denying a request to lift a prefiling order was appealable as an order refusing to
dissolve an injunction. (Id. at 90.)
       In some instances, courts have treated the order deeming a litigant vexatious to be
appealable under the collateral order doctrine. (See Lester v. Lennane (2000) 84
Cal.App.4th 536, 561; Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297-
298 [an interim order is appealable if: “1. The order is collateral to the subject matter of
the litigation, [¶] 2. The order is final as to the collateral matter, and [¶] 3. The order
directs . . . the performance of an act by or against appellant.”].) Other courts have found
orders issued pursuant to the vexatious litigant statutory scheme to not be directly
appealable until after entry of judgment. (See, i.e., Gollin v. Allenby (2010) 190
Cal.App.4th 616, 635; Roston v. Edwards (1982) 127 Cal.App.3d 842, 846.)
       Even if there were not a split of authority on the appealability of orders declaring
an appellant to be vexatious, the order appealed here is not an order declaring the
appellant vexatious. Appellant seeks review of an order denying a vexatious litigant’s
request to file new litigation, which he was required to file because of the vexatious




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litigant designation and prefiling requirement.2 By definition, this is not an order which
is collateral to a main action, as there is no action pending. Nor can this order be
considered an injunction. Even if we chose to construe the vexatious designation and
prefiling order as an injunction prohibiting appellant from filing new litigation without
approval, each instance where that approval is then denied, is not itself a new injunction.
(See Luckett v. Panos, supra, 161 Cal.App.4th at p. 85.) It is the application by the court
of the previously imposed injunction. Treating each instance where permission to file
new litigation is denied as a separately appealable injunction would be contrary to both
the vexatious litigant statutory scheme and public policy underlying it.
       “ ‘The purpose of the statutory scheme is to deal with the problem created by the
persistence and obsessive litigant who has constantly pending a number of groundless
actions.’ ” (Holcomb v. U.S. Bank National Association (2005) 129 Cal.App.4th 1494,
1504 citing to First Western Development Corp. v. Superior Court (1989) 212
Cal.App.3d 860, 867-868.) “It is to curb misuse of the court system by those acting as
self-represented litigants who repeatedly relitigate the same issues. ‘Their abuse of the
system not only wastes court time and resources but also prejudices other parties waiting
their turn before the courts.’ [Citation.]” (Gollin v. Allenby, supra 190 Cal.App.4th at
635.) With this purpose in mind, as in a variety of other contexts, presiding judges and
justices have been invested, by section 391.7, with the responsibility of acting as
gatekeepers for groundless claims. (See for example Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 770, 781; People v. Superior

       2
         Having reviewed the caselaw, we are satisfied that there is no published or
unpublished decision finding an order denying a request to file new litigation appealable.
Respondent too was unable to find any caselaw on point. We note that some unpublished
cases have elected to review such orders on the merits. However, because they have
done so without discussing the jurisdictional issue of appealability, we find them without
import. (See, i.e., In re Marriage of Shawn Dolansky and James A. Overton (Fourth
Dist.) (Sept. 9, 2009, D053050) [nonpub. opn.].)

                                              5
Court (Humberto S.) (2008) 43 Cal.4th 737, 751; People v. Mentch (2008) 45 Cal.4th
274, 290.) They are granted with broad discretion to decide whether to allow a new case
to proceed, balancing the probable merit of the proposed action with the ultimate goal of
preventing misuse of the court system. To allow an appeal from an order denying a
request to file new litigation is irreconcilable with the purpose of curbing misuse and
protecting court time and resources. This purpose would be entirely foiled if each
instance, where a court carried out its duty under the statute to prohibit a meritless action
from moving forward, could result in yet another new cause, i.e., an appeal.
       Although, such orders are not appealable, this does not leave an appellant without
a remedy at law. Appellant could seek a writ of mandate on the order. (See H.D. Arniz,
LTD. V. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366.)3 Additionally,
appellant could seek to vacate the prefiling order or retain an attorney to file the action on
his behalf. (Luckett v. Panos, supra, 161 Cal.App.4th at p. 95 fn.14; In re Shieh (1993)
17 Cal.App.4th 1154, 1167.) Appellant lost his right to unfettered access to the courts
when he was declared a vexatious litigant. Until he can prove that he has changed his
ways and have the prefiling order lifted, or he can retain counsel who has ethical
responsibilities to file only claims with merit, we will not permit Mr. Hicks to burden
court with the congestion, inefficiencies and costs associated with his cases.
                                        DISPOSITION
       The appeal is dismissed as taken from a nonappealable order.




       3
        As appellant has not asked us to treat his appeal as a writ of mandate, we need
not determine whether this remedy is appropriate in this instance. (H.D. Arniz, LTD. V.
County of San Joaquin , supra. 96 Cal.App.4th at 1367.)
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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




Hicks v. Kulka
H038566

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