Jameson v. Desta, No. D066793 (D4d1 Oct. 20, 2015)
Pro se Plaintiff in this thirteen-year-old case is on his fourth appeal. The first three times he won; over a ten-year span, he managed to get two of trial court’s dismissal orders and a summary judgment reversed. This time, the trial court nonsuited him during his opening statement. Whether right or wrong, he forfeits his appeal on that issue because he couldn’t afford a court reporter to make a record. That seems pretty arbitrary and unfair, particularly since the Legislature recently modified the reporter fee statute—Government Code § 68086(b)—to say that for an indigent litigant with a filing fee waiver, the official reporter’s fee is waived. The court here thinks differently, because the trial court in question does not generally provide official reporters for trials. It makes parties hire their own. So it’s not a question of a fee waiver, but of plaintiff’s inability to afford the private reporter pro tem he needed to hire to make his record. Still seems unfair.
Affirmed.
Full disclosure: I am representing the appellant in this case pro bono in filing a petition for review with the California Supreme Court. We’ll see . . . .
**Update: Review Granted!
Showing posts with label in forma pauperis. Show all posts
Showing posts with label in forma pauperis. Show all posts
Tuesday, November 17, 2015
Wednesday, December 3, 2014
A Not Quite Vexatious Duo
John v. Superior Court, No. B256604 (D2d7 Nov. 10, 2014)
California’s vexatious litigant statutes, Code of Civil Procedure § 319–319.8, apply in both trial court and on appeal. A pro se plaintiff who has been declared vexatious needs to get pre-filing permission from the presiding judge (for trial court) or the presiding justice (for appellate courts) before proceeding. But what the happens when a vexatious litigant get sued, loses, and then wants to appeal? Does she need leave from the presiding justice to pursue her appeal? The court here says no. Neither the language of the statutes, their purposes, or the legislative history warrant requiring pre-filing approval under such circumstances.
Writ granted.
**NOTE: The Supreme Court granted review of this case on February 11, 2015.
Garcia v. Lacey, No. F066681 (D5 Nov. 12, 2014)
Plaintiff in this prisoner case was declared a vexatious litigant under Code of Civil Procedure § 391, which, as I just said, requires any plaintiff who commenced at least five pro per litigations over the past seven years that resulted in adverse results to obtain the presiding judge’s permission before filing again. The defendant submitted court records about nine prior litigations, eight of which were filed in federal court. Five of the federal court cases were dismissed on pre-filing screening under the Prison Reform Litigation Act, which gives federal courts the authority to refuse to grant in forma pauperis applications from pro se prisoners when their complaints are facially meritless, and to refuse to accept the complaint for filing. See 28 U.S.C. §§ 1915, 1915A. In these cases, because no complaint was ever accepted for filing in the federal court, the five actions were never “commenced, prosecuted, or maintained” as required by § 391. Consequently, there were only four matters that actually satisfy the standard, so plaintiff doesn’t yet qualify as vexatious.
Reversed.
California’s vexatious litigant statutes, Code of Civil Procedure § 319–319.8, apply in both trial court and on appeal. A pro se plaintiff who has been declared vexatious needs to get pre-filing permission from the presiding judge (for trial court) or the presiding justice (for appellate courts) before proceeding. But what the happens when a vexatious litigant get sued, loses, and then wants to appeal? Does she need leave from the presiding justice to pursue her appeal? The court here says no. Neither the language of the statutes, their purposes, or the legislative history warrant requiring pre-filing approval under such circumstances.
Writ granted.
**NOTE: The Supreme Court granted review of this case on February 11, 2015.
Garcia v. Lacey, No. F066681 (D5 Nov. 12, 2014)
Plaintiff in this prisoner case was declared a vexatious litigant under Code of Civil Procedure § 391, which, as I just said, requires any plaintiff who commenced at least five pro per litigations over the past seven years that resulted in adverse results to obtain the presiding judge’s permission before filing again. The defendant submitted court records about nine prior litigations, eight of which were filed in federal court. Five of the federal court cases were dismissed on pre-filing screening under the Prison Reform Litigation Act, which gives federal courts the authority to refuse to grant in forma pauperis applications from pro se prisoners when their complaints are facially meritless, and to refuse to accept the complaint for filing. See 28 U.S.C. §§ 1915, 1915A. In these cases, because no complaint was ever accepted for filing in the federal court, the five actions were never “commenced, prosecuted, or maintained” as required by § 391. Consequently, there were only four matters that actually satisfy the standard, so plaintiff doesn’t yet qualify as vexatious.
Reversed.
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