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The Honorable Laurence D. Rubin has served as a Justice on the Court of Appeal, Second Appellate District, Division Eight since 2001. Previously, he was a trial judge on the Los Angeles Superior Court and Santa Monica Municipal Court for 19 years and sat on assignment with the Court of Appeal in 1985, 1992, 1995, and 2000. He is a member of the California Supreme Court’s Advisory Committee on the Code of Judicial Ethics, has chaired the California Judges Association’s Committee on Judicial Ethics, and served as that Association’s Vice President in 1996. He is a past member of the Judicial Council’s Trial Court Coordination Advisory Committee. Justice Rubin has long been active in judicial and legal education, teaching ethics, technology, and appellate practice to various associations of judges and attorneys throughout the state. He has served as a mock trial judge and taught legal classes at UCLA and USC, He is a past President of the UCLA Law Alumni Association, past Governor of the Beverly Hills and Santa Monica Bar Associations, and past President of Beverly Hills Bar Ass’n’s Barristers.
1099C2 Time of Request: Monday, February 23, 2015 16:54:42 EST Client ID/Project Name: Number of Lines: 526 Job Number: 1827:501877433
Research Information
Service: LEXSEE(R) Feature Print Request: Current Document: 1 Source: Get by LEXSEE(R) Search Terms: 231 ca4th 347
Send to: Hoffstadt, Brian CA COURT OF APPEAL - LOS ANGELES 300 S SPRING ST, SOUTH TOWER, 3RD FLOOR LOS ANGELES, CA 90013-1204
ALEYAMMA JOHN, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; SYLVIA CHAN, Real Party in Interest.
B256604
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN
231 Cal. App. 4th 347; 179 Cal. Rptr. 3d 856; 2014 Cal. App. LEXIS 1018
November 10, 2014, Opinion Filed
NOTICE: NOT CITABLE--SUPERSEDED BY GRANT OF REVIEW
SUBSEQUENT HISTORY: Review granted, Depublished by John v. Superior Court, 2015 Cal. LEXIS 751 (Cal., Feb. 11, 2015)
PRIOR HISTORY: [***1] ORIGINAL PROCEEDINGS in mandate. Superior Court No. BV030258, Patti Jo McKay, Judge.
DISPOSITION: Petition granted.
CALIFORNIA OFFICIAL REPORTS SUMMARY
In an unlawful detainer action, the Appellate Division of the Superior Court of Los Angeles declined a motion for a prefiling order by defendant, a tenant who had previously been declared a vexatious litigant, and dismissed her appeals from judgment in favor of the landlord. (Superior Court of Los Angeles County No. BV030258, Patti Jo McKay, Judge.)
The Court of Appeal granted the tenant's petition for writ of mandate and ordered the appellate division to vacate its order dismissing the appeals and to decide the appeals on the merits. The requirement under Code Civ.
Proc., § 391.7, for obtaining leave to file does not apply to an appeal by a self-representing defendant who has previously been declared a vexatious litigant. Such a requirement would be contrary to the express reference in § 391.7 to actions by a plaintiff and would impede a self-represented defendant's right of access to the appellate courts without significantly advancing the underlying purpose of the vexatious litigant statutes. (Opinion by Perluss, P. J., with Woods, J., and Segal, J.,* concurring.)
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
HEADNOTES [*348]
CALIFORNIA OFFICIAL REPORTS HEADNOTES
(1) Statutes § 21--Construction--Legislative Intent--Context--Extrinsic Aids--Response to Prior Interpretations.--The court's primary task in interpreting a statute is to determine the Legislature's intent, giving effect to the law's purpose. The court considers first the words of a statute, as the most reliable indicator of legislative intent. Words must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible. Interpretations that lead to absurd results or render words surplusage are to be avoided. To the extent the statutory language is
Page 1
ambiguous, the court may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy. Additionally, courts must endeavor to construe an ambiguous statute in a manner that avoids any doubt concerning its validity. When a statute has been construed by the courts and the Legislature thereafter reenacts the statute without changing the interpreted language, a presumption is raised that the Legislature was aware of and has acquiesced in that construction.
(2) Parties § 1--Vexatious Litigants--Leave to File--Appeal by Defendant.--A person who has been determined to be a vexatious litigant in prior litigation cannot be required to seek leave of court before filing an appeal in a case in which he or she was the defendant. A defendant who appeals an adverse ruling is not filing new litigation or maintaining litigation, but rather, is attempting to undo the results of litigation that has been instituted against him or her. The holding new litigation as used in Code Civ. Proc., § 391.7, subd. (a), includes the filing of an appeal by a vexatious litigant should be read narrowly as holding that a prefiling order applies to prohibit a vexatious litigant plaintiff from appealing rulings of the trial court without first seeking leave of the appropriate appellate court.
(3) Parties § 1--Vexatious Litigants--Leave to File--Appeal by Defendant--Unlawful Detainer.--In an unlawful detainer case, defendant tenant should have been permitted to appeal a judgment in favor of the landlord, even though the tenant had been declared a vexatious litigant and was subject to a prefiling order under Code Civ. Proc., § 391.7. The requirement for obtaining leave to file does not apply to a vexatious litigant defendant's appeal from an adverse judgment.
[Cal. Forms of Pleading and Practice (2014) ch. 573, Vexatious Litigants, § 573.17.]
COUNSEL: [*349] Aleyamma John, in pro. per., for Petitioner.
No appearance for Respondent.
Zakari Law and Raymond Zakari for Real Party in Interest.
JUDGES: Opinion by Perluss, P. J., with Woods and Segal*, JJ., concurring.
OPINION BY: Perluss, P. J.
OPINION
[**857] PERLUSS, P. J.--The vexatious litigant statutes (Code Civ. Proc., §§ 391-391.7)1 authorize a court to enter a prefiling order that prohibits a self-represented party who has previously been declared a vexatious litigant from "filing any new litigation in the courts of this state" without first obtaining permission from the presiding justice or presiding judge of the court where the litigation is proposed to be filed. (§ 391.7, subd. (a).) "[I]f any new litigation is inadvertently permitted to be filed in propria persona without the presiding judge's permission, [the adverse party] may then obtain its dismissal." (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1171 [126 Cal. Rptr. 3d 98, 253 P.3d 266]; see § 391.7, subd. (c).)
1 Statutory references are to the Code of Civil Procedure.
In 2011 the Legislature amended section 391.7 to provide expressly that a presiding justice, as well as a presiding judge, is authorized [***2] to permit the filing of new litigation by a vexatious litigant subject to a prefiling order. (Stats. 2011, ch. 49, § 1.) [**858] The Legislature thus confirmed prior Court of Appeal decisions that had held vexatious litigants subject to a prefiling order must seek permission to file not only new civil actions in the trial court but also certain proceedings in the appellate courts.
Section 391.7's requirement for obtaining leave to file unquestionably applies to an appeal by a self-represented plaintiff who has previously been declared a vexatious litigant and made subject to a prefiling order. Does it similarly apply to a vexatious litigant defendant's appeal from an adverse judgment? The Appellate Division of the Los Angeles Superior Court ruled it did and ordered petitioner Aleyamma John to obtain approval before continuing with her two related appeals from the judgment in favor of her landlord in an unlawful detainer action. After reviewing John's request
Page 2 231 Cal. App. 4th 347, *; 179 Cal. Rptr. 3d 856, **;
2014 Cal. App. LEXIS 1018, ***1
to file new litigation by a vexatious litigant and finding she had failed to demonstrate the appeals had merit and were not filed for the purpose of harassment or delay, the appellate division dismissed the appeals. [*350]
Because it disregards section 391.7's express reference [***3] to actions by a plaintiff and would impede a self-represented defendant's right of access to the appellate courts without significantly advancing the underlying purpose of the vexatious litigant statutes, we reject this construction of section 391.7. Accordingly, we grant John's petition for a writ of mandate and order the appellate division of the superior court to vacate its order dismissing John's appeals and to decide the appeals on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Unlawful Detainer Action and John's Appeals
John began renting a one-bedroom apartment in Alhambra in December 2008. On September 8, 2011 real party in interest Sylvia Chan doing business as STC Realty, as agent for the owners of the apartment building, served a 60-day notice to quit based on John's failure to comply with her obligations as a tenant, "primarily your obligation to pay the rent."
Chan initiated an unlawful detainer action in November 2011. (Chan v. John (Super. Ct. L.A. County, 2012, No. ALH11U00946).) John represented herself in the lawsuit until shortly before the jury trial began in April 2012. John's defense was apparently based, at least in part, on the contention the owner had improperly attempted to increase her rent and [***4] she had paid all rent lawfully due. The jury returned a verdict in favor of Chan. John's retained counsel substituted out of the case several days later, and John resumed representing herself. A writ of possession issued in May 2012; John vacated the premises after receiving notice from the sheriff's department concerning enforcement of the writ. In postjudgment proceedings in July 2012 Chan was awarded attorney fees of approximately $40,000.
Still representing herself, John filed two notices of appeal from the unlawful detainer action to the appellate division of the superior court--the first, filed on June 7, 2012, was from the underlying judgment in the action; the second, filed on July 17, 2012, from the attorney fee award. The two appeals were consolidated in the appellate division under case No. BV030258.
2. The Prefiling Order from Division Three of This Court
On March 8, 2012 on its own motion in John v. Riegel Property Management, Inc. (May 21, 2012, B236441) (app. dism.), Division Three of this court issued an order to show cause whether John, the plaintiff and appellant in that case, should be declared a vexatious litigant and a prefiling order entered against [**859] her pursuant to section 391.7, subdivision (a). The court also [*351] stated [***5] it would entertain a motion by respondents for an order requiring John to furnish security pursuant to section 391.1. John was given an opportunity to brief the issues and present oral argument.
On April 18, 2012 Division Three declared John a vexatious litigant after taking judicial notice of state court records that, according to the court, "reflect that in the preceding seven years, [John] has prosecuted in propria persona at least five litigations which have been finally determined adversely to her." The court expressly noted "the appellate proceedings by John arose out of trial court proceedings in which John was a plaintiff, not a defendant." The court entered a prefiling order prohibiting John from filing any new litigation in California courts in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation was proposed to be filed; directed the clerk of the court to provide the Judicial Council with a copy of the prefiling order; and, because the court found there was no reasonable probability she would prevail on her appeal, ordered John to furnish security in the sum of $10,000 within 30 days as a condition to proceeding with [***6] her appeal.2 (See In re R.H. (2009) 170 Cal.App.4th 678, 691 [88 Cal.Rptr.3d 650] (R.H.) [appellate court may declare appellant a vexatious litigant]; In re Whitaker (1992) 6 Cal.App.4th 54, 57 [8 Cal. Rptr. 2d 249] [same].)
2 On May 21, 2012 the court dismissed John's appeal because she had failed to comply with the order requiring her to furnish security.
3. The Appellate Division's Order Dismissing the Appeals
On May 1, 2014, after briefing had been completed in the Chan v. John appeals, appellate division Presiding Judge Patti Jo McKay stayed all further proceedings in the case, observing that John was a vexatious litigant subject to a prefiling order based on Division Three's April 18, 2012 findings and order, and directed John within 10 days to obtain permission to continue her
Page 3 231 Cal. App. 4th 347, *349; 179 Cal. Rptr. 3d 856, **858;
2014 Cal. App. LEXIS 1018, ***2
appeals from the presiding judge of the appellate division or, in the alternative, to file a substitution of attorney naming a member of the California State Bar as her attorney of record.
On May 6, 2014 John submitted a request to file new litigation by a vexatious litigant, using Judicial Council form MC-701, and an application for an order to vacate the prefiling order and to remove her name from the Judicial Council vexatious litigant list, using Judicial Council form MC-703. On May 12, 2014 the court denied the motion for a prefiling [***7] order on the ground John had failed to demonstrate her appeals had merit and were not filed for the purpose of harassment or delay and stated it lacked jurisdiction to rule on the application to vacate the prefiling order. (Pursuant to § 391.8, [*352] subd. (a), such an application must be filed "in the court that entered the prefiling order.") Based on its rulings, the court dismissed the appeals filed June 7, 2012 and July 17, 2012.
4. The Writ Proceedings
On May 30, 2014 John petitioned this court for a writ of mandate directing the appellate division of the superior court to vacate its order dismissing her appeals in case No. BV030258 and to decide the appeals on the merits. On June 4, 2014 we invited respondent superior court and real party in interest Chan to file opposition to John's petition, citing Mahdavi v. Superior Court (2008) 166 Cal.App.4th 32, 40-42 [82 Cal. Rptr. 3d 121] (Mahdavi), which held a defendant [**860] who has been declared a vexatious litigant in a prior proceeding is not obligated to obtain leave of the presiding judge or justice prior to filing an appeal of a judgment against him or her. The superior court declined our invitation but submitted a letter with case authority "that may be contrary to the cited case."3 Counsel for real party in interest Chan filed a letter brief opposing the [***8] petition.
3 The superior court letter cited In re Kinney (2011) 201 Cal.App.4th 951 [135 Cal. Rptr. 3d 471], R.H., supra, 170 Cal.App.4th 678, and McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1215 [73 Cal. Rptr. 2d 288]. The issue in In re Kinney and R.H. was whether unsuccessful appeals were properly considered in determining whether an individual was a vexatious litigant under section 391, subdivision (b)(1), not whether leave to file an appeal was required. The court in McColm, the sole authority
cited by the appellate division in the case at bar, held a self-represented plaintiff who had previously been declared a vexatious litigant and made subject to a prefiling order was required to obtain permission to appeal an adverse decision from the trial court.
On June 25, 2014 we issued an order to show cause why the relief requested by John should not be granted. On July 16, 2014 Chan filed her written return to the petition, and on August 5, 2014 John filed her reply. Oral argument was heard on October 30, 2014.
DISCUSSION
1. Standard of Review; Principles of Statutory Interpretation
Whether section 391.7's requirement for obtaining leave to file applies to an appeal by a self-represented defendant who has previously been declared a vexatious litigant and made subject to a prefiling order presents a question of statutory construction. Our review is de novo. (Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1119 [158 Cal. Rptr. 3d 21, 302 P.3d 211]; Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527 [113 Cal. Rptr. 3d 327, 235 P.3d 988].) [*353]
(1) The governing principles of statutory [***9] interpretation are both well established and familiar: "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.] '"'Words must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible.' [Citation.] Interpretations that lead to absurd results or render words surplusage are to be avoided."'" (Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037 [175 Cal. Rptr. 3d 601, 330 P.3d 912]; accord, In re D.B. (2014) 58 Cal.4th 941, 945-946 [169 Cal.Rptr.3d 672, 320 P.3d 1136] ["we 'will not give statutory language a literal meaning if doing so would result in absurd consequences that the Legislature could not have intended'"].)
To the extent the statutory language is ambiguous, "we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history." (Day v. City of Fontana (2001) 25 Cal.4th 268, 272 [105 Cal. Rptr. 2d 457, 19 P.3d 1196]; see Murphy
2014 Cal. App. LEXIS 1018, ***6
v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103-1105 [56 Cal. Rptr. 3d 880, 155 P.3d 284].) "If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy." (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737 [21 Cal. Rptr. 3d 676, 101 P.3d 563]; accord, Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 388 [97 Cal. Rptr. 3d 464, 212 P.3d 736].) [**861] Additionally, courts must endeavor to construe an ambiguous statute in a manner that avoids any doubt concerning its validity. ( [***10] Steen v. Appellate Division of Superior Court (2014) 59 Cal.4th 1045, 1054 [175 Cal. Rptr. 3d 760, 331 P.3d 136]; Young v. Haines (1986) 41 Cal.3d 883, 898 [226 Cal. Rptr. 547, 718 P.2d 909].)
2. California's Vexatious Litigant Statutes and Their Application to Appellate Proceedings
Section 391, subdivision (b), identifies four general situations in which a litigant may be deemed vexatious, including under subdivision (b)(1)--the provision upon which Division Three relied in finding John a vexatious litigant--a person who "[i]n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in small claims court that have been ... finally determined adversely to the person ... ."4 "Litigation" for purposes of the [*354] vexatious litigant statutes is broadly defined to mean "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (§ 391, subd. (a).)
4 Section 391, subdivision (b)'s full definition of "vexatious litigant" includes "a person who does any of the following: [¶] (1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court 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. [¶] (2) After a litigation [***11] has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to
whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined. [¶] (3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay. [¶] (4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence."
Section 391.7, subdivision (a), authorizes a court to enter a prefiling order that prohibits a self-represented vexatious litigant from filing any new "litigation" without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed [***12] to be filed. (See Shalant v. Girardi, supra, 51 Cal.4th at p. 1171; Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 221 [120 Cal. Rptr. 2d 879] [§ 391.7 "'operates beyond the pending case' and authorizes a court to enter a 'prefiling order' that prohibits a vexatious litigant from filing any new litigation in propria persona without first obtaining permission from the presiding judge"].) Permission to file may be granted only if it appears the new litigation has merit and has not been filed for the purpose of harassment or delay. (§ 391.7, subd. (b).) The filing of the lawsuit, if permitted, may be conditioned on the posting of security for the benefit of the defendant. (Ibid.) If new litigation is mistakenly filed by a self-represented vexatious litigant without the permission of the presiding justice or judge, the adverse party may obtain its dismissal under a procedure described in section 391.7, subdivision (c).
The term "litigation" in the vexatious litigant statutes has generally been held to include appeals and certain writ proceedings. (See, e.g., In re Kinney (2011) 201 Cal.App.4th 951, 958 [135 Cal. Rptr. 3d 471] [**862] ["The vexatious litigant statutes do not apply solely to the trial courts. Each writ petition and appeal constitutes 'litigation.'"]; McColm v. Westwood Park Assn., supra, 62 Cal.App.4th at pp. 1216, 1219 (McColm) ["[m]anifestly, 'any civil action or proceeding' includes any appeal or writ proceeding"; "'[l]itigation' for purposes of vexatious litigant requirements ... includes proceedings initiated
2014 Cal. App. LEXIS 1018, ***9
[***13] in the Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or other criminal matters"]; see also Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171-1172 [103 Cal. Rptr. 3d 509] [although a writ petition generally qualifies as a litigation within the meaning of § 391, subd. (a), summary denials of writ petitions do not necessarily constitute a litigation [*355] that has been finally determined adversely to the person within the meaning of § 391, subd. (b)(1)].) Addressing the repeated references in the vexatious litigant statutes to plaintiffs and defendants, McColm held the use of those terms did not mean sections 391.1 through 391.7 applied only in the trial courts. Paraphrasing the definition of plaintiff in section 391, subdivision (d), the court stated, "An appellant or writ petitioner certainly commences, institutes or attempts to maintain the litigation in this court." (McColm, at p. 1217.)
The applicability of a prefiling order's requirement for leave to file new litigation to at least some matters in the Courts of Appeal was confirmed by the 2011 amendment to section 391.7 (Stats. 2011, ch. 49, § 1). As explained by the Assembly Judiciary Committee, "According to the Judicial Council [(which sponsored the legislation)], courts have held that the vexatious litigant statutes also apply in the appellate courts, but this has not been codified. ... This [***14] bill would clarify that the vexatious litigant statute applies to matters in the Courts of Appeal, as well as the trial courts ... ." (Assem. Com. on Judiciary, Rep. on Sen. Bill No. 731 (2011-2012 Reg. Sess.) as amended Mar. 29, 2011, p. 4; see Sen. Com. on Judiciary, Rep. on Sen. Bill No. 731 (2011-2012 Reg. Sess.) as introduced p. 5 ["The Judicial Council notes that it is the practice of the courts to apply the vexatious litigant statute in the Courts of Appeal, even though the current statutory scheme does not include the term 'justice' which would indicate the statute is 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."].)
(2) Notwithstanding the broad sweep of the term "litigation" as defined by section 391, subdivision (a), and case law applying section 391.7 to certain appellate proceedings, the Court of Appeal in Mahdavi, supra, 166 Cal.App.4th 32 held a person who has been determined to be a vexatious litigant in prior litigation cannot be required to seek leave of court before filing an appeal in a
case in which he or she was the defendant. (Id. at p. 37.) The court explained, "A defendant [***15] who appeals an adverse ruling is not filing 'new' litigation or 'maintaining' litigation, but rather, is attempting to 'undo' the results of litigation that has been instituted against him or her. We recognize that in McColm, supra, 62 Cal.App.4th at page 1220, the court used broad language in concluding that 'new litigation' as used in subdivision (a) of section 391.7, includes the filing of an appeal by a vexatious litigant. However, we conclude that McColm should be read narrowly as holding that a prefiling order applies to prohibit a vexatious litigant plaintiff from appealing rulings of the trial court without first seeking leave of the appropriate appellate court." (Mahdavi, at p. 41.) Although agreeing with McColm's holding, the [**863] Mahdavi court concluded the purpose of section 391.7 would not [*356] be served by imposing its limitations on a defendant, even though that individual had previously brought frivolous claims against others. (Mahdavi, at p. 42.)
The Mahdavi court reinforced its interpretation of section 391.7 by examining the definition and use of the terms "plaintiff" and "defendant" in the vexatious litigant statutes, which in its view (and contrary to the analysis in McColm) confirmed that a plaintiff under the statutes is the party who has filed a complaint--"the party who is prosecuting claims [***16] against another party." (Mahdavi, supra, 166 Cal.App.4th at p. 40.) Sections 391.1 through 391.6 all address the rights of a defendant to require the posting of security by a vexatious litigant plaintiff. Even section 391.7, subdivision (b), one of the prefiling order provisions, echoes this language, authorizing a presiding judge to allow the filing of a new lawsuit but to condition the filing upon the furnishing of security " 'for the benefit of the defendants.' " (Mahdavi, at p. 40.) The Mahdavi court also found support in the language of McColm itself for its distinction between a plaintiff who seeks to maintain litigation by filing an appeal or petition for a writ and a defendant who seeks to defend himself or herself in an action by filing an appeal: In discussing the process for deciding whether to grant permission to file the appeal, the McColm court stated consideration should be given to "whether the litigant has demonstrated improper reasons for bringing the original litigation or for taking it to the next court level" (McColm, supra, 62 Cal.App.4th at p. 1217)--language, according to the Mahdavi court, that presumed the prefiling requirement would be applied to a vexatious litigant who had initiated the underlying litigation and
2014 Cal. App. LEXIS 1018, ***13
was then attempting to appeal an adverse ruling. (Mahdavi, at p. 42.)
The underlying facts and the legal [***17] issue in R.H., supra, 170 Cal.App.4th 678--one of the cases identified by the superior court in its letter noting possible contrary case authority--were quite different, as the R.H. court itself observed. (Id. at p. 694.) The question in R.H. was not whether a vexatious litigant must seek leave of court before filing an appeal in a case in which he or she was the defendant, as in Mahdavi, but whether a father's many unsuccessful appeals and writ petitions in dependency proceedings involving his child, which he had not initiated, were the proper basis for declaring him a vexatious litigant--that is, does a failed appeal count as a "litigation" "finally determined adversely to the person" under those circumstances for purposes of finding the individual a vexatious litigant? R.H. held it did. Although questioning whether Mahdavi was even relevant to the issue before it, the R.H. court nonetheless disagreed with Mahdavi's basic analysis: "In our view, Mahdavi took too narrow a view of the vexatious litigant law and its purpose. ... [¶] ... [¶] ... [W]e take the broader view of the vexatious litigant law's, and especially section 391.7's, purpose. It is one which also seeks to protect the court system and its resources as well as other litigants [***18] [*357] [citations] while at the same time providing a workable means by which a vexatious litigant may proceed with litigation." (R.H., at pp. 695-696; see id. at p. 703 ["the vexatious litigant law exists not only to help defendants but to curb misuse of the court system, unreasonably burdened by obsessive litigants pursing groundless litigation"].) R.H. also challenged Mahdavi's reliance on the use of "plaintiff" and "defendant" in the security portions of the vexatious litigant statutes, [**864] emphasizing that section 391.7 (id., subd. (c)), a distinct remedy, authorizes "any party" to move for a prefiling order, which, once issued, applies to the filing of "any litigation presented by a vexatious litigant subject to a prefiling order," not simply proceedings commenced by a "plaintiff." (See R.H., at p. 690.)
3. Section 391.7's Prefiling Order Requirements Do Not Apply to a Self-represented Defendant Appealing from an Adverse Judgment
If one adopts the expansive reading found in the R.H. dicta, section 391.7 requires a self-represented defendant subject to a prefiling order to obtain permission to file an
appeal; leave to file an appeal is not required under the narrower interpretation of the provision articulated in Mahdavi's holding. Based on the language actually used in the [***19] vexatious litigant statutes, the legislative history of section 391.7, and precedent from the analogous context of malicious prosecution, we believe Mahdavi's narrower construction is correct.
a. The language and legislative history of section 391.7 support a construction that does not include self-represented defendants in prefiling requirements
Section 391.7 and its prefiling order provisions were not originally part of the vexatious litigant statutes: Sections 391 to 391.6 were enacted in 1963 (Stats. 1963, ch. 1471, § 1, pp. 3038-3039); section 391.7 was added in 1990 (Stats. 1990, ch. 621, § 3, pp. 3072-3073). (See Shalant v. Girardi, supra, 51 Cal.4th at p. 1169; Bravo v. Ismaj, supra, 99 Cal.App.4th at p. 221.) Reviewing the legislative history of section 391.7 in Shalant, the Supreme Court concluded it showed "a clear focus on precluding vexatious litigants from filing in propria persona unmeritorious new 'actions' or 'lawsuits.' ... The additional remedy provided by section 391.7 was ... 'directed at precluding the initiation of a meritless lawsuit and the costs associated with defending such litigation.'" (Shalant, at p. 1175, fn. omitted, italics added by Shalant.) In a footnote the court further explained the legislation that enacted section 391.7 had been proposed by the California Attorney General's Office, which stated it "'spends substantial amounts of time defending unmeritorious lawsuits brought [***20] by vexatious litigants.'" (Shalant, at p. 1175, fn. 7, italics added by Shalant.) The Supreme Court continued, "The committee analysis [*358] for the ensuing hearing, in explaining the need for legislation, relayed the Attorney General's concern with the resources spent defending 'unmeritorious lawsuits brought by vexatious litigants' and his view that the law should be strengthened to 'prevent the waste of public funds required for the defense of frivolous suits.'" (Ibid., italics added by Shalant.)5
5 The legislation also expanded the definition of a defendant entitled to the protections of the vexatious litigant statutes to include a "governmental entity." (§ 391, subd. (e), as amended by Stats. 1990, ch. 621, § 1, p. 3071.)
Consistent with the Legislature's concern for preventing the initiation of unmeritorious lawsuits,
2014 Cal. App. LEXIS 1018, ***16
section 391.7, subdivision (c), as enacted in 1990, provided if a vexatious litigant subject to a prefiling order improperly filed new litigation without first obtaining an order permitting the filing, any party could file a notice with the clerk "stating that the plaintiff is a vexatious litigant subject to a prefiling order." The filing of such a notice automatically stayed the litigation, which would then be dismissed if leave to [***21] file was not thereafter [**865] obtained by "the plaintiff" within 10 days. (Stats. 1990, ch. 621, § 3, p. 3074.) As the Court of Appeal explained in Mahdavi, the term "plaintiff" is not commonly understood to include a defendant who has filed an appeal from an adverse decision by the trial court; and the definition of plaintiff in section 391, subdivision (d), as someone who "commences, institutes or maintains a litigation" does not compel any such strained construction here. (See Mahdavi, supra, 166 Cal.App.4th at p. 39; see also § 308 ["[i]n [a civil] action the party complaining is known as the plaintiff, and the adverse party as the defendant"].)6
6 As discussed, Mahdavi analyzed the use of the terms "plaintiff" and "defendant" in the portions of the vexatious litigant statutes relating to orders requiring the plaintiff to furnish security for the benefit of the defendant. (Mahdavi, supra, 166 Cal.App.4th at p. 40.) The R.H. court criticized this analysis, observing that the prefiling order provisions of the statute are separate and distinct from the security provisions. (R.H., supra, 170 Cal.App.4th at p. 694.) Neither Mahdavi nor R.H. discussed the notice, stay and dismissal provisions of section 391.7, subdivision (c), which are an integral part of the prefiling order provisions and which by their express terms are limited to the dismissal of litigation improperly filed [***22] by a plaintiff.
Significantly for our purposes, when the Legislature amended section 391.7 in 2011 to authorize a "presiding justice," as well as a "presiding judge" to permit the filing of litigation by a vexatious litigant subject to a prefiling order, it also amended section 391.7, subdivision (c), to allow either a presiding justice or presiding judge, not just a party to the action, to direct the clerk to file and serve the notice stating "the plaintiff is a vexatious litigant subject to a prefiling order ... ," thereby triggering an automatic stay of the litigation and its likely dismissal. (Stats. 2011, ch. 49, § 1; see Sen. Com. on Judiciary, Rep. on Sen. Bill No. 731 (2011-2012 Reg. Sess.) as
introduced, [*359] p. 5.)7 Notwithstanding those amendments, the terminology "plaintiff" and "defendant" was left unchanged. Thus, at the same time the Legislature expressly confirmed case law holding the prefiling order requirements applied to the Courts of Appeal and modified other aspects of section 391.7, subdivision (c), it kept in place the apparent limitation of these provisions to a vexatious litigant plaintiff, rather than expanding or clarifying that in the appellate context they applied to all vexatious litigant appellants, whether plaintiff or defendant in the trial [***23] court.8
7 The Senate Judiciary Committee explained, "This bill would also authorize the presiding justice or presiding judge (or his or her designee) to instruct the clerk of the court to notify parties of a vexatious litigant's status in instances when the clerk may have mistakenly filed new litigation from a vexatious litigant without the prefiling order. Currently, parties to the litigation may themselves give notice to the clerk if they are aware that a party has been declared to be a vexatious litigant. The court clerk then gives notice to all parties. However, there may be occasions when the defendant is unaware of the plaintiff's vexatious litigant status because the prefiling order was mistakenly left off the complaint. In that case, this bill would correct this problem by authorizing the court to direct the clerk to notify the parties." (Sen. Com. on Judiciary, Rep. on Sen. Bill No. 731 (2011-2012 Reg. Sess.) as introduced, p. 5.) 8 Unlike the R.H. court, we do not find it significant that section 391.7, subdivision (a), authorizes "any party," as well as the court on its own motion, to request a prefiling order to prohibit a vexatious litigant from filing new litigation. The process for requesting entry of [***24] a prefiling order set forth in subdivision (a), available not only to defendants but also to cross-complainants and cross-defendants, is distinct from the procedures for enforcement of the prefiling order once obtained, which section 391.7, subdivisions (b) and (c), by their terms limit to actions against plaintiffs who are vexatious litigants for the benefit of defendants who are the adverse parties.
[**866] (3) Legislative silence is not the most powerful interpretive tool. Nonetheless, we are persuaded
2014 Cal. App. LEXIS 1018, ***20
by the continued use of the term plaintiff in section 391.7, subdivision (c), taken together with the analysis and holding in Mahdavi and the express purpose of section 391.7 to prevent the need to defend meritless lawsuits, as set forth in the portions of the legislative history emphasized in Shalant, that the requirement for obtaining leave to file does not apply to a vexatious litigant defendant's appeal from an adverse judgment. (See generally People v. Bonnetta (2009) 46 Cal.4th 143, 151 [92 Cal. Rptr. 3d 370, 205 P.3d 279] ["[a]lthough the absence of legislative response to a judicial construction of a statute will not be deemed an implied ratification of that construction, when a statute has been construed by the courts and the Legislature thereafter reenacts the statute without changing the interpreted language, a presumption is raised that the Legislature [***25] was aware of and has acquiesced in that construction"]; People v. Blakeley (2000) 23 Cal.4th 82, 89 [96 Cal. Rptr. 2d 451, 999 P.2d 675] ["when the Legislature amends a statute without changing those portions of the statute that have [*360] previously been construed by the courts, the Legislature is presumed to have known of and to have acquiesced in the previous judicial construction"].)9
9 A number of cases have upheld the vexatious litigant statutes against constitutional challenges because they are narrowly drawn and thus do not impermissibly impede the right of access to the courts. (See, e.g., R.H., supra, 170 Cal.App.4th at p. 702 ["any impairment of the right to petition must be narrowly drawn"]; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 541 [96 Cal. Rptr. 3d 99] [California's vexatious litigant statutes are constitutional, in part, because the "statutes are narrowly drawn ..."]; Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 60 [61 Cal. Rptr. 2d 694] [vexatious litigant statutes are comparable to a licensing or permit system "'administered pursuant to narrowly drawn, reasonable and definite standards' which represent 'government's only practical means of managing competing uses of public facilities'"]; see also Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 786 [55 Cal. Rptr. 3d 112, 152 P.3d 416] [evaluating procedural due process challenge in light of practical application of vexatious litigant statutes by trial court].) Although restricting a vexatious litigant defendant's right to appeal by requiring a
preliminary showing [***26] of merit might well survive constitutional scrutiny, to avoid doubts as to the validity of the statute, any ambiguity should be resolved in favor of allowing a defendant's appeal without prefiling permission. (See Steen v. Appellate Division of Superior Court, supra, 59 Cal.4th at p. 1054.)
b. A narrow construction of section 391.7 is reinforced by analogous precedent in the law of malicious prosecution
This distinction we recognize between an appeal by a vexatious litigant plaintiff, which requires leave to file from the presiding justice, and one by a vexatious litigant defendant, which does not, is fully consonant with the closely related principle that, while an attorney's participation in a plaintiff's appeal can provide the basis for a malicious prosecution action (see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 297 [46 Cal. Rptr. 3d 638, 139 P.3d 30]), pursuit of an appeal by a defendant cannot (see, e.g., Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 794 [226 Cal. Rptr. 90, 718 P.2d 77] [meritless appeal filed solely for the benefit of delay or to coerce the plaintiff into settling is nonetheless an act authorized by law; "a defendant's appeal cannot be considered a separate action 'seeking affirmative relief,' but rather is merely the continuation of an attempt 'to repel' plaintiff's attack"]).
The Supreme Court in Zamos v. Stroud (2004) 32 Cal.4th 958, 966 [12 Cal. Rptr. 3d 54, 87 P.3d 802] [**867] held a plaintiff (or at least the plaintiff's counsel) may be liable for malicious prosecution, even if the lawsuit [***27] had been properly begun, if he or she continued the action after learning there was no probable cause for the proceeding. In Soukup it held, "The filing of an appeal is '"the continuation of an action"'" within the meaning of Zamos. (Soukup, supra, 39 Cal.4th at p. 297.) The Zamos court explained why continuing an unmeritorious lawsuit, not simply initiating one, was properly the subject of the tort of malicious prosecution: "Continuing an action one discovers to be baseless harms the defendant and burdens the court system just as much as [*361] initiating an action known to be baseless from the outset." (Zamos, at p. 969.) That, of course, is precisely the rationale for requiring a self-represented vexatious litigant plaintiff subject to a prefiling order to seek permission to file an appeal, not just to commence the underlying lawsuit--the unmeritorious appeal, just like a trial court action, burdens both the defendant and
2014 Cal. App. LEXIS 1018, ***24
the court system itself. However, the Zamos court distinguished a defendant's filing of an arguably meritless appeal, explaining, "The operative distinction, then, is between continuing a prosecution and continuing a defense. In Coleman, the defendant in the malicious prosecution action had merely continued its defense of [***28] the underlying wrongful death action by causing the filing of the appeal in that action." (Ibid.) Here, too, John, although previously found to be a vexatious litigant, was merely continuing her defense of the unlawful detainer action, seeking to repel her landlord's attack. She is entitled to do so without first seeking leave of court.
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue directing the appellate division of the superior court to vacate its May 12, 2014 order dismissing John's appeals from the unlawful detainer action. John is to recover her costs in this proceeding.
Woods J., and Segal, J.,* concurred.
2014 Cal. App. LEXIS 1018, ***27
1099C2 ********** Print Completed **********
Time of Request: Monday, February 23, 2015 16:54:42 EST
Print Number: 1827:501877433 Number of Lines: 526 Number of Pages: 10
Send To: Hoffstadt, Brian CA COURT OF APPEAL - LOS ANGELES 300 S SPRING ST, SOUTH TOWER, 3RD FLOOR LOS ANGELES, CA 90013-1204
Philo Riggs, as Guardian ad litem et al., Appellants, v. Elmer E. Palmer et al., Respondents
[NO NUMBER IN ORIGINAL]
115 N.Y. 506; 22 N.E. 188; 1889 N.Y. LEXIS 1231
June 21, 1889, Submitted October 8, 1889, Decided
PRIOR HISTORY: [***1] Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made February 5, 1887, which affirmed a judgment dismissing the complaint entered upon the report of a referee.
Owens v. Owens (100 N. C. 240) disapproved.
DISPOSITION: Judgment in accordance with the prevailing opinion.
SYLLABUS
It was not the intention of the legislature, in the general laws passed for the devolution of property by will or descent, that they should, and they do not, operate in favor of one who murdered his ancestor or benefactor in order to speedily come into possession of his estate either as devisee, legatee or heir-at-law. (Danforth and Gray, JJ., dissenting.)
Where, therefore, a beneficiary under a will, in order that he might prevent revocation of the provision in his favor and to obtain the speedy enjoyment and possession of the property, willfully murdered the testator, held (Danforth and Gray, JJ., dissenting), that such beneficiary, by reason of the crime committed by him, was deprived of any interest in the estate left by his victim, and so was not entitled to the property either as donee under the will or as heir or next of [***2] kin; and
that an action was maintainable to cancel said provisions.
All laws, as well as all contracts, may be controlled in their operation and effect by these general fundamental maxims of the common law, viz.: No one shall be permitted to profit by his own fraud, to take advantage of his own wrong, to found any claim upon his own inequity or to acquire property by his own crime.
A thing which is within the letter of a statute is not within the statute unless it is within the intention of the law-makers.
This action was brought to have the will of Francis B. Palmer, deceased, so far as it devises and bequeaths property to Elmer E. Palmer, canceled and annulled.
The facts are sufficiently stated in the opinion.
COUNSEL: Leslie W. Russell and C. E. Sanford for appellants. The right of Francis B. Palmer to make another will was a sacred one, entitled to the protection of the law, and he had the same right to enjoy his property until death. Elmer E. Palmer violated both of these rights, which are civil rights, independently of criminal punishment. (Broom's Leg. Max. 275; Co. on Litt. 148 b; Rice v. Manley, 66 N. Y. 82; M. L. Ins. Co. v. Armstrong, [***3] 117 U.S. 591, 600.) No court will lend its aid to a man who founds his cause of action upon a fraudulent or illegal act. (Holman v. Johnson, Cowp. 343.) The courts favor a decision which upholds common decency and
Page 1
common morals, and violates no rule of law or equity. ( Piper v. Hoard, 107 N. Y. 82.) Wherever a moral question was involved in the application of civil rights, the civil law, whether announced in the institutes, codes and pandects, or whether it rested simply in the application of unwritten law, was founded, so far as the courts could take cognizance of human action, on fas jus, et boni mores. (Justinian Legislation.) If a beneficiary attempts the life of the testator, he cannot take under the testament. (1 Domat's Civ. Law, pt. 2, tit. 1, § 3; 2 Cush. [ed. 1850] 78, 84; Pothier on Successions, chap. 1, § 2, art. 4; 4 Toullier, 113, 114; 4 Duranton, 111; 3 Marcade, 42; Code Napoleon, art. 727; Spanish Partidas, 994; Louisiana Code, 1560, 1710.) The claim can be sustained upon the ground that Elmer Palmer is estopped by his own conduct from claiming the title to this property, or that the condition upon which he takes has, in contemplation of law, [***4] happened. (Bigelow on Estop. 370; Herman on Estop. §§ 731, 733-735, 740, 743, 991; 2 Story's Eq. Jur. §§ 1533, 1544; Caulfield v. Sullivan, 85 N. Y. 153; Chamberlain v. Chamberlain, 43 id. 425, 442; Leonard v. Crommelin, 1 Edw. Ch. 206; Shivers v. Goar, 40 Ga. 676; Cox v. Rogers, 77 Penn. St. 160.) It will not be construed, no matter what the language, that the legislature intended to allow a public mischief or wrong. ( Smith v. People, 47 N. Y. 330, 337; Code of Civ. Pro. 866; Anderson v. Anderson, 19 N. E. Rep. 427; 112 N. Y. 104; Broom's Leg. Max. 19, 20; Finch's Law, 75, 76; Noy, Max. [9th ed.] 2; Doct. and Stud. [18th ed.] 15, 16.)
W. M. Hawkins for respondents. Where a legatee, by improper means, prevents the testator from making proposed changes in his will, this prevention cannot operate to invalidate the will. ( Leaycraft v. Simmons, 3 Bradf. 35; 12 Am. Dec. 375.) It does not lie with the court to enhance the pains, penalties and forfeitures provided by law for the punishment of crime, nor can it add any disability to those pains and penalties not expressly declared by the Constitution or laws. ( [***5] People v. Thurston, 25 Hun, 456-468; 2 Keyes, 294.) When a case is new in principle, it is necessary to have recourse to legislative interposition to remedy the grievance; but when the question is new in instance, and the only question is upon the application of a principle recognized in law, can the courts act? (Broom's Leg. Max. [4th ed.] 154; Civ. Code of Canada, 95, 142; South-East. Rep. 794; Owens v. Owens, 100 N. C. 240.) Since the repeal of the act of 1799 by the Revised Statutes it cannot be successfully urged that Elmer E. Palmer is civilly dead. (6 Johns. Ch. 118; 21 Alb. L.
Jour. 268; 38 id. 394.)
JUDGES: Earl, J. Gray, J. (dissenting). All concur with Earl, J., except Gray, J., who reads dissenting opinion, and Danforth, J., concurring.
OPINION BY: EARL
OPINION
[*508] [**188] On the 13th day of August 1880, Francis B. Palmer made his last will and testament, in which he gave small legacies to his two daughters, Mrs. Riggs and Mrs. Preston, the plaintiffs in this action, and the remainder of his estate to his grandson, the defendant, Elmer E. Palmer, subject to the support of Susan Palmer, his mother, with a gift over to the two daughters, subject to [***6] the support of Mrs. Palmer, in case Elmer should survive him and die under age, unmarried and without any issue. The testator at the date of his will owned a farm [**189] and considerable personal property. He was a widower, and thereafter, in March 1882, he was married to Mrs. Bresee, with whom before his marriage he entered into an ante-nuptial contract in which it was agreed that, in lieu of dower and all other claims upon his estate in case she survived him, she should have her support upon his farm during her life, and such support was expressly charged upon the farm. At the date of the will, and, subsequently, to the death of the testator, Elmer lived with him as a member of his family, and at his death was sixteen years old. He knew of the provisions made in his favor in the will, and, that he might prevent his [*509] grandfather from revoking such provisions, which he had manifested some intention to do, and to obtain the speedy enjoyment and immediate possession of his property, he willfully murdered him by poisoning him. He now claims the property, and the sole question for our determination is, can he have it? The defendants say that the testator is dead; [***7] that his will was made in due form and has been admitted to probate, and that, therefore, it must have effect according to the letter of the law.
It is quite true that statutes regulating the making, proof and effect of wills, and the devolution of property, if literally construed, and if their force and effect can in no way and under no circumstances be controlled or modified, give this property to the murderer.
The purpose of those statutes was to enable testators to dispose of their estates to the objects of their bounty at
Page 2 115 N.Y. 506, *; 22 N.E. 188, **; 1889 N.Y. LEXIS 1231, ***3
death, and to carry into effect their final wishes legally expressed; and in considering and giving effect to them this purpose must be kept in view. It was the intention of the law-makers that the donees in a will should have the property given to them. But it never could have been their intention that a donee who murdered the testator to make the will operative should have any benefit under it. If such a case had been present to their minds, and it had been supposed necessary to make some provision of law to meet it, it cannot be doubted that they would have provided for it. It is a familiar canon of construction that a thing which is within the intention [***8] of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers. The writers of laws do not always express their intention perfectly, but either exceed it or fall short of it, so that judges are to collect it from probable or rational conjectures only, and this is called rational interpretation; and Rutherforth, in his Institutes (p. 407), says: "When we make use of rational interpretation, sometimes we restrain the meaning of the writer so as to take in less, and sometimes [*510] we extend or enlarge his meaning so as to take in more than his words express."
Such a construction ought to be put upon a statute as will best answer the intention which the makers had in view, for qui haeret in litera, haeret in cortice. In Bacon's Abridgment (Statutes I, 5); Puffendorf (book 5, chapter 12), Rutherforth (pp. 422, 427), and in Smith's Commentaries (814), many cases are mentioned where it was held that matters embraced in the general words of statutes, nevertheless, were not within the statutes, because it could not have been [***9] the intention of the law-makers that they should be included. They were taken out of the statutes by an equitable construction, and it is said in Bacon: "By an equitable construction, a case not within the letter of the statute is sometimes holden to be within the meaning, because it is within the mischief for which a remedy is provided. The reason for such construction is that the law-makers could not set down every case in express terms. In order to form a right judgment whether a case be within the equity of a statute, it is a good way to suppose the law-maker present, and that you have asked him this question, did you intend to comprehend this case? Then you must give yourself such answer as you imagine he, being an upright and reasonable man, would have given. If this be that he did mean to comprehend it, you may safely hold the case to
be within the equity of the statute; for while you do no more than he would have done, you do not act contrary to the statute, but in conformity thereto." In some cases the letter of a legislative act is restrained by an equitable construction; in others it is enlarged; in others the construction is contrary to the letter. The equitable construction [***10] which restrains the letter of a statute is defined by Aristotle, as frequently quoted, in this manner: Aequitas est correctio legis generaliter latoe qua parti deficit. If the law-makers could, as to this case, be consulted, would they say that they intended by their general language that the property of a testator or of an ancestor should pass to one who had taken his life for the express purpose of getting his property? In 1 Blackstone's [*511] Commentaries (91) the learned author, speaking of the construction of statutes, says: "If there arise out of them any absurd consequences manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. * * * When some collateral matter arises out of the general words, and happen to be unreasonable, then the judges are in decency to conclude that the consequence was not foreseen by the parliament, and, therefore, they are at liberty to expound the statute by equity and only quoad hoc disregard it;" and he gives as an illustration, if an act of parliament gives a man power to try all causes that arise within his manor of Dale, yet, if a cause should arise in which he himself is party, [***11] the act is construed not to extend to that because it is unreasonable that any man should determine his own quarrel.
There was a statute in Bologna that whoever drew blood in the streets should be severely punished, and yet it was held not to apply to the case of a barber [**190] who opened a vein in the street. It is commanded in the Decalogue that no work shall be done upon the Sabbath, and yet, giving the command a rational interpretation founded upon its design, the Infallible Judge held that it did not prohibit works of necessity, charity or benevolence on that day.
What could be more unreasonable than to suppose that it was the legislative intention in the general laws passed for the orderly, peaceable and just devolution of property, that they should have operation in favor of one who murdered his ancestor that he might speedily come into the possession of his estate? Such an intention is inconceivable. We need not, therefore, be much troubled by the general language contained in the laws.
Page 3 115 N.Y. 506, *509; 22 N.E. 188, **189;
1889 N.Y. LEXIS 1231, ***7
Besides, all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit [***12] by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered [*512] in all civilized countries, and have nowhere been superseded by statutes. They were applied in the decision of the case of the New York Mutual Life Insurance Company v. Armstrong (117 U.S. 591). There it was held that the person who procured a policy upon the life of another, payable at his death, and then murdered the assured to make the policy payable, could not recover thereon. Mr. Justice Field, writing the opinion, said: "Independently of any proof of the motives of Hunter in obtaining the policy, and even assuming that they were just and proper, he forfeited all rights under it when, to secure its immediate payment, he murdered the assured. It would be a reproach to the jurisprudence of the country if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building that he had willfully fired."
These maxims, without any statute [***13] giving them force or operation, frequently control the effect and nullify the language of wills. A will procured by fraud and deception, like any other instrument, may be decreed void and set aside, and so a particular portion of a will may be excluded from probate or held inoperative if induced by the fraud or undue influence of the person in whose favor it is. ( Allen v. M'Pherson, 1 H. L. Cas. 191; Harrison's Appeal, 48 Conn. 202.) So a will may contain provisions which are immoral, irreligious or against public policy, and they will be held void.
Here there was no certainty that this murderer would survive the testator, or that the testator would not change his will, and there was no certainty that he would get this property if nature was allowed to take its course. He, therefore, murdered the testator expressly to vest himself with an estate. Under such circumstances, what law, human or divine, will allow him to take the estate and enjoy the fruits of his crime? The will spoke and became operative at the death of the testator. He caused that death, and thus by his crime made it speak and have operation. Shall it speak and operate in his favor? If he had met [***14] the testator and taken his property by
[*513] force, he would have had no title to it. Shall he acquire title by murdering him? If he had gone to the testator's house and by force compelled him, or by fraud or undue influence had induced him to will him his property, the law would not allow him to hold it. But can he give effect and operation to a will by murder, and yet take the property? To answer these questions in the affirmative, it seems to me, would be a reproach to the jurisprudence of our state, and an offense against public policy.
Under the civil law evolved from the general principles of natural law and justice by many generations of jurisconsults, philosophers and statesmen, one cannot take property by inheritance or will from an ancestor or benefactor whom he has murdered. (Domat, part 2, book 1, tit. 1, § 3; Code Napoleon, § 727; Mackeldy's Roman Law, 530, 550.) In the Civil Code of Lower Canada the provisions on the subject in the Code Napoleon have been substantially copied. But, so far as I can find, in no country where the common law prevails has it been deemed important to enact a law to provide for such a case. Our revisers and law-makers were familiar [***15] with the civil law, and they did not deem it important to incorporate into our statutes its provisions upon this subject. This is not a casus omissus. It was evidently supposed that the maxims of the common law were sufficient to regulate such a case and that a specific enactment for that purpose was not needed.
For the same reasons the defendant Palmer cannot take any of this property as heir. Just before the murder he was not an heir, and it was not certain that he ever would be. He might have died before his grandfather, or might have been disinherited by him. He made himself an heir by the murder, and he seeks to take property as the fruit of his crime. What has before been said as to him as legatee applies to him with equal force as an heir. He cannot vest himself with title by crime.
My view of this case does not inflict upon Elmer any [*514] greater or other punishment for his crime than the law specifies. It takes from him no property, but simply holds that he shall not acquire property by his crime, and thus be rewarded for its commission.
Our attention is called to Owens v. Owens (100 N. C. 240), as a case quite like this. There a wife had been [***16] convicted of being an accessory before the fact to the murder of her husband, and it was held that she was, nevertheless, entitled to dower. I am unwilling to
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assent to the doctrine of that case. The statutes provide dower for a wife who has the misfortune to survive her husband and thus lose his support [**191] and protection. It is clear beyond their purpose to make provision for a wife who by her own crime makes herself a widow and willfully and intentionally deprives herself of the support and protection of her husband. As she might have died before him, and thus never have been his widow, she cannot by her crime vest herself with an estate. The principle which lies at the bottom of the maxim, volenti non fit injuria, should be applied to such a case, and a widow should not, for the purpose of acquiring, as such, property rights, be permitted to allege a widowhood which she has wickedly and intentionally created.
The facts found entitled the plaintiffs to the relief they seek. The error of the referee was in his conclusion of law. Instead of granting a new trial, therefore, I think the proper judgment upon the facts found should be ordered here. The facts have [***17] been passed upon twice with the same result, first upon the trial of Palmer for murder, and then by the referee in this action. We are, therefore, of opinion that the ends of justice do not require that they should again come in question.
The judgment of the General Term and that entered upon the report of the referee should, therefore, be reversed and judgment should be entered as follows: That Elmer E. Palmer and the administrator be enjoined from using any of the personalty or real estate left by the testator for Elmer's benefit; that the devise and bequest in the will to Elmer be declared [*515] ineffective to pass the title to him; that by reason of the crime of murder committed upon the grandfather he is deprived of any interest in the estate left by him; that the plaintiffs are the true owners of the real and personal estate left by the testator, subject to the charge in favor of Elmer's mother and the widow of the testator, under the ante-nuptial agreement, and that the plaintiffs have costs in all the courts against Elmer.
DISSENT BY: GRAY
DISSENT
Gray, J. (dissenting). This appeal presents an extraordinary state of facts, and the case, in respect of them, I believe, is without [***18] precedent in this state.
The respondent, a lad of sixteen years of age, being aware of the provisions in his grandfather's will, which constituted him the residuary legatee of the testator's estate, caused his death by poison in 1882. For this crime he was tried and was convicted of murder in the second degree, and at the time of the commencement of this action he was serving out his sentence in the state reformatory. This action was brought by two of the children of the testator for the purpose of having those provisions of the will in the respondent's favor canceled and annulled.
The appellants' argument for a reversal of the judgment, which dismissed their complaint, is that the respondent unlawfully prevented a revocation of the existing will, or a new will from being made, by his crime, and that he terminated the enjoyment by the testator of his property and effected his own succession to it by the same crime. They say that to permit the respondent to take the property willed to him would be to permit him to take advantage of his own wrong.
To sustain their position the appellants' counsel has submitted an able and elaborate brief, and, if I believed that the decision of [***19] the question could be affected by considerations of an equitable nature, I should not hesitate to assent to views which commend themselves to the conscience. But the matter does not lie within the domain of conscience. We are bound by the rigid rules of law, which have been established by the legislature, and within the limits of which the determination [*516] of this question is confined. The question we are dealing with is, whether a testamentary disposition can be altered, or a will revoked, after the testator's death, through an appeal to the courts, when the legislature has, by its enactments, prescribed exactly when and how wills may be made, altered and revoked, and, apparently, as it seems to me, when they have been fully complied with, has left no room for the exercise of an equitable jurisdiction by courts over such matters. Modern jurisprudence, in recognizing the right of the individual, under more or less restrictions, to dispose of his property after his death, subjects it to legislative control, both as to extent and as to mode of exercise. Complete freedom of testamentary disposition of one's property has not been and is not the universal rule; as we see from [***20] the provisions of the Napoleonic Code, from those systems of jurisprudence in other countries which are modeled upon the Roman law, and from the statutes of many of our states. To the statutory restraints,
Page 5 115 N.Y. 506, *514; 22 N.E. 188, **190;
1889 N.Y. LEXIS 1231, ***16
which are imposed upon the disposition of one's property by will, are added strict and systematic statutory rules for the execution, alteration and revocation of the will; which must be, at least, substantially, if not exactly, followed to insure validity and performance. The reason for the establishment of such rules, we may naturally assume, consists in the purpose to create those safeguards about these grave and important acts, which experience has demonstrated to be the wisest and surest. That freedom, which is permitted to be exercised in the testamentary disposition of one's estate by the laws of the state, is subject to its being exercised in conformity with the regulations of the statutes. The capacity and the power of the individual to dispose of his property after death, and the mode by which that power can be exercised, are matters of which the legislature has assumed the entire control, and has undertaken to regulate with comprehensive particularity.
The appellants' [***21] argument is not helped by reference to those rules of the civil law, or to those laws of other governments, by which the heir or legatee is excluded from benefit under the testament, if he has been convicted of killing, or [*517] attempting to kill, the testator. [**192] In the absence of such legislation here, the courts are not empowered to institute such a system of remedial justice. The deprivation of the heir of his testamentary succession by the Roman law, when guilty of such a crime, plainly, was intended to be in the nature of a punishment imposed upon him. The succession, in such a case of guilt, escheated to the exchequer. (See Domat's Civil Law, pt. 2, book 1, tit. 1, § 3.)
I concede that rules of law, which annul testamentary provision made for the benefit of those who have become unworthy of them, may be based on principles of equity and of natural justice. It is quite reasonable to suppose that a testator would revoke or alter his will, where his mind has been so angered and changed as to make him unwilling to have his will executed as it stood. But these principles only suggest sufficient reasons for the enactment of laws to meet such cases.
The statutes [***22] of this state have prescribed various ways in which a will may be altered or revoked; but the very provision, defining the modes of alteration and revocation, implies a prohibition of alteration or revocation in any other way. The words of the section of the statute are: "No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be
revoked or altered otherwise," etc. Where, therefore, none of the cases mentioned are met by the facts, and the revocation is not in the way described in the section, the will of the testator is unalterable. I think that a valid will must continue as a will always, unless revoked in the manner provided by the statutes. Mere intention to revoke a will does not have the effect of revocation. The intention to revoke is necessary to constitute the effective revocation of a will; but it must be demonstrated by one of the acts contemplated by the statute. As Woodworth, J., said in Dan v. Brown (4 Cow. 490): "Revocation is an act of the mind, which must be demonstrated by some outward and visible sign of revocation." The same learned judge said in that case: "The rule is that if the testator lets the will [*518] [***23] stand until he dies, it is his will; if he does not suffer it to do so, it is not his will." ( Goodright v. Glasier, 4 Burr. 2512, 2514; Pemberton v. Pemberton, 13 Ves. 290.)
The finding of fact of the referee, that, presumably, the testator would have altered his will, had he known of his grandson's murderous intent, cannot affect the question. We may concede it to the fullest extent; but still the cardinal objection is undisposed of, that the making and the revocation of a will are purely matters of statutory regulation, by which the court is bound in the determination of questions relating to these acts. Two cases in this state and in Kentucky, at an early day, seem to me to be much in point. Gains v. Gains (2 Marshall, 190), was decided by the Kentucky Court of Appeals in 1820. It was there urged that the testator intended to have destroyed his will, and that he was forcibly prevented from doing so by the defendant in error or devisee, and it was insisted that the will, though not expressly, was thereby virtually revoked. The court held, as the act concerning wills prescribed the manner in which a will might be revoked, that as none of the acts evidencing [***24] revocation were done, the intention could not be substituted for the act. In that case the will was snatched away and forcibly retained. In 1854, Surrogate Bradford, whose opinions are entitled to the highest consideration, decided the case of Leaycraft v. Simmons (3 Bradf. 35). In that case the testator, a man of eighty-nine years of age, desired to make a codicil to his will, in order to enlarge the provisions for his daughter. His son having the custody of the instrument, and the one to be prejudiced by the change, refused to produce the will, at testator's request, for the purpose of alteration. The learned surrogate refers to the provisions of the civil law for such and other cases of unworthy conduct in the heir
Page 6 115 N.Y. 506, *516; 22 N.E. 188, **191;
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or legatee, and says, "our statute has undertaken to prescribe the mode in which wills can be revoked (citing the statutory provision). This is the law by which I am governed in passing upon questions touching the revocation of wills. The whole of this subject is now regulated by statute, and a mere intention to [*519] revoke, however well authenticated, or however defeated, is not sufficient." And he held that the will must be admitted to probate. [***25] I may refer also to a case in the Pennsylvania courts. In that state the statute prescribed the mode for repealing or altering a will, and in Clingan v. Mitcheltree (31 Pa. State Rep. 25) the Supreme Court of the state held, where a will was kept from destruction by the fraud and misrepresentation of the devisee, that to declare it canceled as against the fraudulent party would be to enlarge the statute.
I cannot find any support for the argument that the respondent's succession to the property should be avoided because of his criminal act, when the laws are silent. Public policy does not demand it, for the demands of public policy are satisfied by the proper execution of the laws and the punishment of the crime. There has been no convention between the testator and his legatee, nor is there any such contractual element in such a disposition of property by a testator, as to impose or imply conditions in the legatee. The appellants' argument practically amounts to this: That as the legatee has been guilty of a crime, by the commission of which he is placed in a
position to sooner receive the benefits of the testamentary provision, his rights to the property should be forfeited [***26] and he should be divested of his estate. To allow their argument to prevail would involve the diversion by the court of the testator's estate into the hands of persons, whom, possibly enough, for all we know, the testator might not have chosen or desired as its recipients. Practically the court is asked to make another will for the testator. The laws do not warrant this judicial action, and [**193] mere presumption would not be strong enough to sustain it.
But more than this, to concede appellants' views would involve the imposition of an additional punishment or penalty upon the respondent. What power or warrant have the courts to add to the respondent's penalties by depriving him of property? The law has punished him for his crime, and we may not say that it was an insufficient punishment. In the trial and punishment of the respondent the law has [*520] vindicated itself for the outrage which he committed, and further judicial utterance upon the subject of punishment or deprivation of rights is barred. We may not, in the language of the court in People v. Thornton (25 Hun, 456), "enhance the pains, penalties and forfeitures provided by law for the punishment [***27] of crime."
The judgment should be affirmed, with costs.
Page 7 115 N.Y. 506, *518; 22 N.E. 188, **192;
1889 N.Y. LEXIS 1231, ***24
1099C2 Time of Request: Monday, February 23, 2015 16:55:26 EST Client ID/Project Name: Number of Lines: 590 Job Number: 1826:501877482
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Send to: Hoffstadt, Brian CA COURT OF APPEAL - LOS ANGELES 300 S SPRING ST, SOUTH TOWER, 3RD FLOOR LOS ANGELES, CA 90013-1204
THE PEOPLE, Plaintiff and Respondent, v. SUSANWELLS, Defendant and Appellant.
S128640
SUPREME COURT OF CALIFORNIA
38 Cal. 4th 1078; 136 P.3d 810; 45 Cal. Rptr. 3d 8; 2006 Cal. LEXIS 7815; 2006 Cal. Daily Op. Service 5529; 2006 Daily Journal DAR 8181
June 26, 2006, Filed
SUBSEQUENT HISTORY: Time for Granting or Denying Rehearing Extended People v. Wells, 2006 Cal. LEXIS 8696 (Cal., July 12, 2006) Rehearing denied by People v. Wells, 2006 Cal. LEXIS 10977 (Cal., Sept. 13, 2006) US Supreme Court certiorari denied by Wells v. California, 167 L.Ed.2d 1096 [127 S.Ct. 2246] (U.S., May 14, 2007)
PRIOR HISTORY: Superior Court of Kern County, No. BF101553A, John L. Fielder and Stephen P. Gildner. Court of Appeal of California, Fifth Appellate District, No. F043125. People v. Wells, 122 Cal. App. 4th 155, 18 Cal. Rptr. 3d 605, 2004 Cal. App. LEXIS 1507 (Cal. App. 5th Dist., 2004)
SUMMARY:
CALIFORNIA OFFICIAL REPORTS SUMMARY
The People charged defendant with possession of heroin, driving under the influence of a controlled substance, being under the influence of a controlled substance, and possession of a device for injecting a controlled substance. Defendant had been stopped by a highway patrol officer because she was driving the same type of vehicle that an anonymous caller had described as weaving all over the roadway. Defendant filed a motion
to suppress evidence, claiming that the stop of her van was improper. The trial court found that the stop was proper, noting that the description of the vehicle was specific, and the vehicle itself (a 1980's model blue van) was distinctive. Moreover, defendant's van was traveling in the same direction and at the same location as the suspected van. Based on those factors, the trial court found that the stop was reasonable and denied defendant's motion to suppress. Subsequently, defendant pleaded no contest to possession of heroin and misdemeanor driving under the influence pursuant to a plea agreement. (Superior Court of Kern County, No. BF101553A, John L. Fielder and Stephen P. Gildner, Judges.) The Court of Appeal, Fifth Dist., No. F043125, affirmed the judgment.
The Supreme Court affirmed the judgment of the Court of Appeal. The court concluded that the officer's traffic stop of defendant was justified by reasonable suspicion of criminal activity, even though during the brief period while observing the van before stopping it, the officer saw nothing to indicate that the driver was intoxicated. The officer could reasonably believe that the blue van described by the anonymous tipster was the same vehicle he eventually stopped, as it matched the description, and was traveling in the same direction and at the same time and location as described. The tipster's information regarding the van and its location was sufficiently precise, and its report of a motorist "weaving all over the roadway" demanded an immediate stop to protect both the driver and other motorists. The tip
Page 1
reported contemporaneous activity and its innocent details were fully corroborated within minutes of the report. Although the record contained little information regarding the identity or status of the tipster, it could be reasonably inferred that the tip came from a passing motorist. (Opinion by Chin, J., with [*1079] George, C. J., Corrigan, J., and Croskey, J.,* concurring. Dissenting opinion by Werdegar, J., with Kennard, and Moreno, JJ., concurring (see p. 1089).).
* Associate Justice, Court of Appeal, Second Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
HEADNOTES
(1) Searches and Seizures § 58.2--Search Without Warrant--Traffic Stops--Reasonable Suspicion--Investigatory Detention--Totality of Circumstances.--An officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. The guiding principle in determining the propriety of an investigatory detention is the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security. In making this determination, a court examines the totality of the circumstances in each case.
(2) Searches and Seizures § 58.2--Search Without Warrant--Traffic Stops--Reasonable Suspicion--Anonymous Tip.--Reasonable suspicion is a lesser standard than probable cause and can arise from less reliable information than required for probable cause, including an anonymous tip. But to be reasonable, an officer's suspicion must be supported by some specific, articulable facts that are reasonably consistent with criminal activity. The officer's subjective suspicion must be objectively reasonable, and an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. But where a reasonable suspicion of criminal activity exists, the public rightfully expects a police officer to inquire into such circumstances in the proper exercise of the officer's duties. A citizen's tip may create a reasonable suspicion sufficient to justify a temporary vehicle stop or detention, especially if the circumstances are deemed exigent by reason of possible
reckless driving or similar threats to public safety.
(3) Searches and Seizures § 58.2--Search Without Warrant--Traffic Stops--Reasonable Suspicion--Anonymous Tip--Possibly Intoxicated Driver.--An anonymous citizen's tip of a possibly intoxicated highway driver weaving all over the roadway was sufficient to raise a reasonable suspicion to justify a traffic officer's investigatory stop and detention of the driver, even though during the brief period while [*1080] observing the vehicle before stopping it, the officer saw nothing to indicate the driver was intoxicated.
[4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Illegally Obtained Evidence, § 176.]
(4) Searches and Seizures § 58.2--Search Without Warrant--Traffic Stops--Reasonable Suspicion--Anonymous Tip--Factors.--Tips of drunken or erratic driving may indeed provide reasonable suspicion justifying a traffic stop if the following factors are present: First, the tipster must furnish sufficient identifying information regarding the vehicle and its location, so that the officer and reviewing courts may be reasonably sure the vehicle stopped is the one identified by the caller. Second, the tip should indicate the caller had actually witnessed a contemporaneous traffic violation that compels an immediate stop, rather than merely speculating or surmising unlawful activity. And third, the innocent details of the tip must be corroborated by the officers.
(5) Privacy § 3--Nature and Extent of Right--Reduced Expectation--Driving Vehicle on Public Thoroughfares.--In light of the pervasive regulation of vehicles capable of traveling on the public highways, individuals generally have a reduced expectation of privacy while driving a vehicle on public thoroughfares.
(6) Privacy § 3--Nature and Extent of Right--Reduced Expectation--Searches.--In places where one has a reduced expectation of privacy, searches may be justified on the basis of information that would be insufficient to justify a search elsewhere.
COUNSEL: Elizabeth Campbell, under appointment by the Supreme Court, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves

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