Diaz v. Superior Court CA1/3 ( 2022 )

Filed 5/9/22 Diaz v. Superior Court CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
MIGUEL DIAZ,
Petitioner, A164952
v.
(Solano County
SUPERIOR COURT FOR THE
Super. Ct. No. FCS047488)
COUNTY OF SOLANO,
Respondent;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,
Real Party in Interest.
THE COURT:*
On April 14, 2022, this Court filed several documents from Miguel
Diaz, collectively, as a petition for writ of mandate. The petition challenges
the failure of the Solano County Superior Court to file his notice of appeal
from an order finding him to be a vexatious litigant.
After initial review, we notified the parties we might choose to act by
issuing a peremptory writ in the first instance and sought opposition, if any,
* Tucher, P.J., Fujisaki, J., and Rodríguez, J.
to the petition. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d
171, 177–180.) Real party in interest responded, taking no position on the
matter.
The petition for writ of mandate establishes that Miguel Diaz timely
presented his notice of appeal from the final order and other related orders
granting the motion of the Department of Corrections and Rehabilitation to
declare him a vexatious litigant. (Code Civ. Proc., § 391, subd. (b).) The
Clerk of the Solano County Superior Court rejected the notice of appeal.
Our Supreme Court has long “recognized a ‘well-established policy
based upon the remedial character of the right of appeal, of according that
right in doubtful cases “when such can be accomplished without doing
violence to applicable rules.” ’ ” (Silverbrand v. County of Los Angeles (2009)
46 Cal. 4th 106, 113.) In the present circumstances, the doctrine of
constructive filing is applicable, and we conclude that petitioner Diaz’s notice
of appeal was timely filed.
Therefore, let a peremptory writ of mandate issue commanding
respondent, County of Solano Superior Court (Diaz v. Fox et al. (Super. Ct.
Solano County, 2022, No. FCS047488)) to file petitioner’s notice of appeal as
of the date it was originally received.
This opinion is final as to this Court immediately. (Cal. Rules of Court,
rule 8.490 (b)(2)(A).)
Diaz v. Superior Court (A164952)