Cunningham v. City and County of San Francisco CA1/3

Filed 9/30/13 Cunningham v. City and County of San Francisco 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
ARCHIBALD CUNNINGHAM,
Plaintiff and Appellant,
A138551
v.
CITY AND COUNTY OF SAN (City & County San Francisco
FRANCISCO et al., Super. Ct. No. CGC-12-527273)
Defendants and Respondents.
Having been declared a vexatious litigant under Code of Civil Procedure sections
391 et seq., 1 plaintiff Archibald Cunningham is subject to a prefiling order which
requires that he secure permission from the presiding justice before filing an appeal in
propria persona in this court. In an apparent attempt to circumvent a prior order by this
court denying permission to file an appeal from a judgment of dismissal entered on April
5, 2012, plaintiff retained counsel to file a notice of appeal from the same judgment.
When plaintiff submitted his opening brief in propria persona, however, defendants filed
motions to dismiss or, alternatively, motions for an order requiring furnishing of security
under various provisions of the vexatious litigant statutes.2 We need not rely on the
vexatious litigant statutes in dismissing this appeal, however, as our prior order finding
1
All statutory references are to the Code of Civil Procedure unless otherwise noted.
2
See sections 391.1, 391.3 and 391.7. Among other arguments, defendants assert that
section 391.3, subdivision (b), which renders an action by a vexatious litigant initially
brought by counsel subject to a bond requirement or dismissal when the attorney
withdraws, applies to appellate as well as trial court proceedings.
1
that there is no reasonable possibility that the appeal has merit establishes that plaintiff’s
appeal is frivolous. Accordingly, we shall exercise our inherent authority to dismiss the
appeal.
Background
On December 19, 2012, plaintiff filed an 82-page complaint against defendants.3
Defendants promptly moved for and obtained an order requiring plaintiff to furnish
security in the amount of $750,000 under section 391.1. On April 5, 2013, after plaintiff
failed to furnish the required security, judgment was entered dismissing the action.
On April 15, plaintiff, appearing in propria persona, filed a notice of appeal from
the judgment of dismissal. On April 22, this court rejected his filing and notified plaintiff
that as a vexatious litigant subject to a prefiling order he could not appeal without
permission.
On April 23, plaintiff applied to this court for permission to appeal the April 5
judgment. This court denied the application, determining that plaintiff had “failed to
show a reasonable possibility that his appeal has merit.”
On April 29, plaintiff, now represented by counsel, filed a notice of appeal of the
April 5 judgment. On August 9, 2013, plaintiff, again appearing in propria persona, filed
his opening brief.4 Thereafter, defendants filed motions to dismiss and alternatively, to
require plaintiff to furnish security under various provisions of the vexatious litigant
statutes.
3
Defendants are the City and County of San Francisco; the Superior Court of California,
County of San Francisco; Pat Kilkenny; T. Michael Yuen; Maria Schopp; Judge Patrick
J. Mahoney; Judge Katherine Feinstein; Judge John K. Stewart; Judge Harold Kahn; and
Mary Wang.
4
Although no substitution of counsel has been filed, plaintiff’s counsel, Patrick Missud,
was “transferred to involuntary inactive status” by the State Bar of California effective
July 4. Although Missud’s bar number appears on the opening brief, the brief is signed
only by plaintiff.
2
Discussion
California courts have the inherent power to dismiss frivolous appeals. (See
Ferguson v. Keays (1971) 4 Cal.3d 649, 658 [“we emphasize that the appellate courts
possess the further inherent power to summarily dismiss any action or appeal which has
as its object to delay, vex or harass the opposing party or the court, or is based upon
wholly sham or frivolous grounds”]; Zimmerman v. Drexel Burnham Lambert Inc. (1988)
205 Cal.App.3d 153, 161 [“Appellate courts have an inherent power to summarily
dismiss any appeal which is designed for delay or which is based on sham or frivolous
grounds.”].) While “it is a power that should not be used except in the absolutely clearest
cases,” this is such a case. (People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315,
1318.)
In finding that plaintiff failed to meet the section 391.7 prefiling requirements, this
court has already determined that the appeal has no merit and has been filed for the
purposes of harassment or delay. (§ 391.7, subd. (b).) The arguments made in the opening
brief are essentially the same as those previously asserted in plaintiff’s application for
permission to file the appeal. Appellant’s temporary retention of an attorney to prosecute
the appeal does not alter our prior determination that the appeal lacks merit. Accordingly,
we need not reach the parties’ arguments concerning the proper interpretation of the
vexatious litigant statute and instead, exercise our inherent authority to dismiss the appeal
as frivolous. 5
Disposition
The appeal is dismissed.
5
We note that the record strongly suggests that plaintiff temporarily retained counsel on
appeal for the sole purpose of circumventing the prefiling requirement. Therefore, we do
not preclude, upon proper application, hearing and consideration in the trial court, entry
of an order similar to that issued in In re Shieh (1993) 17 Cal.App.4th 1154. In Shieh, the
court subjected the plaintiff to a broader prefiling requirement that prohibited him from
filing “any new litigation in the courts of this state, whether in propria persona or through
an attorney, without first obtaining leave of the presiding judge of the court in which he
proposes to file the litigation, as provided in . . . section 391.7, subdivision (b).” (Id. at
pp. 1167-1168.)
3
_________________________
Pollak, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
4