Conservatorship of Boyes CA1/2

Filed 4/8/14 Conservatorship of Boyes CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

Conservatorship of the Person and Estate of ESTHER R. BOYES.

DAVID M. BOYES, Plaintiff and Respondent, v. A139165 MICHELE FOTINOS, Defendant and Appellant, (San Mateo County Super. Court No. PRO121437)

LAURIE R. SELLS, Conservator of the Person and Estate of Esther R. Boyes, Real Party In Interest and Respondent.

The Code of Civil Procedure provides that prior to “filing any new litigation in the courts of this state,” a person who has been declared a vexatious litigant must obtain the permission of the “presiding judge of the court where the litigation is proposed to be filed.” (Code Civ. Proc., § 391.7, subd. (a).) The Code further provides that a vexatious litigant “subject to a prefiling order . . . may file an application to vacate the prefiling order” “upon a showing of a material change in the facts upon which the [prefiling] order was granted and that the ends of justice would be served by vacating the order.” (Id., § 391.8, subds. (a), (c).)

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The tactics of Michele Fotinos in contesting virtually every action taken by her mother’s conservator led the conservator to move to have Fotinos (and her then attorney, Patricia Barry) declared a vexatious litigant and made subject to the prefiling requirement. On November 9, 2012, the motion was heard and granted by Judge Jonathan E. Karesh against Fotinos and her attorney. That same day an order signed by Judge Karesh was filed. Judge Karesh denied the conservator’s motion to require Fotinos to post security, and did not grant the prefiling motion as requested: Fotinos was only barred from “from filing any petition, application, or motion other than a discovery motion,” but not “pleadings and objections.” One week later, on November 16, a Judicial Council form MC-700 for “Prefiling Order—Vexatious Litigant” was filed. This order was signed by Judge Beth Labson Freeman as “Presiding Judge.” Fotinos filed a notice of appeal, designating only the November 16 order. We held that the notice was untimely as to both orders, and dismissed the purported appeal. We explained the relationship of the two orders: “The court’s order of November 9 was the one which imposed a prefiling order requirement on Fotinos. The additional step of filing a form MC–700 appears to have fulfilled one primary purpose: those forms are to be forwarded to the Judicial Council so that the vexatious litigant’s name may be added to a statewide list of those subject to a prefiling order requirement. [Citation.] We do not view this as an order appealable independently of the November 9 order.” (Conservatorship of Boyes (May 21, 2013, A137647) [nonpub. opn.] [2013 WL 2319457