Hicks v. Kulka CA6

Filed 7/28/16 Hicks v. Kulka CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

MICHAEL HICKS, H038566 (Monterey County Plaintiff and Appellant, Super. Ct. No. M119425)

v.

WILLIAM KULKA,

Defendant and Respondent.

Appellant Michael Hicks, an incarcerated vexatious litigant, sought to file a medical malpractice complaint against respondent William Kulka, M.D, a physician who treated him in prison. As a vexatious litigant, appellant was required to seek permission from the presiding judge of the trial court before filing his complaint. (Code Civ. Proc., § 391.7.)1 The trial court denied his request. Appellant appeals, contending that the court abused its discretion in denying the request. We dismiss the appeal as taken from a nonappealable order. FACTUAL AND PROCEDURAL BACKGROUND While serving a life sentence in state prison, appellant was declared a vexatious litigant pursuant to California’s vexatious litigant statutory scheme. (§§ 391 et seq.)

1 All further statutory references are to the Code of Civil Procedure unless otherwise noted.

Because of that designation and a prefiling order, appellant was required to obtain permission from the presiding judge prior to filing any new litigation. (§ 391.7.) On May 16, 2012, appellant filed a request to file new litigation by a vexatious litigant in Monterey County Superior Court, requesting to file a summons and complaint for medical malpractice against respondent, a physician who had treated him in prison. The complaint alleged that respondent failed to properly diagnose and treat him. On May 16, 2012, the presiding judge denied his request. This court granted appellant permission to file an appeal in this court from the May 16, 2012 order. Subsequently, we issued an order to show cause (OSC) as to why the appeal should not be dismissed as taken from a nonappealable order. We then deferred the OSC for consideration with the appeal, in order to allow the respondent to file a brief. DISCUSSION The Vexatious Litigant Scheme Under the vexatious litigant statutory scheme (§§ 391-391.7), upon the proper proof, self-represented litigants can be deemed vexatious and subjected to a variety of restrictions set out by the statutes, including the requirement to post a bond (§§ 391.1- 391.4), or to obtain permission before filing new litigation. (§ 391.7.) Section 391.7, subdivision (a), authorizes a trial or appellate court to enter, “on its own motion or the motion of any party,” a prefiling order that prohibits a self-represented vexatious litigant from “ ‘filing any new litigation in the courts of this state . . . without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed.’ (§ 391.7, subd. (a), as amended by Stats. 2011, ch. 49, § 1.).” (John v. Superior Court (2016) 63 Cal.4th 91, 98.) “It is settled that section 391.7’s prefiling process applies to self-represented plaintiffs who have been declared vexatious litigants. [Citation.]” (Ibid.) Pursuant to this section, a litigant can be “ ‘barred from filing the action or proceeding if success is considered improbable. . . . [¶] Section 391.7’s extra 2