Williams v. Safire CA1/5

Filed 2/28/13 Williams v. Safire CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

KEVIN B. WILLIAMS, Plaintiff and Appellant, A133759 v. ERIC M. SAFIRE et al., (San Francisco City and County Super. Ct. No. CGC-05-440797) Defendants and Respondents.

Plaintiff Kevin B. Williams (appellant) appeals from an order denying his motion for sanctions against defendants Eric M. Safire and John Houston Scott (respondents) (Code Civ. Proc., § 128.7),1 in connection with their motion to prohibit him from filing new litigation in propria persona without first obtaining leave of court. We dismiss the appeal, as we conclude the order denying appellant’s motion for sanctions is not immediately appealable. BACKGROUND This appeal arises from an action for professional negligence appellant filed against respondents in April 2005. In June 2005, the case was ordered to arbitration. There is no final judgment in the case. On May 25, 2011, respondents filed a motion in the superior court, seeking to prohibit appellant from filing new litigation in propria persona without obtaining leave of

1 All undesignated section references are to the Code of Civil Procedure.

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court, contending he is a vexatious litigant. (§§ 391, subd. (b), 391.7.) Appellant did not file an opposition to the motion; instead, on June 9, he filed a motion in propria persona seeking a separate trial on the special defense of res judicata. The same day, he sent respondents’ counsel a letter stating he would file a motion for section 128.7 sanctions against respondents and/or move to strike their vexatious litigant motion unless, within 21 days of service, respondents withdrew the motion. On June 15, 2011, acting in propria persona, appellant filed the subject motion for sanctions, contending: (1) the vexatious litigant motion was not warranted by existing law, lacked evidentiary support, and was filed to delay the proceedings; (2) respondents attached exhibits to the motion that contained confidential information regarding appellant and his family in order to harass him; and (3) respondents were forum-shopping and failed to file their motion with the judge or department assigned to the case, as required by the California Rules of Court. The superior court denied the vexatious litigant motion at a June 22 hearing. At a July 28 hearing, the superior court denied appellant’s motion for sanctions. Appellant filed a timely notice of appeal from the order denying his motion for sanctions. Thereafter, respondents filed a motion to dismiss the appeal, contending the order is not appealable. We deferred disposition on respondents’ motion to dismiss until consideration of the merits of the appeal and address it now. DISCUSSION “The existence of an appealable [order or] judgment is a jurisdictional prerequisite to an appeal.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) “[If] the judgment or order is not appealable, the appeal must be dismissed. [Citation.]” (Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302.) “There are three categories of appealable judgments or orders: (1) final judgments as determined by case law, (2) orders and interlocutory judgments made expressly appealable by statute, and (3) certain judgments and orders that, although they do not dispose of all issues in the case are considered ‘final’ for appeal purposes and are exceptions to the one-final-