Conservatorship of Boyes
Filed 5/21/13 Conservatorship of Boyes CA1/2
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opinion has not been certified for publication or ordered published for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.
MICHELE
FOTINOS,
Defendant and Appellant.
LAURIE R.
SELLS, Conservator of the Person and Estate of Esther R. Boyes,
Respondent and Real Party in
Interest.
A137647
(San Mateo
County
Super. Ct.
No. PRO121437)
This
matter is before us on a motion to dismiss the appeal as untimely. We agree that the notice of appeal was not
filed within the time allowed under California Rules of Court, rule
8.104(a)(1)(B),
title="">[1] and therefore dismiss the
appeal.
The
case involves the conservatorship of the person and estate of Esther R. Boyes
(Esther). David M. Boyes and Michele
Fotinos, both children of Esther, petitioned to be appointed Esther’s
conservator. Because the two siblings
could not agree on the appropriate care for their mother, the court appointed a
“private fiduciary,†Laurie R. Sells, as conservator instead.
On
September 27, 2012, Sells filed a motion to have a prefiling order entered
against Fotinos as a vexatious litigant under Code of Civil Procedure section
391.
required to post security under section 391.1 before filing any further
pleadings. The basis for the motion was
that Fotinos had filed seven pleadings and amended pleadings in propria persona
in five matters; in each of those matters Fotinos’s objections were overruled
and her requested relief was denied.
On
November 9, 2012, the court granted Sells’s motion in part, finding that
Fotinos was a vexatious litigant within the meaning of section 391, subdivision
(b)(3). It also granted the request that
Fotinos be subject to a requirement of obtaining a prefiling order from the
presiding judge before she would be allowed to file any “petition, application,
or motion other than a discovery motion.â€
Fotinos was not required to seek a prefiling order before filing other
“pleadings†or “objections.†She was
also not required to post security. After hearing testimony that an attorney,
one Patricia Barry, had been guiding and advising Fotinos with respect to her
pro per filings, the court made the prefiling order applicable to Barry, as
well, insofar as she might seek to file any “petition, application, or motion
other than a discovery motion, for any order on behalf of Ms. Michele Fontinos
without first obtaining leave of the presiding judge.†The court found that
Barry had been “a mere conduit for unmeritorious filings.†Indeed, it was the
inclusion of Barry as a vexatious litigant that seems to form the basis of the
present appeal.
Putting
to one side the question of Fotinos’s standing to raise such an argument, we
note that neither an order declaring a party to be a vexatious litigant, nor an
order requiring security, is directly appealable, but an appeal may be taken
from a judgment entered thereafter. (Golin
v. Allenby (2010) 190 Cal.App.4th 616, 635.) On the other hand, when an order designating
a person a vexatious litigant includes a prefiling order under section 391.7,
although not expressly made appealable by section 904.1 or any other statute,
the order requiring the litigant to obtain a prefiling order arguably is
immediately reviewable under
section 904.1, subdivision (a)(6), as an injunction. (Luckett
v. Panos (2008) 161 Cal.App.4th 77, 90.)
For purposes of this motion, we will assume the order in the case before
us is appealable.
The
question presented by this motion is what was the date on which the appeal
period started to run? Sells claims it
was November 15, 2012, when she served on Fotinos notice of entry of the trial
court’s order dated November 9. Under
that theory the last day for Fotinos to file an appeal would have been January
14, 2013. (Rule 8.104(a)(1)(B).) Since the notice of appeal was not filed
until January 16, Sells claims the notice of appeal was untimely and the case
should be dismissed.
Fotinos,
on the other hand, claims the notice of
appeal was timely because, in addition to the detailed written order filed
November 9, 2012, the court on November 15, 2012, signed a prefiling order on
Judicial Council form MC-700, which was filed on November 16. Like the court’s order on November 9, 2012,
the standardized form named Barry, too, as a vexatious litigant with respect to
her filings on behalf of Fotinos. The
form order prohibits the vexatious litigant from filing “any new litigation in
propria persona in the courts of California without approval of the presiding
judge of the court in which the action is to be filed.†The standardized form also instructs the
clerk of the court to forward a copy of the MC-700 form to the Judicial
Council.
Even
if the 60-day appeal period began to run on November 16, however, it would have
expired on January 15, 2013, and the appeal still would not be timely. However, Fotinos argues that, because neither
the court clerk nor Sells served the MC-700 on her, the 60-day appeal period
never started to run and had not expired by the time the notice of appeal was
filed on January 16, 2013. Without
citing that provision, Fotinos seems to take the position that she was entitled
to a 180-day appeal period under rule 8.104(a)(1)(C).
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. (§ 391.7, subd. (f).) We do not view this as an order appealable
independently of the November 9 order.
We see no reason why Fotinos should be given a second opportunity or a
longer period to appeal when the issue had been determined on November 9, and
she was fully informed of it by service of the order on November 15. We deem the appeal period to have begun on
November 15, 2012, when Sells served the November 9 order on Fotinos.
We
reject Fotinos’s argument that some claimed deficiency in the notice of entry
of order precludes it from having the effect of triggering the start of the
appeal period. A copy of the court’s
written order was attached to the notice of entry of order and thus clarified
any misunderstanding as to the scope of the court’s order. Rule 8.104(b) requires us to dismiss the
appeal.
While
Fotinos urges us to liberally construe the notice of appeal (see rule
8.100(a)(2)), no amount of construction makes this appeal timely. And while she argues that the court’s order
is void and of no effect―and therefore subject to collateral attack at
any time―she is not entitled to a direct appeal in violation of rule
8.104.
The
appeal is ordered dismissed.
_________________________
Richman,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Lambden, J.
Reference to rules without further designation is to the California Rules of
Court.
Undesignated statutory references are to the Code of Civil Procedure.
