Vexing Procedural Pointers

In Ogunsalu v. Superior Court, (May 31, 2017 D071323) 4/1 packs several procedural points into a short opinion which may be useful in other circumstances.  The case concerned whether or not the vexatious litigant prefiling requirements apply to a self-represented litigant who filed a petition for writ of mandate in the superior court, challenging the denial of his request to continue an administrative proceeding.  The short answer is “yes,” but the opinion contains helpful hints for other cases.

First, the Court noted the question was technically moot because the hearing had concluded.  However, it continued on because “a reviewing court may exercise its inherent discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of continuing public interest and is a question capable of repetition, yet evading review.”  Having argued this on occasion, I find it generally unpersuasive, given the overburdened appellate courts, but have succeeded a few times.  The key is whether the issue piques the Court’s interest.

And sometimes you get a bit more of a reason to issue an opinion on a moot claim, leading to the second point.  The Court originally had denied the petition, prompting Ogunsalu to petition the Supreme Court for review, which granted review but transferred the matter back to the Court of Appeal in light of a new decision.  So, here, the Supreme Court had weighed in, prompting a decision on the merits.  This is important for other cases because, if the Court of Appeal summarily denies your writ petition, that is not necessarily the end of the road; if the issue merits it, the Supreme Court can — and does — transfer the matter back to the Court of Appeal for a full opinion on the merits.

However, a decision on the merits, even after Supreme Court transfer, does not equate with victory.  Here, the Court of Appeal, while “sympathetic” to the petitioner and noting perhaps a legislative fix is in order, concluded CCP 391.7’s reference to “litigation” required a court proceeding, not an administrative proceeding, so the writ petition was indeed new litigation (as opposed to an appeal in an existing case in which the vexatious litigant is a defendant), triggering the prefiling rules for vexatious litigants, an interesting first impression issue.  While it may sound trite, one key to maneuvering the maze of procedure to obtaining a ruling on the merits of a writ petition remains catching the Court’s attention with an interesting issue, but prompting from the Supreme Court does not help either.