Opinion
E051012
10-18-2011
JEHAN ZEB MIR, Plaintiff and Appellant, v. SAN ANTONIO COMMUNITY HOSPITAL, Defendant and Respondent.
Jehan Zeb Mir, in pro. per., for Plaintiff and Appellant. McDermott Will & Emery and Thomas A. Ryan and Jessica J. Thomas for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. CIVRS908494)
OPINION
APPEAL from the Superior Court of San Bernardino County. David A. Williams, Judge. Affirmed.
Jehan Zeb Mir, in pro. per., for Plaintiff and Appellant.
McDermott Will & Emery and Thomas A. Ryan and Jessica J. Thomas for Defendant and Respondent.
I. INTRODUCTION
Plaintiff Jehan Zeb Mir appeals from an order dismissing his petition for writ of mandate. He contends (1) the trial court abused its discretion in vacating his application to proceed with a writ petition on the ground he had been declared a vexatious litigant in previous litigation; (2) the trial court denied him his due process right to judicial review because administrative agencies lack judicial power; (3) a prefiling order was not required when the action was an appeal of an underlying matter in which he was a defendant, and he did not commence, institute, or maintain the underlying action; (4) the trial court erred in requiring a prefiling order; (5) the Code of Civil Procedure has no procedure for protecting the appellate rights of vexatious litigants; (6) he is entitled to a change of venue because he cannot obtain a fair trial in San Bernardino County; (7) the vexatious litigant order should be lifted because there has been a change of facts, circumstances, and law; and (8) the prefiling order must be lifted when a vexatious litigant is represented by an attorney. Defendant San Antonio Community Hospital (SACH) contends Mir's appeal is moot because he lacks an active medical license in California, and the relief he sought—reinstatement as a staff physician at SACH—is therefore not available. We find no error, and we affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
Mir was appointed to SACH's medical staff in December 1998 with provisional status. In September 2000, SACH's medical executive committee raised practice of care issues with Mir, and in October 2000, SACH sent him a notice of charges, listing three cases in which his patient care at SACH was at issue. Mir had a hearing before a judicial hearing committee of three physicians. In 2004 the hearing committee issued its decision, finding that two of the charges against Mir had been proved and terminating Mir's privileges to practice at SACH. On August 2, 2005, SACH's board of trustees upheld the appellate review board's decision to terminate Mir's staff privileges.
On July 31, 2009, shortly before the running of the four-year statute of limitations, Mir filed a petition for writ of administrative mandamus against SACH challenging the revocation of his privileges. In his petition, he sought an order directing SACH to "set aside the Decision to terminate and relinquishment of privileges and to reinstate [his] membership on [SACH's] Medical Staff and restore all privileges." He also sought to rescind a Business and Professions Code section 805 report and a report to the National Data Bank.
On November 12, 2009, the trial court issued a minute order notifying the parties that Mir was listed as a vexatious litigant and staying the writ action for 10 days, beginning on November 16, to permit Mir to obtain the necessary court permission to file an action. The order stated that the matter would be dismissed if Mir failed to file the permit by November 30.
In 2003, the Second District declared Mir a vexatious litigant. (Mir v. Pomona Valley Hosp. Med. Ctr. (Feb. 24, 2003, B148849) [nonpub. opn.] 2003 Cal.App. Unpub. Lexis 1724 at *67.) Specifically, the court ordered, under section 391.7, subdivision (a), that Mir "may not file any litigation in the courts of this state in propria persona or through an attorney without first obtaining leave of the presiding judge of the court in which the litigation is proposed to be filed. [Citation.]" (Mir v. Pomona Valley Hosp. Med. Ctr., supra, at p. *67.)
On November 20, 2009, Mir filed an application for an order to proceed with the petition for writ of administrative mandamus and a memorandum of points and authorities. He argued that his petition should not be stayed because the prefiling order did not apply to the writ action, which was, in essence, an appeal in an action initiated by SACH. SACH opposed Mir's application on the grounds that Mir had been declared a vexatious litigant, and the petition was meritless because Mir sought a remedy the court could not grant. On November 25, the trial court issued an order vacating Mir's application on the ground that Mir was a vexatious litigant, and the presiding judge was required to make a determination on the filing of the document.
Thereafter, Mir filed for a permit to file, using Judicial Council form MC-701, "Request and Order to File New Litigation by Vexatious Litigant." However, because Mir failed to obtain the permit within the time allowed under the November 12, 2009, minute order, the trial court dismissed the petition.
On January 11, 2010, Mir filed an application in this court seeking permission to appeal. On February 11, this court issued an order denying the application because there was no appealable order.
We have taken judicial notice of our records in case No. E049993.
On or about February 16, 2010, Mir filed a motion for reconsideration in the trial court, and the trial court denied the motion. On April 29, the trial court signed an order dismissing the writ action. Mir then filed an application to file notice of appeal, which this court granted. Mir filed a notice of appeal on July 22 stating he was appealing the November 25, 2009, order vacating his application and the April 29, 2010, order dismissing his writ petition.
III. DISCUSSION
A. Requests for Judicial Notice
Mir has filed requests for this court to take judicial notice of various documents from previous cases in which he was involved. SACH filed an opposition to the requests on the ground the listed documents were irrelevant to the current appeal. In addition, SACH filed a request that we take judicial notice of the unpublished appellate decision in which Mir was declared a vexatious litigant and various documents related to Mir's medical license and the rulings of the Medical Board of California, Department of Consumer Affairs. Mir filed an opposition to the request on the ground the listed documents were already part of the record on appeal or were irrelevant. We reserved ruling on the requests for consideration with the merits of the appeal.
Mir asks us to take judicial notice of documents on which he relies to support his argument that the trial court erred in finding him a vexatious litigant because circumstances have changed. However, "the proper court for an individual seeking to have a section 391.7 prefiling order erased is the very court that entered it in the first place." (Luckett v. Panos (2008) 161 Cal.App.4th 77, 96.) Neither the trial court nor this court is a proper forum to address whether a change of circumstances justifies dissolution of Mir's vexatious litigant status. We therefore deny Mir's request for judicial notice. (Ibid.; see also Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1174-1175 [denying motion to submit new evidence on appeal in challenge to vexatious litigant status].) We also deny SACH's request for judicial notice. Several of the listed documents were already included in the record on appeal, and we conclude the remaining documents are not helpful to our resolution of the issues on appeal.
B. Mootness
SACH contends Mir's appeal and the underlying writ petition are moot because the petition sought reinstatement to SACH's medical staff, and Mir lacks an active medical license in California.
Because, as a general rule, courts decide only actual controversies, appellate courts do not render opinions on questions that have become moot. (Larner v. Los Angeles Doctors Hospital Associates, LP (2008) 168 Cal.App.4th 1291, 1296.) A matter is moot when "a court ruling can have no practical effect or cannot provide the parties with effective relief." (Californians for Alternatives to Toxics v. Department of Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1069.)
In his petition for writ of mandate, however, Mir sought not only reinstatement but also rescission of a Business and Professions Code section 805 report and a report to the National Data Bank. He argues that those reports have a continuing negative effect on his career. We therefore conclude the appeal is not moot, and we will address the issues on the merits.
C. Trial Court's Exercise of Discretion
Mir contends the trial court abused its discretion by vacating his application to proceed with the writ petition on the ground he had been declared a vexatious litigant in previous litigation, and he was required to obtain approval before filing such a document. We review the trial court's order under the deferential abuse of discretion standard. (See Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 194.)
In its order of November 12, 2009, the trial court stayed the matter to give Mir time to seek a permit for filing from the presiding judge. Mir instead filed an application to proceed with the writ petition, in which application he argued that the vexatious litigant statute did not apply to him.
While Mir might argue that the application was the functional equivalent of a request for a permit to file, in that he argued the writ petition was meritorious and was not filed to harass or to cause delay, Mir did not sign the application under penalty of perjury as required in Judicial Council form MC-701. Moreover, his failure to file documents in proper form and according to proper procedures throughout this litigation has indeed led to delay and expense not only for SACH but also for the court system. We conclude the trial court did not abuse its discretion in striking a document that failed to conform to the simple procedures established by the Code of Civil Procedure and the Judicial Council form, as further discussed below in the section entitled Appellate Rights of Vexatious Litigants.
We further note that a vexatious litigant's disobedience of a prefiling order "may be punished as a contempt of court." (§ 391.7, subd. (a).)
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D. Trial Court's Supervisory Powers
Mir contends he was denied his right to judicial review because administrative agencies lack judicial power. However, it is axiomatic that for any party to proceed in an action in our courts, the party must comply with regular court procedures, and a party who proceeds in propria persona is held to the same rules of procedure as an attorney. (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.) We conclude that by failing to obtain a permit to file his action as required under section 391.7, subdivision (c), Mir has forfeited his right to judicial review.
E. Requirement of Prefiling Order
Mir contends a prefiling order was not required when the action was an appeal of an underlying administrative matter in which he was a defendant, and he did not commence, institute, or maintain the underlying action.
In Mahdavi v. Superior Court (2008) 166 Cal.App.4th 32, the court held that the appellate division of the trial court could not require a vexatious litigant to obtain leave before filing an appeal in a case in which he was the defendant. (Id. at p. 37.) Mir argues that Mahdavi is controlling in the present case. We disagree.
Under the definitions set forth in the vexatious litigant statutes: "'Litigation' means any civil action or proceeding, commenced, maintained or pending in any state or federal court." (§ 391, subd. (a), italics added.) "'Plaintiff means the person who commences, institutes or maintains a litigation or causes it to be commenced, instituted or maintained . . . ." (Id., subd. (d), italics added.) Manifestly, those definitions do not encompass a hospital administrative proceeding; thus, the litigation for purposes of the vexatious litigant statutes did not commence until Mir filed his petition for writ of mandate.
F. Appellate Rights of Vexatious Litigants
Mir contends the Code of Civil Procedure does not protect the appellate rights of vexatious litigants because there is "no particular procedure" for a vexatious litigant to apply for a prefiling order without actually filing a complaint. However, our Judicial Council has created form MC-701, entitled "Request and Order to File New Litigation by Vexatious Litigant," specifically to provide such a procedure. The form requires the litigant to attach a copy of the document to be filed, to state the reasons the filing has merit, and to state the reasons the filing is not being done to harass or cause delay. The form must be signed under penalty of perjury.
In addition, section 391.7, subdivision (c) provides: "The clerk may not file any litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant first obtains an order from the presiding judge permitting the filing. If the clerk mistakenly files the litigation without the order, any party may file with the clerk and serve on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order as set forth in subdivision (a). The filing of the notice shall automatically stay the litigation. The litigation shall be automatically dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding judge permitting the filing of the litigation as set forth in subdivision (b). If the presiding judge issues an order permitting the filing, the stay of the litigation shall remain in effect, and the defendants need not plead, until 10 days after the defendants are served with a copy of the order."
As the court noted in Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 222: "By its very nature, section 391.7's prefiling order affects a vexatious litigant's future filings. [Citation.] The remedy is directed at precluding the initiation of a meritless lawsuit and the costs associated with defending such litigation. [Citations.] Thus, section 391.7 affords protection to defendants named in pleadings not yet filed with the court." We conclude the procedures established by the statute are adequate on their face, and Mir has not shown that the procedures caused him prejudice in any way. The mere fact that he did not seek a prefiling order before filing his complaint does not mean that it would have been impossible to do so.
G. Change of Venue
Mir contends he is entitled to a change of venue because he cannot obtain a fair trial in San Bernardino County. In view of our determination that the trial court did not err in dismissing Mir's writ petition, his challenge to the venue for that action is moot.
H. Change of Circumstances
Mir contends the vexatious litigant order should be lifted because there has been a change of facts, circumstances, and law. However, a vexatious litigant order is an injunction, and "a 'request to lift the injunction represented by the prefiling order could only be considered by the court that originated the injunction.' [Citation.]" (Fink v. Shemtov, supra, 180 Cal.App.4th at pp. 1174-1175.) This court has no power to grant the relief Mir requests. (Ibid.)
I. Representation by Attorney
Mir contends the prefiling order must be lifted when a vexatious litigant is represented by an attorney. Again, Mir raises his challenge in the wrong forum. (Fink v. Shemtov, supra, 180 Cal.App.4th at pp. 1174-1175.)
IV. DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
KING
J.