Kleidman v. California Court of Appeal Second Appellate District CA4/1 ( 2023 )

Filed 6/23/23 Kleidman v. California Court of Appeal Second Appellate District CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
PETER KLEIDMAN, D079855, D079856, D079933
Plaintiff and Appellant,
v. (Super. Ct. No. 19SMCV01039)
CALIFORNIA COURT OF APPEAL
SECOND APPELLATE DISTRICT
et al.,
Defendants and Respondents.
CONSOLIDATED APPEALS from orders and a judgment of the
Superior Court of Los Angeles County, Elaine W. Mandel, Judge. Affirmed in
part, reversed in part, and modified.
Peter Kleidman, in pro. per., for Plaintiff and Appellant.
Lowthorp Richards and Kevin M. McCormick for Defendants and
Respondents.
This case arises from a prior action in which Peter Kleidman filed two
appeals in the California Court of Appeal, Second Appellate District (Second
District). The Administrative Presiding Justice (APJ) of the Second District
dismissed the first appeal as untimely, and Kleidman lost the second appeal
on the merits. He unsuccessfully sought review by the California Supreme
Court (Supreme Court) in both appeals.
Dissatisfied with these results, Kleidman then filed this action against
the Supreme Court, the Second District, “Division P” of the Second District,
the APJ of the Second District (Hon. Elwood P. Lui), and the Judicial Council
of California (Judicial Council) (collectively referred to as the Judicial Branch
Defendants), as well as the California Legislature and one of the parties to
the prior lawsuit. As narrowed over time, his primary complaint against the
Judicial Branch Defendants is that his first appeal in the prior action should
not have been dismissed as untimely by the APJ acting alone because
Article VI, section 3 of the California Constitution required the concurrence
of two justices.
On April 24, 2020, the trial court sustained a demurrer to Kleidman’s
complaint and entered a written order of dismissal in favor of all the Judicial
Branch Defendants, including the Second District. On August 24, 2020, the
trial court sustained a second demurrer brought by the Second District on
behalf of its own “Division P” and entered another order of dismissal in favor
of the Second District. On March 3, 2021, the trial court entered a judgment
on both demurrers in favor of the Judicial Branch Defendants. In this
consolidated appeal, Kleidman appeals from both demurrer orders and the
judgment.
Kleidman argues on appeal that: (1) the trial court lacked jurisdiction
to rule on the Judicial Branch Defendants’ first demurrer to his first through
sixth causes of action because he voluntarily dismissed those causes of action
about a week before the demurrer hearing; (2) the court erred in ruling that
his seventh through ninth causes of action were barred as a matter of law;
and (3) the court lacked authority to enter the March 3, 2021 judgment for
2
the Judicial Branch Defendants as a result of its issuance of the April 24,
2020 and August 24, 2020 orders, which he claims also constituted judgments
within the meaning of Code of Civil Procedure section 581d.1
We agree with Kleidman that the trial court lacked jurisdiction to rule
on the first demurrer as to the first five causes of action asserted against the
Judicial Branch Defendants. As was his right, Kleidman voluntarily
dismissed these claims without prejudice before any tentative or final ruling
on the demurrer. Accordingly, we reverse these discrete portions of the
April 24, 2020 dismissal order, but otherwise affirm the order. In doing so,
we conclude as a matter of law that: (1) the APJ acting alone had authority to
dismiss Kleidman’s first appeal in the prior action as untimely; (2) the
Second District and the APJ are entitled to judicial immunity; and
(3) Kleidman’s complaint failed to state a claim against the Judicial Council.
We also conclude that the April 24, 2020 dismissal order was a
“judgment” for purposes of section 581d. Because that order and judgment
resulted in a dismissal of the claims against the Second District (including so-
called “Division P”) and terminated the litigation between the parties on the
merits, we further conclude that the trial court was without jurisdiction to
issue the August 24, 2020 dismissal order based on the second demurrer of
the Second District and the March 3, 2021 judgment that incorporated both
orders. We therefore reverse the August 24, 2020 order and the March 3,
2021 judgment. Our disposition completely resolves the litigation and
requires no further proceedings on remand.
1 Unless otherwise indicated, all further statutory references are to the
Code of Civil Procedure.
3
FACTUAL AND PROCEDURAL BACKGROUND
We derive our facts from those properly pled in Kleidman’s complaint.
(See Moore v. Conliffe (1994) 7 Cal.4th 634, 638 [the “familiar rules” require
that we “treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions, or conclusions of fact or law”]; Southern
California Gas Leak Cases (2019) 7 Cal.5th 391, 395 [same].) We also may
consider matters that have been judicially noticed and exhibits attached to a
complaint.2 (Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th
201, 210.)
A. Chase Judgment and Appeal
In November 2013, Kleidman filed a complaint against JPMorgan
Chase Bank, N. A. (Chase) and RFF Family Partnership, L.P. (RFF), among
other defendants, claiming they had overcharged him interest, fees, and late
charges on numerous loans. (Kleidman v. RFF Family Partnership L.P.,
et al. (Los Angeles County Super. Ct., case No. SC121303 (the Underlying
Litigation).) In December 2014, Chase, for itself only, demurred to the
complaint. Kleidman opposed the demurrer, making arguments only with
respect to Chase’s demurrer. On June 13, 2014, the trial court sustained
Chase’s demurrer without leave to amend. That same day, the court issued
(1) an “Order Sustaining [Chase’s] Demurrer to Plaintiff’s First Amended
Complaint without Leave to Amend”; and (2) a “Judgment of Dismissal of
Plaintiff’s First Amended Complaint” (the Chase Judgment). On June 18,
2014, Chase served Kleidman with a “Notice of Entry of Judgment or Order.”
2 Kleidman’s request for judicial notice filed in D079855 is granted. His
request for judicial notice in D079856 is denied because all of the items listed
are now part of the record or briefing before us as a result of our consolidation
of the appeals.
4
On December 10, 2014, Kleidman filed a notice of appeal from the
Chase Judgment. Later that month, the Second District directed Kleidman
to show cause why his appeal from the Chase Judgment should not be
dismissed based on his purported late-filed notice of appeal. Kleidman
responded to the order to show cause in early January 2015, and Chase filed
a reply.
Key to the instant litigation, on February 25, 2015, before Kleidman’s
appeal from the Chase Judgment was assigned to one of the Second District’s
eight divisions, the APJ of the Second District issued an order dismissing the
appeal as untimely. (Kleidman v. RFF Family Partnership, L.P., et al., case
No. B260735 (the Chase Appeal).) That order explained that the deadline to
file a notice of appeal from the Chase Judgment was August 18, 2014, or 60
days after service on June 18, 2014 of the Notice of Entry of Judgment or
Order; Kleidman’s December 10 notice of appeal was filed “120 days after the
deadline” to appeal the Chase Judgment, and thus was untimely; and as a
result, the Court of Appeal lacked jurisdiction to hear the appeal from the
Chase Judgment. The case caption on the June 16, 2015 remittitur identified
the issuing court as the Second District, Division P.
Kleidman filed a motion to vacate the dismissal and reinstate his
appeal. The Second District denied the motion. Kleidman also filed a
petition for review in the Supreme Court, which the Supreme Court denied in
May 2015. (Kleidman v. RFF Family Partnership, L.P., et al., case
No. S225536.) One year later, in May 2016, Kleidman filed a motion to recall
the remittitur, followed by a petition for rehearing and another petition for
review, all of which were denied.
5
B. RFF Judgment and Appeal
Meanwhile, the Underlying Litigation involving RFF continued. At a
hearing in February 2014, the trial court set the matter for trial on April 20,
2015. Kleidman was served with notice of the trial date. On April 13, 2015,
RFF filed and served Kleidman with its witness and exhibit lists, which
included the time, date, and location of the April 20 trial. Kleidman,
however, did not appear for trial and, as a result, judgment was entered for
RFF (the RFF Judgment).
In early June 2015, RFF filed a motion seeking an award of attorney
fees and costs based on a contractual fee provision in a loan agreement
between it and Kleidman. Kleidman opposed RFF’s motion, contending that
it was untimely based on the date of entry of the Chase Judgment. The trial
court granted the motion and awarded RFF $41,200 in attorney fees.
Kleidman moved to set aside the RFF Judgment and for a new trial,
contending that such relief was necessary because of his mistaken belief that
the entire action had been dismissed by the Chase Judgment. The trial court
denied Kleidman’s request, reasoning that, had he exercised “ ‘ordinary
prudence,’ ” he would not have been “ ‘surprise[d]’ ” by the scheduled trial.
Kleidman timely appealed the RFF Judgment and the postjudgment orders.
In July 2018, Division Four of the Second District issued an opinion
affirming the RFF Judgment, including the fee award. (Kleidman v. RFF
Family Partnership L.P., case No. B268541 (the RFF Appeal).) In so doing,
the Court of Appeal found that the Chase Judgment was separate and
distinct from the RFF Judgment; that the trial court properly exercised its
discretion in refusing to vacate the RFF Judgment based on “surprise”; and
that RFF, as the prevailing party, was entitled to an award of attorney fees
under Civil Code section 1717. The Court of Appeal also briefly addressed
6
the Chase Appeal, rejecting Kleidman’s request to vacate the February 25,
2015 dismissal order and reinstate his appeal from the Chase Judgment.
Kleidman sought review in the Supreme Court of the Second District’s
decision affirming the RFF Judgment and post-judgment orders. (Kleidman
v. RFF Family Partnership, case No. S250726.) The Supreme Court denied
review in September 2018.
C. The Complaint
Kleidman filed his complaint in this action in June 2019. He alleged
eight claims for declaratory relief and one for writ of mandate. With regard
to the Judicial Branch Defendants, he named the Supreme Court in the first,
second, third, and fourth causes of action for declaratory relief; he named the
Judicial Council in the fourth and eighth causes of action for declaratory
relief; he named the Second District in the fifth and seventh causes of action
for declaratory relief; and he named the Second District’s Division P and APJ
in the seventh and eighth causes of action for declaratory relief and ninth
cause of action for writ of mandate. No Judicial Branch Defendants were
named in the sixth cause of action.
The complaint alleged that “Division P (a.k.a. Pre-docket Division) of
the Court of Appeal for the Second Appellate District . . . is a group within
the [Second District] which manages and controls appeals filed from
Los Angeles County before they are assigned to one of [the Second District’s]
eight divisions. Division P consists of a single justice, viz, the Administrative
Presiding Just[ice] (ex officio) or a designee, and around three, or so, clerks of
[the Second District].”
As relevant here, in his prayer for relief, Kleidman requested a judicial
declaration that the decisions of the Second District in the Chase and RFF
Appeals were void, and that rule 10.1004(c)(2) of the California Rules of
7
Court3 is void under Article VI, section 3 of the California Constitution and
Government Code section 69102 because “any and all judicial power over
appeals in [the Second District] is held only by [its] eight divisions.”
Kleidman also sought a peremptory writ of mandate in connection with the
Chase Appeal “commanding Division P and Administrative Presiding Justice
Lui (immediately after receipt of the writ) to recall the 6/16/15 Remittitur
and assign the appeal to one of [the Second District’s] eight divisions.”
D. First Demurrer
In late September 2019, the Judicial Branch Defendants demurred to
all causes of action asserted against them in Kleidman’s complaint,
contending that (1) they failed to state facts sufficient to state a cause of
action; (2) they were barred by claim preclusion; (3) they were barred by
absolute judicial immunity; (4) they were barred by the litigation privilege
(Civ. Code, § 47, subd. (b)) and governmental immunity (Gov. Code, § 821.6);
and (5) the court lacked jurisdiction over the claim for writ of mandate.
Kleidman filed his opposition to the demurrer in late November 2019,
and the Judicial Branch Defendants replied on December 4, 2019. In his
opposition, Kleidman argued that: (1) involuntary dismissals of appeals
require the concurrence of two justices; (2) the Second District may exercise
judicial power only through its eight divisions and Division P is an “illegal
tribunal”; (3) he was denied the right to oral argument in the Chase Appeal;
(4) the dismissal order and remittitur in the Chase Appeal were invalid; and
(5) the Judicial Branch Defendants’ arguments had no merit.
On December 5, 2019, before the demurrer hearing and before the trial
court issued any tentative or final ruling on the demurrer, Kleidman
dismissed without prejudice: (i) the Supreme Court from the action; (ii) his
3 All further references to rules are to the California Rules of Court.
8
fourth and sixth causes of action in their entirety, and (iii) his fifth cause of
action against the Second District only.4 As a result, there were no Judicial
Branch Defendants remaining in the first six causes of action; all of
Kleidman’s claims relating to the RFF Appeal were abandoned; and his only
remaining claims in the seventh through ninth causes of action related to the
APJ’s dismissal of the Chase Appeal as untimely.
At the demurrer hearing, Kleidman argued that the trial court lacked
authority to rule on the demurrer to the first six causes of action based on his
voluntary dismissal of those claims against the Judicial Branch Defendants.
Despite Kleidman’s voluntary dismissal, the trial court on
December 11, 2019 sustained the demurrer of the Judicial Branch
Defendants without leave to amend as to all causes of action originally
asserted against them, including those asserted against the Supreme Court
before the voluntary dismissal. On April 24, 2020, the court signed and
entered a dismissal order on the grounds of judicial immunity and lack of
authority to reverse the previous orders of the Second District and the
Supreme Court.5 The signed order dismissed the complaint with prejudice as
to all the Judicial Branch Defendants, including the Supreme Court and the
Second District.
4 Kleidman’s December 5 request also dismissed the California
Legislature from the complaint without prejudice. Five days later, Kleidman
separately dismissed RFF from the complaint, also without prejudice. Other
than the Judicial Branch Defendants, no other defendants were named in the
complaint.
5 Kleidman appealed the April 24, 2020 order, which is the subject of
D079855.
9
E. Second Demurrer
In February 2020, while the first demurrer was still pending, the
Second District filed a second demurrer on behalf of Division P. In support, it
argued that the complaint failed as a matter of law because Division P was
not a separate judicial branch within the Second District and not subject to
suit separately from the Second District, and was merely an “internal
component or division” of the Second District whose demurrer was sustained
without leave to amend in December 2019. The Second District also
advanced several other arguments previously made by the Judicial Branch
Defendants in their first demurrer.
At an unreported hearing, the trial court sustained the Second
District’s second demurrer without leave to amend on the same grounds as
the first demurrer—judicial immunity and lack of authority to reverse the
previous orders of a higher court. The court signed and filed another order on
August 24, 2020 sustaining the second demurrer and again dismissing the
Second District from the case with prejudice.6
On March 3, 2021, the trial court entered a separate judgment on the
two demurrers in favor of the Judicial Branch Defendants.7 We have
consolidated Kleidman’s three appeals from the orders of April 24, 2020 and
August 24, 2020 and the judgment of March 3, 2021.
6 Kleidman appealed the August 24, 2020 dismissal order, which is the
subject of D079856.
7 Kleidman appealed the March 3, 2021 judgment, which is the subject of
D079933.
10
DISCUSSION
A. Standard of Review
“In reviewing [a judgment or a final] order sustaining a demurrer . . .
we examine the operative complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory.” (T.H. v.
Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162). Where the
demurrer was sustained without leave to amend, we consider whether the
plaintiff could cure the defect by an amendment. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) In the instant case, Kleidman has not requested leave to
amend his complaint.
B. The Trial Court Erred in Sustaining the Judicial Branch
Defendants’ Demurrer to the First Through Fifth Causes of Action
Kleidman contends that the trial court lacked jurisdiction to sustain
the Judicial Branch Defendants’ demurrer to the first through sixth causes of
action in his Complaint because he voluntarily dismissed those claims on
December 5, 2019, six days before the demurrer hearing. We conclude that
his argument has merit as to the first through fifth causes of action asserted
against the Judicial Branch Defendants.8
Generally, under section 581, a plaintiff may voluntarily dismiss a
complaint, or any cause of action asserted in it, with or without prejudice as
to any defendant at any time before the “actual commencement of
trial.” (§ 581, subds. (b)(1), (c); Panakosta, Partners, LP v. Hammer Lane
Management, LLC (2011) 199 Cal.App.4th 612, 632 [“Under . . . section 581, a
plaintiff generally has an unfettered right to dismiss a cause of action before
commencement of trial.”].) Dismissal “ ‘is available to [a] plaintiff as a matter
8 The Judicial Branch Defendants did not address this argument in their
respondents’ briefs.
11
of right’ ” and, if in the proper form, “ ‘the dismissal is effective
immediately.’ ” (S. B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 380.)
However, a plaintiff’s right to dismiss an action, or a cause of action in
a complaint, is not absolute even if the dismissal is before “commencement of
trial.”9 Thus, an action may not be voluntarily dismissed “ ‘where the action
has proceeded to a determinative adjudication, or to a decision that is
tantamount to an adjudication.’ ” (Bank of America, N.A. v. Mitchell (2012)
204 Cal.App.4th 1199, 1209; accord, Franklin Capital Corp. v. Wilson (2007)
148 Cal.App.4th 187, 200 (Franklin Capital) [“When the dismissal could be
said to have been taken [¶] . . . in the light of a public and formal indication
by the trial court of the legal merits of the case, or [¶] . . . in the light of some
procedural dereliction by the dismissing plaintiff that made dismissal
otherwise inevitable, then the voluntary dismissal is ineffective”].)
Here, we conclude that Kleidman’s voluntary dismissal of the first
through fourth causes of action against the Supreme Court, the fourth cause
of action against the Judicial Council, and the fifth cause of action against
the Second District, about a week before the demurrer hearing, was effective
and not the result of some “formal indication” by the trial court of the merits
of the Judicial Branch Defendants’ pending demurrer (i.e., a tentative order),
or of some procedural problem specific to those claims that made their
dismissal “inevitable.” (See Franklin Capital, supra, 148 Cal.App.4th at
p. 200.)
9 Section 581 defines “commencement of trial” as “the beginning of the
opening statement or argument of any party or his or her counsel, or if there
is no opening statement, then at the time of the administering of the oath or
affirmation to the first witness, or the introduction of any evidence.” (§ 581,
subd. (a)(6).)
12
Accordingly, under the plain language of section 581 (Sierra Club v.
Superior Court (2013) 57 Cal.4th 157, 165−166 (Sierra Club)), we conclude
that the trial court was without jurisdiction to rule on the demurrer with
respect to these dismissed causes of action and its order sustaining them is
therefore void. (See Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d
781, 784 [concluding a “plaintiff’s right to a voluntary dismissal pursuant to
subdivision 1 [of former section 581] appears to be absolute” and “[u]pon the
proper exercise of that right, a trial court would thereafter lack jurisdiction to
enter further orders in the dismissed action”]; Paniagua v. Orange County
Fire Authority (2007) 149 Cal.App.4th 83, 89 [“ ‘[i]t is a well-settled
proposition of law that where the plaintiff has filed a voluntary dismissal of
an action . . ., the court is without jurisdiction to act further, and any
subsequent orders of the court are simply void’ ”]; Sanabria v. Embrey (2001)
92 Cal.App.4th 422, 425 [an entry of dismissal pursuant to section 581
“terminates the action against the dismissed defendants,” allowing the action
then to “proceed[] as to other parties”]; Aetna Casualty & Surety Co. v.
Humboldt Loaders, Inc. (1988) 202 Cal.App.3d 921, 931 [“dismissal of an
action by a plaintiff under section 581 . . . is available to plaintiff as a matter
of right” and “[f]ollowing entry of such dismissal, the trial court is without
jurisdiction to act further in the action . . . except for the limited purpose of
awarding costs and statutory attorney’s fees”]; Cubalevic v. Superior Court
for Los Angeles County (1966) 240 Cal.App.2d 557, 562 [trial court acted in
excess of its jurisdiction when it made an order determining the fair cash
value of petitioner’s shares because the involuntary dissolution action had
been dismissed prior to issuance of that order].)
13
We thus reverse the April 24, 2020 dismissal order as to the first five
causes of action asserted against the Judicial Branch Defendants.10 To avoid
an unnecessary remand for further proceedings, we will exercise our
authority to modify the order ourselves to reflect no ruling on these claims,
because they were no longer properly before the trial court. (§ 43; Rule
8.264(c)(1).) Our disposition as to these claims does not require any further
proceedings on remand, however, because it does not alter the fact that
Kleidman voluntarily dismissed them without prejudice before the demurrer
ruling.
C. The Trial Court Properly Sustained the Demurrer of the Judicial
Branch Defendants to the Seventh Through Ninth Causes of Action
As a result of Kleidman’s December 5, 2019 dismissal, only three
causes of action against the Judicial Branch Defendants remained in the
complaint: his seventh and ninth causes of action against the Second District
and Justice Lui; and his eighth cause of action against the Second District,
Justice Lui, and the Judicial Council. Each of these causes of action was
premised on Kleidman’s theory that the Second District’s APJ lacked the
authority to decide on his own whether Kleidman’s notice of appeal from the
Chase Judgment was timely. He argues that article VI, section 3 of the
California Constitution and Government Code section 69102 required a
three-justice panel of one of the Second District’s eight divisions to make that
10 We reject Kleidman’s argument for reversal as to the sixth cause of
action because none of the Judicial Branch Defendants were named in the
sixth cause of action. Thus, the Judicial Branch Defendants could not have
demurred to this cause of action (and did not purport to do so) and the trial
court did not rule on it.
14
determination.11 Accordingly, Kleidman contends that the APJ’s dismissal
of his appeal from the Chase Judgment was null and void, and he should now
be allowed to pursue the appeal on the merits.
1. The Second District’s APJ Acting Alone Had the Authority to
Determine the Timeliness of Kleidman’s Notice of Appeal from the Chase
Judgment
Article VI, section 3 of the California Constitution provides in relevant
part: “Concurrence of 2 judges present at the argument is necessary for a
judgment.” (Italics added.) An almost identical provision, section 2 of Article
VI, applies to the Supreme Court and provides in part: “[c]oncurrence of 4
judges present at the argument is necessary for a judgment.” (Italics added.)
The Supreme Court has concluded that sections 2 and 3 of Article VI
“may be read as requiring the concurrence of at least two Court of Appeal
justices or four Supreme Court justices ‘present at the argument’ in those
circumstances when the court does hear oral argument, in order to preclude
the participation of justices who did not listen to the argument.” (Lewis v.
Superior Court (1999) 19 Cal.4th 1232, 1256, italics added (Lewis).) The
right to oral argument generally applies only to an appeal or original
proceeding that “ ‘is considered on the merits and decided by a written
opinion . . . .’ ” (Moles v. Regents of University of California (1982) 32 Cal.3d
867, 871, italics added.)
There is no right to oral argument on the dismissal of an untimely
appeal for lack of appellate jurisdiction. The dismissal of an appeal for lack
of appellate jurisdiction “not only is not on the merits, it is unreflective of the
11 Kleidman pled this theory in his complaint and argued it on the merits
in his opposition to the first demurrer and as part of his argument on judicial
immunity in his opening and reply briefs on appeal in D079855.
15
merits . . . .” (Lackner v. LaCroix (1979) 25 Cal.3d 747, 750.) More
specifically, the question whether a notice of appeal has been timely filed has
nothing to do with the merits of the appeal. And because there is no right to
oral argument on such a dismissal for lack of appellate jurisdiction, the
provision of Article VI, section 3 of the California Constitution requiring the
concurrence of two justices “present at the argument” does not apply. (See
Lewis, supra, 19 Cal.4th at p. 1256.)
In re R.H. (2009) 170 Cal.App.4th 678 (R.H.) provides guidance on this
issue. There, a vexatious litigant argued that applying the vexatious litigant
statute to an appeal violated Article VI, section 3 of the California
Constitution because it meant that the presiding justice acting alone would
decide whether the appeal could be pursued and would pass on the merits of
the appeal without an opinion. (R.H., at p. 701.) The R.H. court disagreed,
finding the premise of the appellant’s argument “flawed” because under the
applicable law’s “own terms, the presiding justice in determining whether to
permit the appeal to proceed does not pass on its merits. The presiding
justice merely determines if there is an issue to review on appeal.” (Ibid.)
Here, the APJ in the Underlying Litigation merely assessed whether
Kleidman’s notice of appeal from the Chase Judgment was timely under the
60-day rule set forth in rule 8.104(a)(1)(B).12 This jurisdictional ruling was
even farther removed from the merits of the appeal than the presiding
justice’s decision whether to allow the vexatious litigant to pursue his appeal
12 Under rule 8.104(a)(1)(B), an appeal must be filed on or before the
earliest of “60 days after the party filing the notice of appeal serves or is
served by a party with a document entitled ‘Notice of Entry’ of judgment or a
filed-endorsed copy of the judgment . . . .”
16
in R.H. Accordingly, we conclude that Kleidman’s complaint failed to state a
claim for a violation of Article VI, section 3 of the California Constitution.
Kleidman’s complaint also failed to allege any violation of Government
Code section 69102. This statute provides in relevant part: “The Court of
Appeal for the Second Appellate District consists of eight divisions having
four judges each.” (Gov. Code, § 69102.) Kleidman’s complaint acknowledges
that the Second District does have “eight divisions.” As stated in its internal
operating practices and procedures, the Second District has eight divisions
with four judges each.13 (See Internal Operating Practices and Procedures,
Second Appellate District, Organization of the District [“The Second District
covers four counties and consists of eight divisions” and “[e]ach division
consists of three Associate Justices and a Presiding Justice”].) Despite its
misleading label, Division P is not a separate division; it is merely an
administrative designation the Second District uses for motions that are filed
and decided before an appeal is assigned to one of its eight divisions. (See id.
at Motions [“Motions filed before a case is assigned to a division are
designated ‘Division P’ motions and are ruled upon by the Administrative
Presiding Justice”].) The Second District’s use of such an administrative
designation for pre-assignment matters ruled on by the APJ does not violate
Government Code section 69102.
Because Kleidman’s seventh, eighth, and ninth causes of action were
each based on the faulty premise that the APJ acting alone lacked the power
to dismiss Kleidman’s appeal from the Chase Judgment for lack of appellate
13 Kleidman asked the trial court to take judicial notice of the Second
District’s internal operating practices and procedures, and also provided a
copy that is included in the record on appeal. Under Evidence Code sections
452, subdivision (c) and 459, subdivision (a), we take judicial notice of this
document.
17
jurisdiction, we conclude that the trial court correctly sustained the Judicial
Branch Defendants’ demurrer on these claims without leave to amend.
2. Judicial Immunity Also Bars the Action Against the Second District
and its APJ for Performing their Judicial Functions in the Chase
Appeal
“The concept of judicial immunity is long-standing and absolute, with
its roots in English common law. It bars civil actions against judges for acts
performed in the exercise of their judicial functions and it applies to all
judicial determinations, including those rendered in excess of the judge’s
jurisdiction, no matter how erroneous or even malicious or corrupt they may
be.” (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 851 (Howard).)
The judicial immunity doctrine derives from “ ‘a general principle of the
highest importance to the proper administration of justice that a judicial
officer, in exercising the authority vested in [the officer], shall be free to act
upon [the officer’s] own convictions, without apprehension of personal
consequence to [the officer].’ ” (Tagliavia v. County of Los Angeles (1980) 112
Cal.App.3d 759, 762, quoting Bradley v. Fisher (1871) 80 U.S. 335, 347.) It
also serves the important public policy of “ ‘protect[ing] the finality of
judgments [and] discourag[ing] inappropriate collateral attacks.’ ” (Howard,
supra, 222 Cal.App.3d at p. 852.)
Here, Kleidman’s three remaining causes of action were premised on
acts performed by the APJ and the Second District in “the exercise of their
judicial functions”—determining the timeliness of Kleidman’s notice of appeal
from the Chase Judgment. (See Howard, supra, 222 Cal.App.3d at p. 851.)
Under the judicial immunity doctrine, Kleidman therefore was precluded as a
matter of law from collaterally attacking that determination in a separate
lawsuit against the Second District and its APJ. (See ibid.) Although
judicial immunity does not foreclose some actions seeking prospective
18
declaratory relief—such as an action by retired judges against the Chief
Justice and the Judicial Council seeking prospective declaratory relief
regarding an allegedly discriminatory program for assignment of temporary
judges (Mahler v. Judicial Council of California (2021) 67 Cal.App.5th 82,
109–110 (Mahler))—judicial immunity does foreclose the relief Kleidman is
seeking for retrospective relief against the Second District and the APJ to
declare void final judicial actions taken in a prior appeal. For this separate
reason, we conclude that the trial court properly sustained their demurrer to
the seventh through ninth causes of action without leave to amend.
3. The Allegations Against the Judicial Council Fail as a Matter of Law
In his eighth cause of action, Kleidman sought declaratory relief
against the Judicial Council for promulgating rule 10.1004(c)(2).14 Rule
10.1004(c) lists the “Duties” of an APJ, which include the “responsibility” for
“Unassigned Matters” in subsection (2): “The [APJ] has the authority of a
presiding justice with respect to any matter that has not been assigned to a
particular division.” (Rule 10.1004(c)(2).) Kleidman alleged that the APJ
relied on rule 10.1004(c)(2) in determining the Chase Appeal, and he sought a
declaration that this rule is void under Article VI, section 3 of the California
Constitution and Government Code section 69102. We conclude that these
14 Article VI, section 6 of the California Constitution establishes the
Judicial Council, which “ ‘is a state entity established by the California
Constitution to “improve the administration of justice” and set policies and
priorities for the judicial branch of government. The Council is chaired by
the Chief Justice of California.’ ” (Mahler, supra, 67 Cal.App.5th at pp. 96–
97.) The Judicial Council is authorized to “adopt rules for court
administration, practice and procedure” as long as they are not “inconsistent
with statute.” (Cal. Const., art. VI, § 6(d).)
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allegations against the Judicial Council fail to state a claim as a matter of
law.
First, we have already concluded that the APJ’s determination of the
timeliness of Kleidman’s notice of appeal in the Chase Judgment did not
implicate Article VI, section 3 of the California Constitution or Government
Code section 69102. Accordingly, the allegations in the eighth cause of action
that the Judicial Council acted outside its authority by empowering the APJ
to make this determination fail as a matter of law.
Second, rule 10.1004(c)(2) merely gives an APJ the same authority as a
presiding justice over “any matter” in a case that has not yet been assigned to
a division. Such “matter[s]” might include, by way of example only,
determining whether a vexatious litigant’s appeal has merit or is being
brought for purposes of harassment or delay (see R.H., supra, 170
Cal.App.4th at p. 701); or ruling on applications or motions for calendar
preference (rule 8.240), extensions of time to “file records, briefs, or other
documents” or “to shorten time” (id., 8.50(a)), and for counsel to appear pro
hac vice (id., 9.40(c)(2)); or determining at the outset of an appeal whether an
appellant’s notice of appeal is timely (id., 8.104), as occurred in the
Underlying Litigation.
We conclude that rule 10.1004(c)(2) does not violate Article VI, section
3 of the California Constitution or Government Code section 69102. This rule
merely sets out one of many duties of an APJ in ensuring “a forum for the fair
and expeditious resolution of disputes, and maximizing the use of judicial and
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other resources” in the Courts of Appeal.15 (Rule 10.1004(b).) For this
separate reason, the demurrer to Kleidman’s eighth cause of action against
the Judicial Council was properly sustained without leave to amend.
D. The Trial Court Lacked Jurisdiction to Enter the August 24, 2020
Order and March 3, 2021 Judgment
Kleidman contends the trial court erred in entering the March 3, 2021
judgment because the trial court’s orders of April 24, 2020 and August 24,
2020 constituted “judgments” under section 581d. This statute provides: “A
written dismissal of an action shall be entered in the clerk’s register and is
effective for all purposes when so entered. [¶] All dismissals ordered by the
court shall be in the form of a written order signed by the court and filed in
the action and those orders when so filed shall constitute judgments and be
effective for all purposes, and the clerk shall note those judgments in the
register of actions in the case.” (Italics added.)
Preliminarily, we note that the April 24, 2020 dismissal order was
written, signed by the trial court, and filed in the action. The April 24 order
provided in part: “[T]he Complaint is hereby dismissed, with prejudice, as to
the Judicial Branch Defendants. As prevailing parties, the Judicial Branch
Defendants shall be awarded costs pursuant to [Code of Civil Procedure
sections] 1032 and 1033.5, and [Government Code section] 6103.5 pursuant to
15 Other duties of the APJ include “general direction and supervision of
the clerk/executive officer and all court employees” with certain exceptions
(rule 10.1004(c)(1)); preparation of “reports and assignment of judges or
retired judges” (id., (c)(3)); the transfer of cases, when appropriate and in
cooperation with the Supreme Court (id., (c)(4)); supervision of the “court’s
day-to-day operations” (id., (c)(5)); the budget, as allocated by the Judicial
Council (id., (c)(6)); and the “operation, maintenance, renovation, expansion,
and assignment of all facilities used and occupied by the district” (id., (c)(7)).
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a properly filed Memorandum of Costs.” The order itself defined the “Judicial
Branch Defendants” to include the Second District.
Based on the plain language of section 581d (see Sierra Club, supra, 57
Cal.4th at pp. 165−166), we conclude that the April 24 signed and filed
dismissal order was a final judgment in favor of all Judicial Branch
Defendants—including Division P as part of the Second District.16 By
entering judgment, the trial court exhausted its jurisdiction over the subject
matter of the suit and these parties, except for the amount of costs awarded,
which jurisdiction the court preserved in the April 24 order. (See Dana Point
Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 [noting a
judgment “terminates the litigation between the parties on the merits of the
case and leaves nothing to be done but to enforce by execution what has been
determined” (internal quotation marks omitted)]; White v. White (1900) 130
Cal. 597, 599–600 [noting that after entry of judgment, “the jurisdiction of
the court over the subject matter of the suit and the parties was exhausted”
and “[a]fter final judgment[,] any further judgment, or order materially
varying the judgment, is a mere nullity”]; Barry v. Superior Court of San
Francisco (1891) 91 Cal. 486, 488 [“The first judgment was final, and the only
authority of the court thereafter, in the matter concluded thereby, was the
power to enforce the judgment according to its terms”].) Accordingly, the
August 24, 2020 dismissal order and March 3, 2021 judgment—covering the
same parties and providing the same relief as the April 24, 2020 dismissal
16 Kleidman’s own complaint alleges that Division P is part “of the Court
of Appeal for the Second Appellate District.” As we have explained,
Division P is merely an administrative designation the Second District uses
for motions decided by the APJ before a case is assigned to one of its eight
divisions. (Internal Operating Practices and Procedures, Second Appellate
District, Motions.)
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order—were null and therefore must be reversed.17 Once again, however,
these reversals necessitate no further proceedings on remand because the
prior order of April 24, 2020 fully resolved all issues between Kleidman and
the Judicial Branch Defendants, including Division P.
DISPOSITION
The order of April 24, 2020 is reversed only as to the first through
fourth causes of action asserted against the Supreme Court, the fourth cause
of action asserted against the Judicial Council, and the fifth cause of action
asserted against the Second District. The order of April 24, 2020 is modified
to reflect no ruling on the demurrer to these claims, and as so modified, the
order is affirmed. The order of August 24, 2020 and the judgment of March 3,
17 In light of our decision, we deem it unnecessary to address additional
issues raised by the parties, including Kleidman’s claim that the trial court
erred in denying his motion for entry of default against Division P because it
allegedly was not a demurring party in the Judicial Branch Defendants’
demurrer; and the Judicial Branch Defendants’ claims that the seventh
through ninth causes of action failed as a matter of law because of claim/issue
preclusion and/or the litigation privilege in Civil Code section 47, subdivision
(b).
23
2021 are reversed. In the interests of justice, the parties shall bear their own
costs on appeal. (Rule 8.278(a)(5).)
BUCHANAN, J.
WE CONCUR:
HUFFMAN, Acting P. J.
CASTILLO, J.
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