Filed 4/20/20 Portee v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

DAVID BERNARD PORTEE,

Petitioner,

v.

THE SUPERIOR COURT OF SANTA CLARA COUNTY,

Respondent,

THE PEOPLE,

Real Party in Interest.

No. H047155

(Santa Clara County

Super. Ct. No. 80888)

Petitioner David Bernard Portee seeks a writ of mandate after the Santa Clara County Superior Court (the superior court) denied his motion to vacate a judgment, insisted that his motion had been a habeas petition, and refused to allow him to file a notice of appeal from the denial of his motion on the ground that it had determined that the order was not appealable. Portee seeks a writ of mandate requiring the superior court to file his notice of appeal so that this court can consider whether the order he challenges is appealable. We find that the superior court had a ministerial duty to file Portee’s notice of appeal. Accordingly, we will issue a peremptory writ of mandate in the first instance commanding the superior court to file Portee’s notice of appeal.

The background of this case is quite straightforward. In May 2019, Portee filed a “MOTION TO VACATE VOID JUDGMENT.” He claimed that a 1981 criminal court judgment was “void on its face” because the court that had entered the judgment had lacked subject matter jurisdiction. A week later, the superior court issued an order entitled “ORDER DENYING HABEAS CORPUS PETITION.” This order stated that Portee’s “ ‘Motion to Vacate Void Judgment’ . . . is DENIED.”

In June 2019, Portee submitted to the superior court a notice of appeal challenging the superior court’s order denying his motion. Two weeks later, the superior court issued an order refusing to file Portee’s notice of appeal. The superior court reasoned that Portee was attempting to appeal from a nonappealable order denying a habeas petition. Although the superior court acknowledged that it was not aware of any rule “expressly provid[ing] a mechanism for screening nonappealable orders,” it concluded that it was “free to strike” the notice of appeal rather than “undertak[ing[ the time and expense of producing for, and transmitting to, the Court of Appeal the case file and full record for a facially deficient ‘appeal.’ ”

In August 2019, Portee filed in this court a petition for a writ of mandate compelling the superior court to file his notice of appeal. We requested and received preliminary opposition from real party in interest the People. However, the preliminary opposition addressed only whether the order denying Portee’s motion was appealable and did not address the issue of whether the superior court had a ministerial duty to file Portee’s notice of appeal.

We issued an order in November 2019 notifying the parties that we were “considering issuing a peremptory writ of mandate in the first instance (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241), commanding respondent court to vacate its June 19, 2019 order refusing to take action on the notice of appeal and to enter a new and different order commanding the superior court clerk to file and begin processing the notice of appeal.”

Our November 2019 order explained: “ ‘If a document is presented to the clerk’s office for filing in a form that complies with the rules of court, the clerk’s office has a ministerial duty to file it.’ (Voit v. Superior Court (2011) 201 Cal.App.4th 1285, 1287; see also Lezama-Carino v. Miller (2007) 149 Cal.App.4th 55, 59; Carlson v. Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1276.) When a notice of appeal is filed, the superior court clerk is required under the rules of court to promptly send a notification of the filing to the reviewing court clerk (Cal. Rules of Court, rule 8.304(c)) and begin preparation of the record (Cal. Rules of Court, rule 8.336). Although the superior court’s order acknowledged that the rules of court ‘do[] not expressly provide a mechanism for screening nonappealable orders,’ the superior court appears to have screened out petitioner’s notice of appeal based on its determination that the appeal was taken from a nonappealable order. However, it is for the appellate court, not the trial court, to determine whether a notice of appeal is valid. (See Leonard v. Superior Court (2015) 237 Cal.App.4th 34, 44-45.)” The People declined to file further opposition.

We have already succinctly explained in our November 2019 order why the superior court lacked the authority to refuse to file Portee’s notice of appeal based on its own determination that the challenged order was nonappealable. The People do not challenge our analysis or conclusion. Since the superior court had a ministerial duty to file the notice of appeal, we issue the requested relief.

Let a peremptory writ of mandate issue commanding respondent superior court to vacate its June 19, 2019 order refusing to take action on the notice of appeal and to enter a new and different order commanding the superior court clerk to file and begin processing Portee’s June 2019 notice of appeal. 

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Greenwood, P. J.

_____________________________

Bamattre-Manoukian, J.

Portee v. Superior Court

H047155