28/10/2024
Fresno Superior Court Civil unlimited Division
Petitioner Phillip Sanders | Case # Number —------------------
Declaration to vacate prefiling order
and request to file new litigation
Introduction
According to section 391.8(a), a vexatious litigant subject to a prefiling order under Section391.7 may file an application to vacate the prefiling order and remove his or her name from the Judicial Council’s list of vexatious litigants
According to 391.8(c), a court may vacate a prefiling order and order removal of a vexatious litigant’s name from the Judicial Council’s list of vexatious litigants upon a showing of a material change in the facts upon which the order was granted and that the ends of justice would be served by vacating the order. The application may be filed in conjunction with a request to the presiding justice or presiding judge to file new litigation under Section 391.7.
Under section 391.7(e), the presiding justice or presiding judge of a court may designate a justice or judge of the same court to act on his or her behalf in exercising the authority and responsibilities provided under subdivisions (a) to (c), inclusive.
Petitioner has submitted Disqualification of presiding judge Sanderson and Civil assistant judge Hamilton for Bias or Prejudice under CCP §170.1 & 170.6
Therefore petitioner submit this application to vacate the prefiling order and remove his name from the Judicial Council’s list of vexatious litigants in conjunction with a request to the judge assigned by presiding judge to file new litigation under Section 391.7.
Noting 4 concerns for review first of which the June 8 2011 vexatious order was improper overly broad not supported by the record as required to meet the statue none of which was finally determined adversely to the person or defendant and never gave any specific case or case number as to which statue applied
Basically the order found Petitioner to be vexatious by the means of 391(b) 1,2 and 3 all 3 having different statues the overly broad order combined all three statutes together never listing 1 case number or how it applied to what statue
making it impossible to determine adequate records needed to determine a person vexatious also making it impossible to determine the full requirements of the statue and what case it applied to most important the contradicting tentative ruling hearing minute order supporting the merit against the defendant
Noting the second concern a material change in the facts upon which the order was granted newly found evidence found in 2019 and 2023 by the defendants attorney admitting to fraudulent acts
third concern defendant fraudulent acts have resurfaced in 2023 and the newly found evidence should prove that the ends of justice would be served by vacating the order.
4th the request to file new litigation against the defendant when the fraudulent act resurface are within the statue of limitations to bring a new claim
Unlike the improper june 8th 2011 order that provided no judges order from any case and no documentation or minuted orders needed to support the record
Petitioner has provided the original 2011 improper order well as hearing dockets contradicting the merits and statues needed to support the improper order that never raised to the level of litigiousness according to the statutes required to determine a person vexatious
A improper order that does not meet the statue requirements to determine a person vexatious Clearly violates the persons 14th amendment due process constitutional right While at the same time denying the person access to the court is oppressive highly prejudicial
The designated judge well as the appeal judge must review the application to determine if the improper order meets the full requirements of each statue 391(b) 1,2 and 3 none of which having a adequate record for the courts review and none of which meeting the complete statues of the rule before determining anyone vexatious
Here You have a vexations litigate order brought on the Court's own motion listing nine cases
First order States plaintiff brought 5 cases in 7 years dismissed against him
Never identifying what case and why it was dismissed most important whenever identifying in one case adverse to the person or defendant overly broad unsupported by the record
Second plaintiff filed numerous ex parte motions without regard for procedural subsidence never identifying one case number one motion hearing date or one case adverse to a person or defendant plus more a exparte motion is not the same as finally determined to be adverse to the person overly broad unsupported by the record
Third order state brought numerous Cases dismissed against him for lack of diligent prosecution once again never identifying what case or case number plus more lack of diligent prosecution does not meet the standard of finally determined to be adverse to a person or defendant
Therefore it is impossible I'll be found vacation by the means of 391b.1.2and 3
When not one case or case numbers can be identified to meet the full requirements of the statute finally determined to be adverse to the person
Not to mention the erroneous order that found petitioner to be vexatious under three different statues without meeting the full elements of one statute
Canon 2. A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
Canon 3. A judge shall perform the duties of judicial office impartially, competently, and diligently.
Conclusion the designated judge assigned to this application and or the appeal judge if application is denied. Must vacate this erroneous order by diligant review of the statue requirements under 391(b) 1,2,and 3 before determining a peroson vexatious as overly broad and unsupported by the record
points And Authorities
Morton v. Wagner, 67 Cal. Rptr. 3d 818 - Cal: Court of Appeal, 6th Appellate Dist. 2007 The appeal from the order denying the motion to reconsider is dismissed as taken from a nonappealable order. The order designating appellant a vexatious litigant is reversed. The prefiling order requirement is hereby stricken. The clerk of this court is directed to forward a copy of this opinion to the Judicial Council with instructions that they remove appellant's name from the list of vexatious litigants. Each party to bear their own costs on appeal.
MARTINA L. WALKER, v.KEITH STANTON, ARCHIE "JOE" BIGGERS No. 72-1146 states "An adequate record for review should include a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed." De Long, 912 F.2d at 1147. Here, the record before the Court includes docket reports and some of the
documents and orders filed in earlier litigation initiated by Tate against many of the same Defendants
Steven M. De LONG, Also states orders restricting a person's access to the courts must be based on adequate justification supported in the record and narrowly tailored to address the abuse perceived. We find such care is demanded in order to protect access to the courts, which serves as the final safeguard for constitutional rights.
submitting additional filings,;(2) the court should create an adequate record for review, "[i] n keeping with the exigent nature of injunctions and the caution required in issuing injunctions"; GHARB v. MITSUBISHI ELECTRIC CORPORATION, 2015
Thomas Powell, No. 87-7122 (D.C.Cir. Oct. 28, 1987) states (pre-filing injunction could not stand because magistrate stated that "petitioner has been a constant litigator" but failed to state that petitioner's claims were frivolous or brought in bad faith)
See also Moy, 906 F.2d at 470 (A pre-filing "injunction cannot issue merely upon a showing
of litigiousness.
mere litigiousness alone does not support the issuance of an injunction.[14] See Ruderer v. United States, 462 F.2d 897, 899 (8th Cir.) (per curiam), cert
Any such restrictions must be narrowly tailored to protect that interest "without unduly impair [ing] a litigant's right of access to the courts." - in Smith v. Scalia, 2014
Second, the court must develop a record for review "in order to further ensure that the filer's due process rights are not violated."- in Caldwell v. Obama, 2013 and 8 similar citations
312 A.3d 214 (2024) Elliotte P. COLEMAN, Appellant,v. CARRINGTON MORTGAGE SERVICES, LLC, Appellee.No. 21-CV-0744. States A prefiling injunction "is an extreme sanction and should be imposed in only the most egregious cases." Id. at 434. Where Mr. Coleman's filings were not exceptionally numerous, not the focus of other courts' efforts to enjoin more such filings, and not wholly unsuccessful, the trial court's denial of Mr. Coleman's motion to lift the injunction was an abuse of discretion.[8] For the foregoing reasons, we vacate that order and remand for further proceedings
