Opinion
A160202
08-31-2020
JANET E. HUME, Plaintiff and Respondent, v. EDWARD HUME, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV426301)
Janet Hume moves to dismiss her son Edward's appeal from an order denying his motion to quash service of a motion for attorneys' fees incurred defending against Edward's third and fourth appeals in this protracted family dispute. (See Hume v. Hume (Aug. 30, 2019, A152546, A154161) (Hume I) [nonpub. opn.].) Edward seeks to appeal a nonappealable order, so we grant the motion to dismiss. Janet's accompanying motion for sanctions is denied.
Because the parties have the same last name, we use their first names to avoid confusion. We intend no disrespect by this practice.
We begin where we last left off. In 2019 we affirmed two orders rejecting Edward's most recent efforts to challenge a judgment entered in 2004. (See Hume I, supra, A152546, A154161.) Upon remand to the trial court, Janet moved for an award of her fees and costs on appeal. Edward moved to quash service of the motion "or in the alternative, dismiss or strike same on grounds no action pending and lack of fundamental jurisdiction."
We grant Janet's motion to augment the record on appeal to include the moving papers supporting her fee motion.
The trial court denied the motion. It explained: "The Court of appeal considered and rejected Defendant's 'no jurisdiction' argument. (Hume I, supra, A152546, A154161 at 7-10 [court may exercise jurisdiction when parties failed to request retention of jurisdiction until after dismissal has been entered].) The Court of Appeal's ruling on the issue of the trial court's jurisdiction after the dismissal was entered is now law of the case. The court has jurisdiction to hear Defendant's motion for attorney's fees."
Edward then filed this appeal. Janet moved to dismiss on the grounds it is from a nonappealable order and patently frivolous. In opposition, Edward does not directly address the issue of appealability. Instead, he argues the trial court lacks jurisdiction over the case (and has lacked it since July 2004) and that our opinion in Hume I is "illegible for elevation to 'law of the case' status." Alternatively, he asks this court to treat his purported appeal as a writ petition.
The controlling law is not reasonably subject to debate. Edward's notice of appeal indicates the order denying his motion to quash service is appealable under Code of Civil Procedure section 904.1, subdivision (a)(2). That provision permits an appeal to be taken from an order made after an appealable judgment. But not every postjudgment order is appealable. As the Supreme Court stated in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651, section 904.1, subdivision (a)(2) does not make appealable orders that "although following an earlier judgment, are more accurately understood as being preliminary to a later judgment, at which time they will become ripe for appeal." (Id. at pp. 652-653.)
In relevant part, section 904.1 provides: "(a) An appeal, other than in a limited civil case, is to the court of appeal. An appeal, other than in a limited civil case, may be taken from any of the following: [¶] (1) From a judgment, except an interlocutory judgment . . . . [¶] (2) From an order made after a judgment made appealable by paragraph (1)."
Further statutory citations are to the Code of Civil Procedure.
Thus, for example, in Roden v. AmerisourceBergen Corp. (2005) 130 Cal.App.4th 211, 216, a post-judgment order compelling discovery on the amount of damages owed under the judgment was not appealable because it was "a prelude" to a contemplated later order establishing that amount. For the same reason, Rogers v. Wilcox (1944) 62 Cal.App.2d 978 (Rogers) held no appeal lay from an order denying a motion to quash an order for the appearance of a judgment debtor because "[i]t was one of the steps taken in the course of a proceeding to obtain an order . . . . It did not constitute a final order. A court should not be interrupted in the exercise of its jurisdiction until its judgment has become final. Error in the course of a proceeding does not warrant a review." (Id. at p. 979; see also Fox Johns Lazar Pekin & Wexler, APC v. Superior Court (2013) 219 Cal.App.4th 1210, 1215-1216 [orders denying motion to quash postjudgment order to appear and compelling discovery response held nonappealable].)
The order denying Edward's motion to quash service of Janet's attorneys' fees motion is no different in this regard. It is not "in itself an end," but "merely a step reviewable only after a final order has been made." (Rogers, supra, 62 Cal.App.2d at p. 97.) Any appellate challenge to the denial of Edward's motion to quash service of the attorneys' fees motion must await adjudication of the fee motion.
Janet also asks this court to impose sanctions against Edward for filing a frivolous appeal. Our power to punish litigants for prosecuting frivolous appeals "should be used most sparingly to deter only the most egregious conduct." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651.) This appeal pushes the boundary of that territory, but the due process implications of sanctioning litigants for pursuing frivolous appeals (see id. at pp. 652-651) persuade us against exercising that power at this juncture.
DISPOSITION
The appeal is dismissed. The request for sanctions is denied.
/s/_________
Siggins, P.J.
WE CONCUR:
/s/_________
Fujisaki, J.
/s/_________
Petrou, J.