Opinion
E068567
07-19-2018
In re the Marriage of REZK ABDELRAHMAN and STEPHANIE ABDELRAHMAN. REZK ABDELRAHMAN, Appellant, v. STEPHANIE ABDELRAHMAN, Respondent.
Rezk Abdelrahman, in pro. per., for Appellant. No appearance for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RID1500436) OPINION APPEAL from the Superior Court of Riverside County. Belinda Handy, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Dismissed. Rezk Abdelrahman, in pro. per., for Appellant. No appearance for Respondent.
In this appeal, we were asked to review a postjudgment order denying appellant Rezk Abdelrahman's (husband) request that respondent Stephanie Abdelrahman (wife) list certain real property for sale pursuant to the terms of the judgment of dissolution, and requiring him to pay wife's attorney fees in connection with postjudgment proceedings. However, after receipt of the tentative opinion, appellant requested that the appeal be dismissed. The request is unopposed.
I. PROCEDURAL BACKGROUND AND FACTS
The parties dissolved their marriage in March 2016. Pursuant to the terms of the judgment, wife was awarded the home on Laurel Ridge Lane (the Property). Because she was unable to transfer the Property's loan into her name, the judgment provides that it will remain in husband's name, but that she is solely responsible for all of its expenses (including mortgage payments, property taxes, homeowners' association fees, property insurance, landscaping and maintenance). If wife fails or refuses to pay any or all of the expenses, and husband pays them, he is entitled to deduct the amount from the spousal support payments or seek reimbursement. If wife fails or refuses to make "payments in a timely manner for any three months during any calendar year commencing July, 2015, [t]he [P]roperty shall be listed for sale and sold by a realtor selected by [wife]." The trial court reserved jurisdiction over the entire issue of disposition of the Property until the loan is refinanced. The judgment also provides that the parties "shall be responsible for their own attorney fees and costs of litigation."
On December 27, 2016, husband demanded that wife list the Property for sale because she had failed to pay all of the expenses associated with it. Husband provided documentation that the loan was in default (wife failed to pay the mortgage for more than three consecutive months), that the homeowners' association had filed a lien against the Property for failure to pay dues, and that the property taxes were delinquent. On January 19, 2017, husband moved for an order requiring wife to refinance the Property within 90 days to remove his name, or list it for sale pursuant to the judgment. On January 23, 2017, wife moved for an order awarding her attorney fees and costs, enforcing the agreement in the judgment, and determining the amount arrears for spousal and child support.
The hearing on both motions was held on May 26, 2017. By that time, wife was current on the mortgage payments, in negotiation with the homeowners' association to bring the dues current, and had agreed to make higher monthly payments (the increase to go into escrow) to pay off the balance of $1,200 for property taxes on the Property. The court denied husband's request to have the Property listed for sale, but granted wife's request for attorney fees. Husband appeals.
After this case was fully briefed and a tentative opinion had been drafted and mailed to the parties in June, husband filed a Request for Dismissal of Appeal on July 2, 2018. It is unclear whether husband seeks dismissal after receiving the tentative opinion, but prior to oral argument, because the parties have settled the matter, or otherwise.
II. REQUEST FOR DISMISSAL
Pursuant to California Rules of Court, rule 8.244(c)(2), "On receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct immediate issuance of the remittitur." We note that dismissal is discretionary. While this court strongly encourages parties to resolve their differences, if possible, via the settlement process, once the case has been fully briefed, it is assigned to a justice for preparation of the tentative opinion. To that end, valuable court resources are engaged in reviewing the entire record, researching the issues raised, and drafting the tentative opinion. Out of courtesy to the court and all parties involved, when settlement of a case is being discussed, the party initiating those settlement discussions should request a stay of further action in order to avoid wasting valuable judicial resources. Moreover, rule 8.244(a)(1) states: "If a civil case settles after a notice of appeal has been filed either as a whole or as to any party, the appellant who has settled must immediately serve and file a notice of settlement in the Court of Appeal." (Italics added.)
All further "rule" references are to the California Rules of Court. --------
"Since 1851, California appellate courts have been statutorily authorized to impose sanctions for the prosecution of frivolous civil appeals. [Citations.] Thus, under the present statute, section 907 of the Code of Civil Procedure (section 907), if a reviewing court has found an appeal 'was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.' Though the instant appeal is not frivolous within the meaning of [In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649] and not taken for the purpose of delay, and section 907 is therefore inapplicable, the reasoning of courts that have imposed sanctions under section 907 is nevertheless pertinent to [husband's] conduct. Because the traditional purpose of imposing sanctions under section 907 was to compensate the respondent for being put to the expense of defending a frivolous appeal or one taken solely for the purpose of delay, costs were ordinarily made payable to the respondent to compensate him or her for the costs necessarily incurred in answering the frivolous appeal. Increasingly, however, sanctions for the filing of frivolous appeals have also been made payable to the court. As [our colleagues in the First District, Division Four] pointed out in the much-cited opinion in [Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1], respondents 'are not the only parties damaged when an appellant pursues a frivolous claim. Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are prejudiced by the useless diversion of this court's attention. [Citation.] In the same vein, the appellate system and the taxpayers of this state are damaged by what amounts to a waste of this court's time and resources. [Citations.] Accordingly, an appropriate measure of sanctions should also compensate the government for its expense in processing, reviewing and deciding a frivolous appeal. [Citations.]' [Citations.]
"This reasoning is as applicable to the instant appeal as it is to those that are frivolous. Indeed, where, as here, the rule violation did not injure the respondent, making sanctions payable to the court may be particularly appropriate because the misconduct would not otherwise be punishable, and judicial ability to discourage violations of rules essential to the efficient administration of justice would be diminished.
"Presumably for this reason, the rules of court provide that, on its own motion (or that of a party), a Court of Appeal may impose sanctions on a party or an attorney not only for '(1) Taking a frivolous appeal or appealing solely to cause delay; [¶] (2) Including in the record any matter not reasonably material to the appeal's determination; [or] [¶] (3) Filing a frivolous motion;' but also for '(4) Committing any other unreasonable violation of these rules.' [Citation.]" (Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1160-1162, original italics, fn. omitted; see rule 8.276(a)(1)-(4).)
We agree with the analysis in Huschke v. Slater, supra, 168 Cal.App.4th 1153 and conclude that husband's failure to comply with rule 8.244(a)(1) is arguably inexcusable and "unreasonable" under rule 8.276(a)(4). By the time of the mailing of the tentative opinion, considerable time and resources had been devoted to this pointless appeal. Thus, it is appropriate to sanction husband in an amount that reflects the current cost to the court of processing this appeal through the mailing of the tentative opinion. A 2008 case cites a cost analysis by the clerk's office for the Second Appellate District that estimated the cost of processing an appeal that results in an opinion by the court to be approximately $8,500. (In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 520.) Recognizing the legal issues involved in this appeal are not complex, and the matter did not proceed to oral argument, we would approximate a sanction of $5,500 to be appropriate to reimburse the state for the costs of this appeal.
Notwithstanding the above, it is in our discretion to sanction husband for his failure to comply with rule 8.244(a)(1), to dismiss the appeal under rule 8.244(c)(2), or to do both. While we are tempted to do both, we will only grant the request and dismiss the appeal. However, let this opinion be a warning to appellant that any future failure to comply with rule 8.244(a)(1) will be considered inexcusable and "unreasonable" under rule 8.276(a)(4), subject to sanctions.
III. DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.