Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. TCO21669 William Barry, Judge.
Freddie Fletcher, in pro. per.
Friedman Stroffe & Gerard, Robert Gerard and Jeanine Scalero, for Defendants and Respondents.
ZELON, J.
INTRODUCTION
After Plaintiff Sandra Ashford failed to appear for her deposition, the trial court ordered her attorney, Appellant Freddie Fletcher, to pay discovery sanctions. In addition, the trial court assigned a discovery referee to attend all further depositions, with the parties to split the costs. Ashford objected to the referee on the ground that she could not afford the costs. In response, the court ordered Fletcher to pay his client’s share of the costs. Fletcher alleged that he did not have sufficient resources to comply with the order and, the day before the Defendants were scheduled to depose Ashford, he substituted out of the case. Defendants proceeded with Ashford’s deposition, which was attended by the discovery referee and Ashford’s newly substituted counsel. Although Fletcher did not attend the deposition, the court ordered him to pay half the costs charged by the referee. Fletcher never paid the initial discovery sanction or his share of the referee costs. Several months later, the trial court sanctioned Fletcher pursuant to Code of Civil Procedure section 177.5 for failing to comply with its previous orders.
All further statutory citations are to the Code of Civil Procedure unless otherwise indicated.
On appeal, Fletcher argues that the trial court’s section 177.5 sanctions are invalid because: (1) the court had no authority to order Fletcher to pay the referee costs, and therefore had no authority to sanction him for failing to comply with that order, and (2) the court abused its discretion in awarding section 177.5 sanctions because it did not give Fletcher a reasonable amount of time to comply with the court’s initial orders. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Trial Court’s Imposition of Discovery Sanctions and Assignment of a Discovery Referee
In June and July of 2008, Plaintiff Sandra Ashford failed to appear for a properly noticed deposition. On August 7, 2008, Ashford finally appeared for her deposition, but it was terminated prior to completion because of a dispute between the parties’ attorneys. Defendants re-scheduled the deposition for March 31, 2009; Ashford again failed to appear.
Defendants filed a motion to compel Ashford’s deposition and sought discovery sanctions for her failure to appear at the March 31 deposition. In addition, Defendants requested sanctions against Ashford’s counsel, Freddie Fletcher, for his alleged misconduct during the August 7, 2008 deposition.
On May 12, 2009, the court entered an order finding that Ashford failed to demonstrate any justification for missing the March 31 deposition. The court also found that Fletcher had engaged in egregious misconduct during the August 7, 2008 deposition:
[Defendant’s] motion included matters that did not directly involve plaintiff’s failure to appear on March 31st, namely the question of whether Mr. Fletcher’s conduct at [the] August 7th deposition session... was so “outrageous explosive and unprofessional” that the court ought to take action to stop it. Because Mr. Fletcher vehemently denied that such conduct occurred, the court decided that it would take the motion under submission and view the deposition session.
Now that it has done so, the court can state that Mr. Fletcher acted “outrageously, explosively and unprofessionally” throughout the deposition. In 31 years as an attorney and a judge, the court has never seen such unprofessional conduct. Not only was Mr. Fletcher disruptive, rude, impatient, and abusive to opposing counsel, he was rude to his client.... To say that Mr. Fletcher was out of control is an understatement.
The court sanctioned Fletcher $2,035 to compensate Defendants for the costs they incurred in preparing for the March 31 deposition. The court elected not to award additional sanctions for Fletcher’s misconduct at the August 7 deposition, explaining that “the conduct at plaintiff’s... deposition..., while important, [was] not necessary for this motion to compel to be decided.” However, acting sua sponte and without any prior notice to the parties, the court assigned a discovery referee to “attend all depositions, ” which was intended to “to minimize the potential for disruptive conduct at future depositions.” The costs of the referee were to be split between the parties, “50% to be paid collectively by defendants, and 50% by plaintiff, in advance.” The court instructed the parties to provide the names of three candidates for the discovery referee within 14 days, and required that Ashford’s deposition be “completed by June 12, 2009.” The court warned the parties that “[t]ermination sanctions are possible if her deposition is not completed by that date.”
On May 22, 2009, Defendants submitted a list of three candidates to serve as the discovery referee. In response, Ashford filed a notice stating that although she was joining in Defendants’ list of candidates, she objected to the assignment of a referee because she could not afford to pay her share of the costs. Ashford also filed a motion for reconsideration of the assignment of the discovery referee and award of discovery sanctions, which was scheduled to be heard on July 28, 2009.
On May 29, 2009, the trial court entered an order appointing Retired Judge Eric E. Younger to serve as discovery referee and directed that Younger was to “attend all future depositions” and “hear and determine any and all disputes that arise in the course of said depositions.” The court also amended its order of May 12 by requiring Fletcher to pay Ashford’s share of the referee costs. Although no party had sought such relief, the court explained that “Mr. Fletcher, not his client is the reason the referee is required.”
On June 1, 2009, Defendants served a notice scheduling Ashford’s deposition for June 5, 2009. The next day, Fletcher notified Defendants that he was unable to pay for the referee’s services and intended to substitute out of the case. Defendants immediately sent Fletcher a letter stating that, in their view, Fletcher was required to pay his share of the referee costs even if he substituted out of the case.
On June 4, 2009, Ashford filed a substitution of counsel notifying the court that Maryetta Marks was replacing Fletcher as her attorney of record. Ashford also filed an objection to the May 29 order requiring Fletcher to pay a portion of the referee costs, arguing that: (1) the court had failed to provide any notice “of any motion... to appoint a discovery referee... [or] any motion.... that plaintiff’s counsel pay the cost of a discovery referee”; (2) Fletcher did not have sufficient resources to pay his share of the referee costs; and (3) the referee was no longer necessary because Fletcher had substituted out of the case.
Ashford’s substitute counsel, Maryetta Marks, also filed a notice indicating that she had substituted into the case and requested that the court enter an order clarifying whether, as substitute counsel, she was required to pay Ashford’s share of the referee costs.
Although the court had not acted on Ashford’s objection to the May 29 order or Marks’s request for a clarifying order, the parties went forward with Ashford’s deposition on June 5, 2009, with Judge Younger and Marks in attendance. Two weeks after the deposition was completed, the court entered an order stating that “Plaintiff’s ‘Objection’ to the referee is untimely and is denied... Mr. Fletcher remains responsible for paying the referee’s fees incurred in finishing plaintiff’s deposition. Plaintiff’s counsel is not responsible for those fees, nor is plaintiff. [¶] If Mr. Fletcher attends any future depositions, the referee is required and he must pay plaintiff’s share of the referee’s fees and expenses. If he does not attend, the referee is not required.”
On June 30, 2009, the court entered an additional order requiring Fletcher to pay $2,335 “for the services rendered by... the Honorable Eric Younger pursuant to the court’s May 29, 2009 order appointing Judge Younger as the discovery referee.... It is further ordered that said payment must be made within 15 days of this signed order.”
After the June 30 order was entered, Ashford amended her motion for reconsideration (originally filed on May 28, 2009), and argued that the court should withdraw all orders related to the discovery referee as well as its order requiring Fletcher to pay a $2,035 sanction for Ashford’s failure to appear at the March 31, 2009 deposition. On July 28, the trial court denied the motion as untimely.
B. Ashford’s Appeal and the Trial Court’s Imposition of Section 177.5 Sanctions
On September 28, 2009, Ashford and Fletcher appealed the trial court orders filed on May 12 and May 29, as well as the July 28, 2009 order denying Ashford’s motion for reconsideration of those orders. The notice of appeal indicated that Ashford and Fletcher were specifically challenging: (1) the appointment of a discovery referee; (2) the requirement that Fletcher pay Ashford’s share of the referee costs; and (3) the discovery sanction imposed against Fletcher for Ashford’s failure to appear at the March 31 deposition.
The appeal sought review of other parts of the May orders, including the trial court’s factual findings regarding Fletcher’s conduct at the August 7, 2008 deposition and the trial court’s decision to refer Fletcher to the State bar. Because Fletcher has not referenced or challenged those portions of the orders in the current appeal, we do not address them.
While the appeal was pending, Defendants filed a notice in the trial court indicating that Fletcher had not paid his discovery sanctions or his share of the money owed to the discovery referee. On November 20, 2009, the trial court issued an Order to Show Cause (OSC) regarding “compliance with Court’s May 12, 2009 and May 29, 2009” orders, which was to be heard on December 11, 2009.
On November 23, 2009, the Court of Appeal dismissed Ashford and Fletcher’s appeal as untimely, explaining that although the trial court’s orders were “appealable by virtue of the collateral order doctrine, ” the notice of appeal had not been filed within time limits required under California Rule of Court 8.104.
On December 11, 2009, the trial court held a hearing on its OSC. Based on Defendants’ representation that Fletcher had failed to pay his discovery sanctions or his share of the referee costs, the court set a hearing on January 5, 2010 regarding “the imposition of sanctions for failure to obey the Court’s Orders of May 12, 2009 and May 29, 2009 pursuant to Code of Civil Procedure 177.5.”
As of January 5, the Court of Appeal had not yet issued a remittitur; the trial court re-scheduled the OSC for January 29, 2010. The remittitur issued on January 27, and the court proceeded with the sanctions hearing two days later. At the conclusion of the hearing, the court entered an order finding that Fletcher had not provided any justification for failing to comply with the “court’s orders of May 12, 2009 and May 29, 2009.” Pursuant to section 177.5, the trial court sanctioned Fletcher $1,500 for failing to comply with its prior orders. Fletcher filed a timely appeal of the section 177.5 sanctions.
The trial court’s order entering section 177.5 sanctions is immediately appealable because Fletcher is no longer representing Plaintiff and, therefore, the order is final as to him. (See Barton v. Ahmanson Developments, Inc. (1993) 17 Cal.App.4th 1358, 1361; Rail-Transport Employees Assn. v. Union Pacific Motor Freight (1996) 46 Cal.App.4th 469, 475, fn.7.))
DISCUSSION
Fletcher raises two issues on appeal. First, he asserts that the trial court orders requiring him to pay a share of the discovery referee costs are void, thereby rendering the section 177.5 sanctions void. Second, Fletcher contends that the court abused its discretion when it entered section 177.5 sanctions because it did not provide sufficient time to comply with the underlying orders.
A. The Trial Court’s Discovery Referee Orders are Not Void
Section 177.5 states, in relevant part: “A judicial officer shall have the power to impose reasonable money sanctions, not to exceed [$1,500], ... for any violation of a lawful court order by a person, done without good cause or substantial justification.” The trial court sanctioned Fletcher the statutory maximum of $1,500 for failing to comply with a May 29 order requiring him to pay his client’s share of the discovery referee costs. Fletcher contends that the trial court had no authority to order him to pay his client’s share of the discovery referee, and therefore could not sanction him for failing to comply with that allegedly unlawful order.
The trial court also imposed section 177.5 sanctions based on Fletcher’s failure to comply with a May 12 order requiring him to pay discovery sanctions for Ashford’s failure to appear at the March 31 deposition. Fletcher has not challenged the May 12 discovery sanction.
Respondents argue that Fletcher may not challenge the underlying order requiring him to pay referee costs (the May 29 order) because this court already rejected a prior appeal of that same order. In September of 2009, Fletcher filed a notice of appeal of the May 29 order. We dismissed the appeal as time-barred. Unless expressly made without prejudice, the dismissal of an appeal constitutes an “affirmance of the judgment [and] no second appeal from the same judgment can be maintained.” (Linn v. Weinraub (1948) 85 Cal.App.2d 109, 110 (Linn); see also Sullivan v. Gage (1905) 145 Cal. 759, 770-771 (Sullivan) [“dismissal [of an appeal] prevents a second appeal, and relieves the order or judgment from attack for error or irregularity which could have been taken advantage of upon appeal”]; Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1017-1018; Code of Civ. Proc. § 913.) Our prior dismissal was not made without prejudice, which would normally preclude Fletcher from seeking review of the May 29 order in the current appeal.
Fletcher, however, contends that these well-established rules of appellate procedure do not apply here because the May 29 order is void. A void judgment “is simply a nullity” and therefore may be challenged at any time. (Moore v. Kaufman (2010) 189 Cal.App.4th 604, 616 (Moore); Sullivan, supra, 145 Cal. at p. 771 [“The affirmance of the appellate court of a void judgment imparts to it no validity”]; Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1086-1087 [void order reviewable regardless of whether appeal filed within 60 days].) “[S]ubsequent orders purporting to enforce... [a void] judgment” are “likewise void.” (Moore, supra, 189 Cal.App.4th at p. 616.) Therefore, if the May 29 order requiring Fletcher to pay referee costs is void, the trial court’s subsequent imposition of sanctions for failing to comply with that order is also void. Conversely, if the underlying order is merely voidable, Fletcher is barred from challenging the order in this second appeal. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 140 [voidable order is “‘“valid until set aside, and parties may be precluded from setting it aside by such things as waiver... or the passage of time”’”]; Linn, supra, 85 Cal.App.2d at p. 110 (dismissal of an appeal constitutes an “affirmance of the judgment [and] no second appeal from the same judgment can be maintained”].)
Whether the trial court’s prior orders were void, thereby rendering its section 177.5 sanctions void, presents a question of law to which we apply a de novo standard of review. (City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (2003) 113 Cal.App.4th 465, 472.)
1. Summary of legal principles governing void versus voidable orders
“The distinction between void and voidable orders is frequently framed in terms of the court’s jurisdiction.” (Lee v. An (2008) 168 Cal.App.4th 558, 563-564 (Lee).) “Essentially, jurisdictional errors are of two types. ‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ [Citation.] When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and ‘thus vulnerable to direct or collateral attack at any time.’ [Citations].” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 (American Contractors).)
“However, ‘in its ordinary usage the phrase “lack of jurisdiction” is not limited to these fundamental situations.’ [Citation.] It may also ‘be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’ [Citation.] ‘[W]hen a statute authorizes [a] prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction.’ [Citation.] When a court has fundamental jurisdiction, but acts in excess of its jurisdiction, its act or judgment is merely voidable. [Citations.] That is, its act or judgment is valid until it is set aside, and a party may be precluded from setting it aside by ‘principles of estoppel, disfavor of collateral attack or res judicata.’ [Citation.] Errors which are merely in excess of jurisdiction should be challenged directly, for example by motion to vacate the judgment, or on appeal, and are generally not subject to collateral attack... unless ‘unusual circumstances were present which prevented an earlier and more appropriate attack.’” (American Contractors, supra, 33 Cal.4th at p. 661.)
2. The trial court’s discovery referee orders are voidable, not void
Fletcher argues that there are three reasons why the trial court’s order requiring him to pay referee costs is void. First, he contends that the order violated section 645.1, which specifically prohibits a court from imposing referee costs on a party’s attorney. Second, he asserts that the trial court violated his due process rights by failing to provide notice or an opportunity to be heard at any point prior to imposing the referee costs. Third, he argues that the court lacked jurisdiction to order him to pay referee costs because those costs were incurred after he substituted out of the case.
1. The trial court’s violation of section 645.1 does not render the order void
Fletcher argues that the May 29 order is void because section 645.1 specifically prohibits courts from requiring a party’s attorney to pay any share of referee costs. Fletcher is correct that the trial court erred. Section 645.1 states, in relevant part: “the court may order the parties to pay the fees of referees... in any manner determined by the court to be fair and reasonable, including an apportionment of the fees among the parties. For purposes of this section, the term ‘parties’ does not include parties’ counsel.” Under the plain language of this statute, a court is only permitted to order “‘the parties’ – not counsel for the parties – to pay the referee’s costs.” (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 103.)
Although the court exceeded its statutory authority by imposing referee costs on Fletcher, the order is not void. As explained above, an order or judgment is only void if the court lacked fundamental authority over the subject matter or the parties. At the time the court entered its May 29 order, it had fundamental authority to assign a discovery referee, (see § 639, subd. (a) [authorizing court to assign discovery referee without parties’ consent]), and it had fundamental authority over Fletcher, who was then serving as Plaintiff’s counsel. (See § 128, subd. (a)(5) [court has “power” to “control... the conduct of its ministerial officers and all other persons in any manner connected with a judicial proceeding”].) The fact that the court exceeded its statutory powers by imposing referee costs on Fletcher constituted an act in excess of jurisdiction, thereby rendering the order voidable, not void. (Sosnick v. Sosnick (1999) 71 Cal.App.4th 1335, 1340 [“Any act which exceeds the defined power of a court in a given instance, whether that power is defined by constitution, statute, or decisional law, is in excess of the court’s jurisdiction, ” thereby rendering the act voidable].)
Fletcher’s brief specifically concedes that, at the time the May 29 order was entered, the “court had personal jurisdiction to make the May 29, 2009 order against [him.]”
2. The trial court’s failure to provide advance notice or opportunity to be heard does not render the order void
Fletcher next asserts that the May 29 order is void because the trial court failed to provide any advance notice or opportunity to be heard. The record demonstrates that there are two separate instances in which the court failed to provide notice prior to entering orders pertaining to the discovery referee. In April of 2008, Defendants filed a motion for discovery sanctions that was predicated, in part, on Fletcher’s misconduct during a prior deposition. The motion did not request a discovery referee. At the hearing on Defendants’ motion, the court did not indicate that it was considering a discovery referee. However, in its May 12 order, the court, acting sua sponte, assigned a referee to attend all future depositions and required the parties to split the costs. On May 29, the court, again acting sua sponte, amended its prior order by requiring Fletcher to pay Plaintiff’s share of the referee costs. Therefore, the record shows that the court did not provide any notice, or opportunity to be heard, prior to: (1) assigning the discovery referee at cost to the parties, and (2) ordering Fletcher to pay his client’s share of the referee costs.
The court’s failure to provide notice before assigning the discovery referee violated statutorily-mandated procedures. Section 639, subdivision (a) permits the court to assign a discovery referee without the parties’ consent only “upon the written motion of any party, or of its own motion.” The use of the phrase “of its own motion” implies an obligation to provide the parties advance notice and an opportunity to be heard. (St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal.App.3d 82, 86.) The court violated this obligation when it assigned a discovery referee without any advance notice to the parties.
Although the parties do not address the issue, it appears that the trial court also erred by assigning a discovery referee at cost to the parties without making a finding that they had the ability to pay such costs. Section 639, subdivision (d) prohibits a court from appointing a “referee at a cost to the parties” unless it has made a finding “[e]ither... that no party has established an economic inability to pay a pro rata share of the referee’s fee or a finding that one or more parties has established an economic inability to pay a pro rata share of the referee’s fees and that another party has agreed voluntarily to pay that additional share of the referee’s fee.” (§ 639, subd. (d)(6)(A).) The statute further states that a party “proceeding in forma pauperis... shall be deemed by the court to have an economic inability to pay.” (§ 639, subd. (d)(6)(B).) There is no evidence in the record that the court complied with these requirements prior to assigning the discovery referee at cost to the parties. Had it done so, it would have discovered that Ashford was proceeding in forma pauperis and therefore could not be ordered to pay the costs. However, these procedural errors were acts in excess of jurisdiction that rendered the order voidable, rather than void.
The court’s actions also violated well-established due process requirements. One of the most fundamental requirements of the state and federal due process clause is adequate notice, reasonably calculated to inform a party that an adverse action against that party is being considered and to inform the party of the grounds for that adverse action. (See Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314-315; Moore v. California Minerals Products Corp. (1953) 115 Cal.App.2d 834, 836-837 [“[e]lementary principles of due process” require court to provide “opportunity to be heard” before acting “sua sponte” on “decisive” issue]; In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1220 [“Adequate notice that sanctions are being considered is mandated by statute and the due process clauses of the federal... and state... Constitutions”].) As stated by the California Supreme Court, “[t]he general rule is that notice of motion must be given whenever the order sought may affect the rights of an adverse party.” (McDonald v. Severy (1936) 6 Cal.2d 629, 631.)
The court’s initial assignment of a discovery referee at cost to the parties, and its subsequent amendment requiring Fletcher to pay the client’s share of those costs, were rulings that adversely affected the rights of the parties and the rights of Fletcher. Accordingly, due process required advance notice and an opportunity to be heard. The trial court provided neither.
That does not, however, mean that the trial court’s orders are void. On at least two prior occasions, our courts have held that the failure to provide notice prior to entering an adverse order constitutes an act in excess of jurisdiction that renders the orders voidable, not void. In Lee, supra, 168 Cal.App.4th 558, the defendant argued that an order imposing terminating sanctions was void because the court had provided no advance notice that it was considering such severe measures. The appellate court agreed that the trial court’s actions violated both statutory and “due process requirement[s].” (Id. at p. 565.) However, it further held that because the “[trial] court had fundamental jurisdiction over the parties and the subject matter, ” it “acted in excess of its jurisdiction by imposing terminating sanctions without adequate prior notice, ” thereby rendering the order voidable. (Ibid.) In Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86 (E Z Ins.), the appellate court adopted the reasoning of Lee, and held that an order “awarding [a] terminating sanction[ ] on an ex parte basis” was voidable because “the trial court at most failed to follow proper procedure.” (E-Z Ins., supra, at p. 98.)
The facts of this case cannot be meaningfully distinguished from Lee and E-Z Brokerage. At the time the trial court issued its orders of May 12 and May 29, it had fundamental authority over the subject matter and over the parties, but it failed to follow proper procedure when it entered the orders without prior notice or opportunity to be heard. Consistent with our prior holdings, we conclude that the trial court’s errors rendered the orders voidable, not void.
3. Fletcher’s substitution out of the case did not divest the trial court of jurisdiction to enter orders against him
Finally, Fletcher argues that the trial court had no jurisdiction to order him to pay referee costs because those costs were incurred after Fletcher substituted out of the case. At the time the trial court issued its May 29 order requiring Fletcher to pay Plaintiff’s referee costs, the referee had not yet participated in the proceedings. The referee’s first appearance was scheduled to occur at Ashford’s deposition on June 5. The day before the deposition, Fletcher substituted out of the case. The parties and the referee proceeded with the deposition. Two weeks later, the trial court entered an order stating that although Fletcher did not attend the deposition, he was still required to pay half the referee’s costs.
Fletcher argues that although “[t]he court had personal jurisdiction to make the May 29, 2009 order against [him, the court] lost personal jurisdiction to enforce [the order] against [him] upon his substitution out of the case as plaintiff’s attorney without any referee fees having been incurred.” Fletcher has provided no legal argument or citation in support of his conclusory statement that a trial court loses authority over an attorney the moment a notice of substitution is filed. This alone, is sufficient grounds to reject his argument. (People v. O’Neil (2008)165 Cal.App.4th 1351, 1355, fn. 2 [“‘“Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion”’”].)
In any event, we are not persuaded by Fletcher’s contention. Section 128 states that the court “shall have the power” to “control... all... persons in any manner connected with a judicial proceeding before it, ” and “compel obedience to its judgments, orders, and process.” An attorney is “an officer of the court... [and] generally subject to the court’s control as a ‘person... connected with a judicial proceeding....” (Durdines v. Superior Court (1999) 76 Cal.App.4th 247, 256).
Our courts have previously held that section 128 provides the trial court continuing authority to address attorney misconduct even after a case has been dismissed. In Cal Pak Delivery, Inc. v. United Parcel Service (1997) 52 Cal.App.4th 1, the trial court disqualified the plaintiff’s attorney of record after having previously sustained defendant’s demurrer. Plaintiff’s attorney appealed his disqualification, arguing that “once the court granted the demurrer and dismissed the case, there was no ‘judicial proceeding before it, ’ and consequently the court [lacked jurisdiction] to disqualify him.” (Id. at p. 9.) The appellate court disagreed, reasoning that the motion to disqualify was predicated on attorney misconduct that occurred while “the case was [still] pending before the trial court, ” and, as a result, section 128 authorized the court “to... respond to such” conduct. (Ibid.) In support of its holding, the court cited prior decisions recognizing that a trial court retains “continuing jurisdiction to sanction counsel following its dismissal of a frivolous lawsuit.” (Ibid.)
Appellate courts have also held that, under section 128, the trial court retains authority over an attorney even after he or she has been dismissed from a case. In Ligda v. Superior Court (1970) 5 Cal.App.3d 811, an indigent defendant moved to discharge his public defender and represent himself at trial. The trial court granted the request, but ordered the public defender to attend the trial and provide assistance to the defendant if it became necessary to do so. The public defender appealed, arguing that the court exceeded its jurisdiction by entering such an order after the attorney had been dismissed from the case. The appellate court rejected the argument, concluding that, under section 128, the trial court did not lose authority over the public defender the moment he was relieved from the case. The court explained that because the public defender had initially served as the attorney of record, he was connected to the proceedings, and the trial court therefore had authority to order him to “‘assist’ the defendant....” (Id. at pp. 825-826.)
Based on the above authorities and the language of section 128, we conclude that the trial court had continuing authority over Fletcher despite his substitution out of the case. While Fletcher was counsel of record, the trial court ordered him to pay referee costs because of “outrageous” misconduct he committed during the course of the proceedings. Fletcher readily admits that he substituted out of the case to avoid having to comply with the trial court’s order. Permitting an attorney to evade punishment for litigation misconduct by simply substituting out of the case would greatly undermine trial courts’ statutory and inherent powers to control the proceedings before them. (People v. Cox (1991) 53 Cal.3d 618, 700 [“A trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice”].) We therefore conclude that, despite Fletcher’s substitution out of the case, the trial court retained authority to hold him accountable for misconduct that occurred during the course of the proceedings. As a result, the trial court’s orders are not void, which precludes Fletcher from challenging the orders in this appeal.
We further note that Fletcher might have avoided the referee costs if he had acted more diligently in substituting out of the case. As of June 1, Fletcher knew that Defendants planned to take Ashford’s deposition on June 5 and that the referee was scheduled to attend. Despite this knowledge, Fletcher waited until June 4 to file the notice of substitution. Had Fletcher substituted out of the case earlier – and not on the eve of Ashford’s deposition – the trial court might have had time to re-consider whether the referee was still necessary in light of the substitution.
B. The Trial Court Provided Fletcher Sufficient Time to Comply with its Orders
Fletcher also argues that we must reverse the section 177.5 sanctions because the trial court did not give Fletcher sufficient time to comply with the underlying orders. We review the trial court’s decision to impose section 177.5 sanctions for abuse of discretion. (People v. Ward (2009) 173 Cal.App.4th 1518, 1527.)
The trial court issued its order requiring Fletcher to pay discovery sanctions on May 12, 2009. Approximately six weeks later, the court issued its order requiring Fletcher to pay the discovery referee $2,335. The trial court did not impose the section 177.5 sanctions for failure to comply with those two orders until January 29, 2009. Therefore Fletcher had over eight months to pay his discovery sanction and almost seven months to pay the discovery referee.
Fletcher, however, contends that he was only given two days to comply with the orders because they were were stayed during the pendency of his initial appeal. Fletcher appealed both of the orders in September of 2008, and we remitted the case back to the trial court on January 27, 2010. On January 29, the trial court concluded Fletcher had not provided any justification for failing to comply with the orders, and entered the section 177.5 sanctions.
There are two problems with Fletcher’s argument. First, he incorrectly assumes that the enforcement of the trial court orders was stayed during the pendency of his initial appeal. However, section 917.1 states that “[u]nless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for... [m]oney or the payment of money.” (See generally In re Marriage of Thompson (1979) 96 Cal.App.3d 621, 624-625 [“A notice of appeal, however, does not automatically stay enforcement of an order. A stay is a statutory privilege which may only be granted if certain statutory requirements are complied with”].) Both the May 12 order to pay discovery sanctions and the June 30 order requiring him to pay the referee for his services were orders for the payment of money. (See Banks v. Manos (1991) 232 Cal.App.3d 123 [sanction orders have the force and effect of a money judgment].) If Fletcher wanted to avoid mooting his appeal by withholding his sanctions payment, he could have posted a bond. Alternatively, he could have sought a stay from the trial court or from this court. Fletcher did none of those things.
We recognize that section 917.1, subdivision (d) states that no undertaking “shall be required pursuant to this section solely for costs awarded under Chapter 6 (commencing with Section 1021) of Title 14.” Although one of the orders at issue here required Fletcher to pay referee “costs, ” we do not believe the order falls within subdivision (d), which generally applies to the award of “routine costs.” (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1432-1433; Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 801-802 [concluding that prior version of section 917.1 did not apply to award consisting solely of routine costs].) The trial court order was not an “award of costs” incurred by the opposing party. Instead, it was an order requiring Fletcher to pay the referee for his services. Moreover, the order was specifically entered against Fletcher because his own misconduct necessitated the assignment of the referee. Therefore, it was not in the nature of a “routine” cost, but rather was in the nature of a sanction, which has the force and effect of a money judgment.
The second problem with Fletcher’s argument is that, even assuming his initial appeal had stayed the enforcement of trial court’s orders, a significant amount of time passed between the date on which the trial court entered its orders and the date on which Fletcher appealed those orders. Prior to filing his appeal, Fletcher had over four and a half months to pay his discovery sanction and three months to pay the referee costs. After the remittitur was issued, the trial court gave another two days to comply with its orders, but Fletcher again failed to comply without any justification. Only then did the trial court impose section 177.5 sanctions. Ordinarily, we would anticipate a party being afforded more time after remittitur to comply with an order. However, in light of all the circumstances in this case, we see no abuse of discretion in the trial court’s decision to impose section 177.5 sanctions.
DISPOSITION
The trial court’s order that Appellant Freddie Fletcher pay sanctions pursuant to Code of Civil Procedure section 177.5 is affirmed. Respondents are to recover their costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.