Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Original proceedings; petition for a writ of mandate to challenge orders of the Superior Court of Orange County No. 00D004005, Nancy A. Pollard, Judge, and David S. Weinberg, Temporary Judge (pursuant to Cal. Const., art. VI, § 21). Petition granted. Motion to dismiss appeal. Denied.
Law Offices of Albert M. Graham, Jr. & Associates, Albert M. Graham, Jr.; Weisenberg & Nelson, John W. Nelson; and Alan S. Yockelson for Petitioner.
No appearance for Respondent.
Minyard Morris, Michael A. Morris; Law Offices of Robert H. Pourvali and Robert H. Pourvali for Real Party in Interest Sergio D. Bechara.
No appearance for Real Party in Interest Sheryl L. Bechara.
OPINION
FYBEL, J.
INTRODUCTION
Attorney Albert M. Graham, Jr., represented Sheryl L. Bechara in a marital dissolution action. After being substituted out as counsel, Graham filed a motion under In re Marriage of Borson (1974) 37 Cal.App.3d 632 (Borson), asking the superior court to order Sheryl Bechara’s former husband, Sergio D. Bechara, to pay Graham’s attorney fees. The court granted the motion, but reserved the issue of the amount of fees for a later hearing.
We will refer to Sheryl Bechara and Sergio Bechara by their first names to avoid confusion; we intend no disrespect.
Sheryl and Sergio stipulated to have a private judge resolve the disputes remaining in their dissolution proceeding. Graham was not present at the hearing at which the private judge dismissed Graham’s motion for Borson fees. Graham appeals from the private judge’s decision on submitted issues and a notice of ruling prepared by Sergio’s counsel.
Although neither of the documents from which Graham purports to appeal is an appealable order, we exercise our discretion to treat the appeal as a petition for a writ of mandate, and grant the petition.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Graham represented Sheryl in a marital dissolution action beginning in April 2004. Sometime in 2005, Graham substituted out as Sheryl’s counsel of record; the appellate record does not show exactly when this occurred.
On August 8, 2005, Graham filed a motion seeking attorney fees from Sergio, pursuant to Borson. As to the Borson motion, the superior court ruled: “1. The ‘Borson’ Motion filed by attorney Albert M. Graham, Jr. is granted. Attorney Graham shall be provided notice of future hearings. [¶] 2. The court makes no ruling as to whether any fees and costs, or how much, if any, will be ordered. The court trails this issue to October 5, 2005 at 9:00 a.m. in Department C65.”
On May 10, 2007, a stipulation between Sheryl and Sergio was filed, pursuant to article VI, section 21 of the California Constitution and California Rules of Court former rule 243.30, assigning the case to retired Commissioner David S. Weinberg “for all purposes, including but not limited to, all pre-trial motions, Orders To Show Cause, trial of the matter and post trial motions.” All parties agree Graham was not given notice that Commissioner Weinberg would hear the matter.
After numerous continuances, a hearing on the open issues in Sheryl and Sergio’s dissolution action – namely, support and custody – was held in October 2007 before Commissioner Weinberg. Graham did not appear at the hearing, and Commissioner Weinberg dismissed Graham’s Borson motion with prejudice.
On November 15, 2007, Commissioner Weinberg provided a decision on submitted issues to counsel for Sheryl and Sergio. Graham’s Borson motion was not addressed in the decision.
On November 27, 2007, Sergio’s counsel filed a notice of ruling with the court regarding Commissioner Weinberg’s dismissal of Graham’s Borson motion with prejudice. On November 29, Graham filed a motion with the superior court to restore his Borson motion to the court’s calendar. The motion was brought under Code of Civil Procedure section 473, subdivision (b), and argued that Graham had not been given notice that his Borson motion would be heard by Commissioner Weinberg in October 2007. The motion to restore was heard by Judge Nancy Pollard on January 18, 2008. At that time, the superior court determined that Commissioner Weinberg had jurisdiction over Graham’s motion, transferred the motion to him for a hearing, and directed counsel to meet and confer to agree on a date for the hearing on the motion. In response to our request for supplemental briefing, Graham admitted that no party ever sought further consideration of the motion to restore before Commissioner Weinberg.
On January 22, 2008, Graham filed a notice of appeal from Commissioner Weinberg’s November 15, 2007 decision on submitted issues, and the November 27, 2007 notice of ruling.
A notice of completion of assignment of a private temporary judge was filed August 14, 2008. The parties and Commissioner Weinberg agreed the case was completed, as it related to Commissioner Weinberg’s appointment and the case should be remanded to the superior court for any further proceedings.
On our own motion, we augment the record on appeal with the notice of completion of assignment of private temporary judge, filed in the superior court file in Bechara v. Bechara (Super. Ct. Orange County, No. 00D04005). (Cal. Rules of Court, rule 8.155(a)(1)(A).)
DISCUSSION
I.
APPEALABILITY
We invited the parties to submit supplemental briefs addressing whether the November 15, 2007 decision on submitted issues and the November 27, 2007 notice of ruling were appealable orders. As noted ante, the November 15 decision on submitted issues did not address the issue of Graham’s Borson motion. (The decision does consider Sheryl’s request for attorney fees, but that request did not cover the same time period of Graham’s Borson motion.) We need not determine here whether the decision on submitted issues would be appealable by Sheryl or Sergio; we need only conclude that Graham was not aggrieved by the decision because his rights or interests were not injuriously affected by it. (Estate of Goulet (1995) 10 Cal.4th 1074, 1079, fn. 3.)
The November 27 notice of ruling is not appealable. A notice of ruling is not included in Code of Civil Procedure section 904.1 as an appealable order. (See Engel v. Worthington (1997) 60 Cal.App.4th 628, 630-631.) In fact, a notice of ruling is not even an order. A judge’s direction that is never reduced to writing and signed by the judge or entered in the court’s minutes is not an order. (Code Civ. Proc., § 1003; In re Marcus (2006) 138 Cal.App.4th 1009, 1015-1016; Shpiller v. Harry C’s Redlands (1993) 13 Cal.App.4th 1177, 1179; Ketscher v. Superior Court (1970) 9 Cal.App.3d 601, 604-605.) The notice of ruling was not signed by Commissioner Weinberg or entered in the court’s minutes. Therefore, it does not meet the basic requirements of an order.
All we have in this case is an oral ruling by Commissioner Weinberg, and a notice of ruling prepared independently by counsel for one of the parties, and not at the request or order of the commissioner. There was no order from which to appeal.
Graham argues this court should exercise its discretion to treat his appeal as a petition for a writ of mandate “because the matter would otherwise escape appellate review.” We agree. The merits of the issue have been fully briefed by the parties, and this is a case in which the failure to consider the issue at this juncture would be a dereliction of our duties as a reviewing court. We therefore exercise our discretion to treat the appeal as a petition for a writ of mandate, in the interests of justice and judicial economy. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 744-747; Connell v. Superior Court (1997) 59 Cal.App.4th 382, 393-394.)
II.
MOTION TO DISMISS
Sergio moved to dismiss the appeal on the ground Graham lacks standing to appeal. Sergio argues Graham is not an aggrieved party because the attorney fees awarded pursuant to a Borson motion belong to the client, not the attorney. By extension, Sergio argues, only the client is harmed by the denial of a Borson motion, and therefore the client is the aggrieved party who has a right to appeal.
In In re Marriage of Erickson & Simpson (2006) 141 Cal.App.4th 707, the appellate court concluded a trial court had jurisdiction to order a husband to pay attorney fees directly to his former wife’s attorney, even though the wife discharged her attorney before the motion was ruled upon. “The record shows that after the decision was made that Phillips would no longer be Erickson’s counsel, Erickson expressly indicated that she wanted Phillips to file and pursue a Borson motion on her behalf requesting that Simpson pay Phillips the fees she owed the firm. Phillips filed the motion while still attorney of record, and pursued the motion as requested by Erickson. Contrary to Simpson’s assertion, Erickson’s signing of a formal substitution of attorney form does not suggest that she was withdrawing her express consent to Phillips’s fee request. The trial court had jurisdiction to make the order requiring Simpson to pay fees to Phillips.” (Id. at p. 714.)
Eight calendar days before oral argument, Sergio submitted an application to file a supplemental letter brief attaching a declaration signed by Sheryl. The declaration reads in relevant part as follows: “I Sheryl Bechara . . . do hereby declare that I have not authorized attorney Albert Graham to file an appeal of the Borson motion on my behalf, which was brought forth before Commissioner and denied. Any pursuit of this pending appeal is occurring without my consent.” We granted Sergio’s application, as well as an application by Graham to file his own supplemental letter brief in response.
On May 8, 2008, Graham’s counsel submitted a letter to this court, reading in relevant part as follows: “This letter confirms that I have spoken with Attorney Thomas Stabile, counsel for Sheryl Bechara, and he has indicated that he will not be filing a brief on behalf of his client in the above-referenced appeal.” This letter was served on current counsel for both Sheryl and Sergio. Clearly, at least as of May 2008, Sheryl had not revoked her consent to Graham’s pursuit of this appeal. Sheryl was also served with Graham’s notice of appeal on January 22, 2008, Sergio’s motion to dismiss the appeal on April 4, and Graham’s opening brief on June 16. Each of these documents advised Sheryl of the nature of Graham’s claims on appeal, yet not until immediately before the date of oral argument in this matter did she step forward to challenge Graham’s ability to pursue his claims.
In other cases, the appellate court has permitted an attorney to appeal from a Borson motion order, without directly addressing the issue whether the attorney is an aggrieved party. (See In re Marriage of Sprague & Spiegel-Sprague (2003) 105 Cal.App.4th 215 [husband’s former attorney appealed from family court order determining award of Borson attorney fees had been discharged in bankruptcy]; In re Marriage of Kelso (1998) 67 Cal.App.4th 374, 376-377 [wife’s former attorney appealed from order refusing to appoint a neutral judge to consider Borson motion].)
There may well be situations in which a former client’s withdrawal of his or her consent for the former attorney to file and pursue a Borson motion may require us to dismiss the attorney’s appeal of an order resolving the motion. Based on the chronology and the complete absence of reasons for the claimed withdrawal of consent, as set forth ante,we conclude this is not such a case. We therefore deny Sergio’s motion to dismiss Graham’s appeal.
III.
MERITS
Graham argues he was denied due process by the failure to advise him that the Borson motion would be considered by Commissioner Weinberg at the October 2007 hearing. None of the cases cited by Graham, however, supports an argument that a nonparty to litigation has due process rights which can be violated. Of particular note, in Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357, the Supreme Court held that in family law cases, the court must provide “‘a full and fair opportunity to the parties’” to present their cases. (Italics added.) The court’s September 16, 2005 order granting Graham’s Borson motion and ordering that Graham was to be provided notice of future hearings did not convert him into a party. However, the language of the court’s original order granting the Borson motion was perfectly clear: “Attorney Graham shall be provided notice of further hearings.” (Italics added.) This order bound the parties and was appropriate under the circumstances.
On October 18, 2005, Sergio’s counsel served on Graham and Sheryl’s current counsel a notice continuing “the Order to Show Cause regarding financial issues, previously set for October 5, 2005 . . . to February 16, 2006 . . . .”
On May 25, 2007, Sergio filed an amended responsive declaration in connection with the order to show cause scheduled for hearing on June 7 and 8, 2007, at a private location. Among the topics Sergio disagreed with was the topic of attorney fees and costs. Sergio stated he would agree to the following order: “[Sheryl] pay [Sergio]’s fees and costs in an amount according to proof per Family Code § 271. In the alternative, each party pay his/her own fees and costs.” Sergio’s amended responsive declaration contains no reference to Family Code section 2030, to Borson, or to Graham’s pending motion. The appellate record also contains notices continuing “[Sergio]’s Motions previously set for June 15, 2007 . . . to August 10, 2007,” and continuing the “Order to Show [Cause] previously set for August 10, 2007 . . . to August 24, 2007 at 9:00 a.m. Therefore, the dates currently set for hearing on the Order to Show Cause in this matter are July 27, 2007 and August 24, 2007 at the hour of 9:00 a.m. at Jilio Veritext located at 3090 Bristol Street, Suite 190, Costa Mesa, California.” (Bold omitted.)
Nothing in the appellate record shows how or why the matter was continued from February 2006 to June 2007.
On October 19, 2007, Commissioner Weinberg asked Sergio and Sheryl’s respective counsel if Graham had been given notice of that day’s hearing. Sergio’s counsel admitted he had not given Graham or Graham’s counsel notice of anything other than “the request for judicial notice, which noted today’s trial at 1:00.” Sheryl’s counsel advised Commissioner Weinberg he “saw Mr. Nelson [Graham’s counsel of record] in court in Santa Ana and advised him of the continuance from the last time to today.”
At the continuation of the hearing on October 23, 2007, the following colloquy occurred between counsel for Sergio and Sheryl, and Commissioner Weinberg:
“The Court: . . . There was a Borson motion filed on behalf of the petitioner’s predecessor counsel, Mr. Graham. It’s my understanding that both counsel have given Mr. Graham’s office and his representative, which is Mr. Nelson, notice of the trial dates in this matter, including the trial dates we had last week; is that correct?
“Mr. Stabile [Sheryl’s counsel]: Yes.
“Mr. Morris [Sergio’s counsel]: Yes.
“The Court: This court has not heard from either Mr. Graham or his representative, Mr. Nelson, if in fact Mr. Nelson was representing him or whether or not he was just making an appearance as a courtesy for a fellow colleague. With respect to the Borson motion, the court has not heard from anybody.
“Mr. Morris: I have not provided any notice to Mr. Nelson. I’ve only provided notice of the lodgements which included the hearing dates to Mr. Graham, none to Mr. Nelson, although I don’t think I’m required to.
“The Court: Right. Based upon those representations and having heard from nobody with respect to the Borson motion, the Borson motion is dismissed.
“Mr. Morris: Is that with prejudice?
“The Court: It would have to be.”
It does not appear that Commissioner Weinberg had all relevant information at the time he dismissed Graham’s motion. Sheryl’s and Sergio’s counsel told the commissioner that Graham had been given notice of the hearing. The notices served on Graham, however, did not specify that the issue of need-based attorney fees under Family Code section 2030 et seq. would be decided. As can be seen ante, the notices were vague and confusing as to what issues were to be decided. Also, there is no clear statement in the notices that connects the original date on which the Borson motion was to be decided, in October 2005, with the hearing before Commissioner Weinberg in October 2007.
Further, Graham never had notice of Commissioner Weinberg’s appointment, so he had no reason to suspect a hearing scheduled before the commissioner would deal with his motion. Sergio argues that Graham should have exercised diligence in figuring out what the various notices of continuance referred to, and also argues that Graham should have discerned that he would only get a notice if it related to the Borson motion. However, the superior court’s original order was clear – Graham shall be provided notice of future hearings. Any arguable notice given to Graham was not sufficient, and reversal of the dismissal of his Borson motion with prejudice is required.
We invited the parties to submit supplemental briefs addressing, inter alia, the following issue: “Did any party seek further consideration of the motion to restore the Borson motion to calendar by Commissioner Weinberg?” Both Sergio and Graham submitted supplemental briefs, and both stated unequivocally that no party had sought further consideration of the motion by Commissioner Weinberg. We have, however, discovered in the superior court file a notice of hearing filed by Sergio’s counsel on February 13, 2008, and served on Graham’s then-counsel, noticing Graham’s motion before Commissioner Weinberg on March 7, 2008. We cannot determine whether this hearing ever occurred, much less what was decided. This situation is yet another example of the rather significant gaps in the appellate record.
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue directing the superior court to consider the merits of Graham’s Borson motion. The motion shall be heard by Judge Claudia Silbar, who originally granted the motion. Because all other issues between Sergio and Sheryl have been resolved, and the appointment of Commissioner Weinberg has been completed, there is no reason for Graham’s Borson motion to be considered by any judge other than Judge Silbar. Petitioner to recover costs incurred in this proceeding.
WE CONCUR: SILLS, P. J., ARONSON, J.