Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SFL981064
Haerle, Acting P.J.
I. INTRODUCTION
This is the fifth appeal in this, now, nine-year old marital dissolution case. In it, the attorney for one of the parties (the former wife, respondent Ives) purports to appeal from an order of the trial judge sanctioning that attorney (albeit then staying imposition of the sanction) $750 for bringing two motions to disqualify that judge––in each case, the third time the same motion had been filed. At least nominally, neither of the former spouses are parties to the appeal.
We dismiss the appeal because it is from a non-appealable order and further sanction appellant an additional $1,000 for (1) filing such an appeal and (2) several other reasons to be noted below.
II. FACTUAL AND PROCEDURAL BACKGROUND
According to an entry on page 1 of a 63-page (as of December 2006) Sonoma County Superior Court docket sheet, this dissolution action was filed by petitioner Davis, the former husband, in March 1998. As recited in a prior decision we filed in this case in November 2006 (Nov. 30, 2006, A112432), the marriage was dissolved a year later when the parties agreed to share joint legal custody of their two children (one of whom was then four years old and the other two years old), and also agreed that Ives would have primary physical custody of them. Apparently around that same point in time, Ives had moved from New Hampshire to Tennessee, where she now lives, while Davis, a general building contractor, apparently still resides in Sonoma County. But also around this point in time, the parties started battling endlessly regarding the custody, support, visitation, etc., of their children.
At least by October 2001, the trial court recognized that the volatile relationship of the parties––and perhaps also of their attorneys––mandated the employment of a special master. Such a person, one Randy Rand, Ed.D., of Mill Valley, Marin County, was so employed and apparently continues to be, although clearly now much to the displeasure of Ives. In our 2006 opinion, we affirmed the trial court’s initial appointment of Dr. Rand, and dismissed Ives’s two purported appeals from orders denying her motions to disqualify him.
That opinion covered three of the five appeals noted in the opening sentence of this opinion. The fourth was by Ives from the trial court’s orders modifying visitation arrangements and requiring her to pay Dr. Rand’s fees.
But before either this appeal or the ones referred to in footnote 1, below, were filed, Ives and appellant developed a very hostile view of the trial judge, the Honorable James G. Bertoli. Specifically, because of Judge Bertoli’s denial of Ives’s motion to remove Dr. Rand as special master and various other orders adverse to her, on October 12, 2004, Ives filed her first of a total of six motions to disqualify Judge Bertoli, this one a peremptory challenge under Code of Civil Procedure section 170.6. It was denied a week later.
The record before us strongly suggests that this hostility started when appellant joined Ives’s group of counsel.
Judge Bertoli, obviously to his subsequent distress, inherited this case from two prior trial judges, the Honorable Lawrence Antolini and the Honorable Arnold Rosenfeld.
This date is erroneously stated to be “October 12, 2006” in both appellant’s original opening brief and in his (supposedly) corrected opening brief filed June 20, 2007.
All statutory references are to the Code of Civil Procedure, unless otherwise noted.
The following month, Ives served and filed a motion to disqualify the judge under section 170.1, subdivision (a)(6)(C) (restated in § 170.1, subds. (a)(6)(A)(iii) and (a)(6)(B) without substantive change). This motion was also denied.
This change in the numeration of the relevant statute, which was both enacted and became effective in mid-2005, seems to have eluded appellant, who repeatedly cites the statute by its 2004 numeration.
In 2005, Ives again filed––and again unsuccessfully––a motion to disqualify Dr. Rand as special master. Following that, she again moved to disqualify Judge Bertoli under both former section 170.1, subdivision (a)(6)(C), and section 170.6; both of these motions were again denied.
In the summer of 2006, things heated up yet again, this time apparently triggered by Dr. Rand’s request for court orders requiring the parties to pay him certain fees (with extra fees being requested of the very litigious Ives) and also modifying visitation privileges. All of Dr. Rand’s proposed orders were approved by Judge Bertoli––some of them, at least per appellant, without the allowance of sufficient time for Ives to object to them. Then, for the third time, Ives moved to disqualify Judge Bertoli under the same two code sections. Judge Bertoli responded by, in the same order, both denying the peremptory challenge, i.e., the challenge under section 170.6, and issuing an order to show cause as to why both Ives and her counsel, appellant, should not be sanctioned for filing it. A few days later, he also denied Ives’s third section 170.1 motion.
On July 18, 2006, Ives filed opposition to Judge Bertoli’s order to show cause. The matter was argued before Judge Bertoli on August 8, 2006. At the conclusion of the argument, the court ordered sanctions in the amount of $750 imposed on both Ives and appellant, her counsel, but then stayed the enforcement of that order “unless there is further conduct that this Court warrants as sanctionable conduct.” Appellant, on behalf of himself only, filed a timely notice of appeal from that sanctions order.
III. DISCUSSION
This appeal must be dismissed because it is from a non-appealable order. Section 904.1, subdivision (b), provides as follows: “Sanction orders or judgments of five thousand dollars ($5,000) or less against a party or an attorney for a party may be reviewed on an appeal by that party after entry of final judgment in the main action, or, at the discretion of the court of appeal, may be reviewed upon petition for an extraordinary writ.”
Originally miscited several times by appellant as “section 904.1(13)(b)” and also originally misquoted by him.
There are at least three interrelated reasons why this and closely related statutes make the order at issue non-appealable: (1) appellant lacks standing to appeal, because the statute requires that, to be appealable under it, the sanction order must require payment of the sanction, (2) the trial court’s stay of the order means appellant is appealing from a non-appealable post-judgment order under either or both of sections 904.1, subdivision (b), or 904.1, subdivision (a)(2), and (3) the issue appellant raises is moot.
Regarding the first point, section 904.1, subdivision (b), necessarily means that the sanction must be payable in order to qualify for any appeal under it. This is made manifest by the language of the statute forming the other side of the equation, i.e., specifying when sanctions ordered are appealable, i.e., section 904.1, subdivision (a)(12), which provides that an appeal may be taken “from an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).” (§ 904.1, subd. (a)(12), emphasis supplied.)
Although the word “payment” does not appear in the current version of section 904.1, subdivision (b), that term appeared in the prior version of this statute which precluded appeals from “a superior court judgment directing payment of monetary sanctions by a party or an attorney for a party only if the amount exceeds seven hundred and fifty dollars ($750).” (Former § 904.1, subd. (k); Stats. 1989, ch. 1416, § 25.) The change in wording of the statute in 1993 was obviously intended, and intended only, to (1) make clear that it covered “orders” as well as “judgments” and (2) enlarge the figure of unappealable sanctions from $750 to $5,000. We have carefully examined the legislative history of the 1993 amendment (see legislative history of Assem. Bill 58, which became Stats. 1993, ch. 456, especially Assem. Com. on Judiciary Rep. on Assem. Bill 58 (May 19, 1993) p. 4; Governor’s Office of Planning and Research, Enrolled Bill Report on Assem. Bill 58 (August 19, 1993) p. 1, and Judicial Council of California, 1994 Annual Report, p. 62) and find nothing therein suggesting even slightly any intention to delete the requirement that, to be appealable, a sanction order must require payment of the sanctions. This one, as appellant concedes, does not.
Secondly, this purported appeal is from a non-appealable post-judgment order under either sections 904.1, subdivision (a)(2), or 904.1, subdivision (b).
As noted above, according to the 63-page docket sheet from December 2006, a “status only” judgment dissolving the marriage between the parties was entered in March 1999. According to that document, what appears to be a final judgment, a lengthy “judicially supervised settlement” agreement executed by the parties and their counsel, was approved and ordered filed by Judge Bertoli in February 2003. That court-approved settlement covers the division of community property, spousal support, child support, etc. Although not formally so labeled, it thus appears to be a “final judgment” for purposes of sections 904.1. Therefore, Judge Bertoli’s 2006 orders, including the one being appealed from here, are post-judgment orders.
This document was not designated by the parties and was, therefore, not part of the clerk’s transcript. On our own motion, however, we order the record augmented to include this document. (Cal Rules of Court, rule 8.155(a)(1)(A).)
Our Supreme Court summarized the pertinent law on the subject of the appealability of post-judgment orders in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-656 (Lakin). It there held that a post-judgment order denyingan award of attorney fees under section 2033, subdivision (o) was appealable because it satisfied three requirements: it affected “the judgment or relates to its enforcement because it determines the rights and liabilities of the parties arising from the judgment, is not preliminary to later proceedings, and will not become subject to appeal after some future judgment.” (Lakin at p. 656.)
Two of our sister courts have applied these Lakin principles to post-judgment orders in marital dissolution proceedings, and both have done so by dismissing the purported appeals. Thus, in In re Marriage of Levine (1994) 28 Cal.App.4th 585, 587-589 (Levine), a division of the Second District dismissed an appeal from a post-judgment order relating to the outcome of the sale of various community property assets. After citing various and sundry pre-Lakin authority and then summarizing the holding in that case, the court held that Lakin meant that “an essential element of an appealable post-judgment order is that the order be one which is not preliminary to later proceedings and will not become subject to an appeal after some future judgment.” (Levine, supra, at p. 589.)
More recently, in In re Marriage of Ellis (2002) 101 Cal.App.4th 400 (Ellis), the former husband appealed from a post-judgment order finding a “community property interest in a medical subsidy available to [him] upon his subsequent retirement.” (Id. at p. 402.) The court of appeal dismissed his appeal because, under the principles stated in Lakin and Levine, that the purported appeal was only “interlocutory” because the court order did not actually “divide the medical subsidy.” (Ellis at p. 403.)
We find these principles also applicable here inasmuch as (1) no sanction was actually levied on appellant, (2) Judge Bertoli, both verbally at the August 8, 2006, hearing, and in his order thereafter expressly made enforcement of his order contingent on the future behavior of both respondent Ives and appellant, and (3) in a case then constituting ––to quote Judge Bertoli’s accurate description of it––“a colossal waste of resources”, there were and are still many issues before that court relating to the matters which triggered the sanction order, i.e., the payment of Dr. Rand’s fees, the effectiveness of his orders regarding visitation, etc. As a consequence, the sanction order against appellant cannot be regarded as anything but “interlocutory.”
The third reason why the order in question is non-appealable is, in some respects, simply a restatement of the foregoing: the stay of any payment makes the issue moot. “A case is moot when the decision of the reviewing court ‘can have no practical impact or provide the parties effectual relief. [Citation.]’ [Citation.] ‘When no effective relief can be granted, an appeal is moot and will be dismissed.’” (MHC Operating Ltd. Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214.) And, even more specifically, an appeal in litigation involving a debt becomes automatically moot when the debt is discharged. (See Hurley v. Bredehorn (1996) 44 Cal.App.4th 1700, 1705-1706; see generally, Eisenberg, et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2004) ¶ 5:21 et seq.) Appellant argues that, because his professional reputation might be impacted by the imposition of the sanction, payable or not, the matter is not moot. But the mootness of an issue is a matter of law for a court to decide, inasmuch as it is a court’s “‘“‘duty . . . to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions. . . .’”’” (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541, emphasis added.)
For all these reasons, this appeal must be and hereby is dismissed. Pursuant to rule 8.276(e) of the California Rules of Court, appellant is sanctioned $1,000 by this court for (1) bringing an appeal from an order which, for all the reasons just stated, is unappealable and, in the terminology of the real world, utterly trivial, and (2) doing so in a very unprofessional manner, specifically via a brief which miscites at least two provisions of the Code of Civil Procedure, misquotes one of them, and contains numerous typographical errors, and (3) arguing, in the merits portion of his brief, that Judge Bertoli had “no jurisdiction” to impose the appealed-from sanctions because he should have disqualified himself pursuant to the various motions filed by Ives, thus totally ignoring the provisions of section 170.3, subdivision (d), which require review of the denial of a disqualification motion to be via a writ petition.
Some of these errors of citation and dates were corrected by appellant by an “amended opening brief” filed June 20, 2007. But not all; that brief still states that the date of his first peremptory challenge to Judge Bertoli was “October 12, 2006”, when in fact, as the clerk’s transcript he has provided this court shows, it was in fact filed on October 12, 2004. Similarly, two pages later, appellant again miscites the relevant section for such a motion as “107.6” rather than, of course, 170.6.
IV. DISPOSITION
The appeal is dismissed and, for the reasons stated above, appellant is sanctioned $1,000 payable to the clerk of this court.
We concur: Lambden, J., Richman, J.