Opinion
D052871.
6-25-2009
Not to be Published in Official Reports
Marilyn Krzywiec appeals in propria persona from the default judgment of dissolution entered on March 13, 2008, on the petition for dissolution filed by John Krzywiec.
For ease of reference we will refer to the parties by their first names, and in doing so we intend no disrespect.
Marilyn argues that the dissolution trial should not have gone forward during the pendency of her appeal of the trial courts ruling denying her motion to disqualify Johns attorney. As we will explain, we determine that Marilyns argument lacks merit and accordingly we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
In May 2006 John filed a petition for dissolution and applied for and obtained a temporary restraining order against Marilyn, requesting custody of their two children. The trial court made an order concerning spousal support and awarded John physical custody of the children subject to unsupervised visitation by Marilyn, which was later modified to supervised visitation.
We base our discussion of the factual and procedural background on the facts set forth in our opinion in this case filed March 24, 2009. (In re Marriage of Krzywiec (Mar. 24, 2009, D051169) [nonpub. opn.].)
With trial scheduled to start in less than two months on termination of marital status, custody, spousal support and property division, Marilyn filed a motion to disqualify Johns attorney, contending that prior to his undertaking Johns representation, she had consulted with him as possible counsel to represent her, and she had disclosed confidential information to him relating to her mental and psychological health. The trial court denied the motion to disqualify Johns attorney, and Marilyn filed an appeal. (In re Marriage of Krzywiec, supra, D051169.)
Marilyn requested that the trial court stay the case while the appeal was pending, but the trial court denied the request. Marilyn also filed a petition for a writ of supersedeas with this court on March 10, 2008, asking that we stay the case while the appeal was pending. We denied the petition on March 11, 2008. Marilyn filed a petition for review of our denial of the writ with the California Supreme Court. (In re Marriage of Krzywiec (Mar. 12, 2008, S161745).) The petition for review was denied on April 30, 2008.
Meanwhile, on March 13, 2008, the trial court proceeded to hold a trial on Johns petition for dissolution, which went forward as a default proceeding. After hearing evidence from John, the trial court terminated martial status, made orders concerning support and property division, continued the custody and visitations orders in effect, and entered a judgment of dissolution.
It is not clear from the record that Marilyn has provided why the court went forward with the trial as a default judgment proceeding. Marilyn makes no claim of error on this basis. We note that Marilyn and her attorney were present at the beginning of the trial but elected not to stay to observe the presentation of testimony.
Marilyn filed a notice of appeal on April 11, 2008, seeking "reversal and extinguishment of the default judgment dated March 13, 2008."
John did not file a respondents brief and has not appeared in this appeal.
With respect to Marilyns appeal of the trial courts order denying Marilyns motion to disqualify Johns attorney, we issued a decision affirming the trial courts order on March 24, 2009. (In re Marriage of Krzywiec, supra, D051169 [hereafter, "March 24, 2009 opinion"].) Marilyn filed a petition for review with the California Supreme Court (In re Marriage of Krzywiec (May 4, 2009, S172595)), and that petition for review was denied on June 10, 2009.
II
DISCUSSION
Marilyns sole argument on appeal is that the court should not have gone forward with the trial on Johns petition for dissolution during the pendency of her appeal of the order denying the motion to disqualify Johns attorney. In support of her argument, Marilyn relies on Code of Civil Procedure section 916, which states that, with certain exceptions, "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order." (Code. Civ. Proc., § 916, subd. (a).) We reject Marilyns argument for two reasons.
First, case law establishes that "an appeal from an order regarding disqualification of counsel is `unquestionably collateral to the merits of the case," and thus despite Code of Civil Procedure section 916, such an appeal "does not automatically stay the trial proceedings relating to the merits." (Reed v. Superior Court (2001) 92 Cal.App.4th 448, 453.) Accordingly, contrary to Marilyns argument, the trial court was not required to stay the case during the pendency of Marilyns appeal of the motion to disqualify Johns attorney.
Second, even if there was merit to Marilyns contention, her appeal fails because she has not established any prejudice resulting from the fact that the case went forward despite the pendency of her appeal of the order denying the motion to disqualify Johns attorney.
A judgment will not be reversed unless the appellant establishes prejudice and a miscarriage of justice. Code of Civil Procedure section 475 provides in part: "No judgment, decision, or decree shall be reversed or affected by reason of any error . . . unless it shall appear from the record that such error . . . was prejudicial, and also that by reason of such error . . ., the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error . . . had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown." Further, our Constitution provides that "[n]o judgment shall be set aside . . . in any cause . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.)
As the appellant, Marilyn has the burden to show that she was prejudiced by the error that she claims on appeal. (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 347 ["an appellant has the burden to show not only that the trial court erred but also that the error was prejudicial"].) She "bears the duty of spelling out in [her] brief exactly how the error caused a miscarriage of justice." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)
Here, because we determined in the now-final March 24, 2009 opinion that Marilyns motion to disqualify Johns attorney was not meritorious, Marilyn ultimately suffered no prejudice in having the case proceed while we considered the issue of disqualification. The case went forward during the pendency of the appeal without a disqualification of Johns attorney, just as it would have done had the trial court waited for Marilyns appeal to be resolved before proceeding.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
BENKE, Acting P. J.
MCINTYRE, J.