Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 01CC14684, Clay M. Smith, Judge.
Arnold A. McMahon, in pro per., for Defendant and Appellant.
Elizabeth McMahon; and Philip A. Putman for Defendant and Appellant Elizabeth McMahon.
Peters & Freedman, Michael G. Kim and Mickey Jew for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendants Arnold A. McMahon (Arnold) and Elizabeth McMahon (Elizabeth) (collectively, the McMahons) appeal from an order granting a writ of execution in favor of plaintiff Palacio Del Mar Homeowners Association (Palacio). The appeal is moot. The writ of execution has expired. And the sole basis for the appeal — the court’s lack of jurisdiction to sign the written order granting the writ of execution pending its determination of Elizabeth’s motion to change venue — no longer applies because the court has denied her venue motion.
We use the McMahons’ first names for clarity, with no disrespect.
We dismiss the moot appeal and impose sanctions against the McMahons and Elizabeth’s counsel, Philip A. Putman, for maintaining a frivolous appeal.
FACTS
The dispute between the McMahons and Palacio has led to one appeal in a prior case and three appeals in this case. It has also generated litigation between the McMahons’ and Palacio’s counsel, resulting in two more appeals. We summarize this sordid history in the margin and turn directly to our prior opinion imposing sanctions against Arnold. We do so because we may consider whether prior sanctions have had “any discernible effect” in deterring Arnold from taking frivolous appeals. (Papadakis v. Zelis (1992) 8 Cal.App.4th 1146, 1150 (Papadakis).)
Home improvement has never gone so wrong. In Palacio Del Mar Homeowners Assn. Inc. v. McMahon (Mar. 17, 2004, G028742 [nonpub. opn.]) (Palacio I), we noted the McMahons installed a new driveway, a built-in barbeque, and other hardscape and landscape features to their home without obtaining approval from Palacio’s architectural review committee. We affirmed a judgment granting injunctive and declaratory relief to Palacio and awarding it approximately $134,000 in attorney fees and costs. (Ibid.)
In Palacio III, supra, G036287, we affirmed an order denying Arnold’s anti-SLAPP motion to strike Palacio’s complaint in this case and awarding sanctions to Palacio. We further imposed our own sanctions against Arnold for taking a frivolous appeal. (Ibid.) We noted, “this appeal is as frivolous as was the underlying anti-SLAPP motion. It evidences the delaying tactics tat are the hallmark of McMahon’s litigation strategy. It is without objective merit as to any aspect of the court’s order . . . . Sanctions were appropriate in the trial court, and they are equally warranted on appeal.” (Id. at p. 4.)
On remand, the trial court awarded just over $40,000 to Palacio for their reasonable attorney fees and costs incurred in defending against Arnold’s frivolous Palacio III appeal. In Palacio IV, supra, G038622, we affirmed the attorney fee order.
We turn to this appeal. While Palacio IV was pending, Palacio filed a motion to issue a writ of execution to enforce its attorney fee award against Arnold. (§ 699.510.) Arnold opposed the motion on the sole ground that the attorney fee order prepared by Palacio’s counsel cited the anti-SLAPP statute as section 426.16 instead of section 425.16 — he contended the order was thus “based on a non-existent statute.” At an August 3, 2007 hearing, the court granted Palacio’s motion.
“[A] writ of execution shall be issued by the clerk of the court upon application of the judgment creditor . . . .” (Code Civ. Proc., § 699.510, subd. (a).) All further statutory references are to the Code of Civil Procedure unless otherwise stated. Palacio states it filed a motion because the clerk of the court denied their writ application.
Arnold filed an ex parte application for an order recalling the writ of execution and staying enforcement of the attorney fee award pending his appeal in Palacio IV. The court denied the application.
Elizabeth then filed a motion to change venue on August 20, 2007, claiming she could not have a fair trial in Orange County. (§ 397, subd. (b).) The next day — August 21, 2007 — the court signed a written order granting Palacio’s motion to issue a writ of execution. The clerk of the court issued the writ of execution on August 31, 2007.
The court denied Elizabeth’s motion to change venue and, on the same day, the McMahons appealed from the order granting the motion to issue a writ of execution. They contended the filing of the venue motion deprived the court of jurisdiction to sign the written order issuing the writ of execution.
After the McMahons filed their notice of appeal, the levying officer received two employer returns. The first return indicated Arnold McMahon was no longer employed at that business. The second return indicated another withholding order had priority over the writ. The writ of execution expired by operation of law on February 27, 2008, 180 days after its issuance on August 31, 2007. (§ 699.530, subd. (b) [“The levying officer may not levy upon any property under the writ after the expiration of 180 days from the date the writ was issued”]; § 699.560, subd. (a)(4) [levying officer must return the writ “after the expiration of the 180-day period” if no levy has taken place].) On the same day, the levying officer returned the writ to the court, unsatisfied.
We grant Palacio’s unopposed request to take judicial notice of the employer’s returns and the levying officer’s return. We also grant Palacio’s request to take judicial notice of our own prior opinion.
The McMahons filed their opening appellate brief on April 8, 2008. Palacio’s counsel sent them a letter, asking them to dismiss the appeal because the writ’s expiration rendered it moot. The McMahons did not do so. On May 7, 2008, however, Mr. Putman filed a “notice of withdrawal” as counsel for Elizabeth in this appeal. We struck the notice because it failed to comply with the rules for withdrawing as counsel. (Cal. Rules of Court, rule 8.36 (c).)
The next day, Palacio filed its respondent’s brief and a declaration from its counsel. It contended the appeal was moot and requested sanctions in the amount of $2,700, approximating its attorney fees incurred in this appeal. Two weeks later, Elizabeth and Mr. Putman filed a substitution of counsel releasing Mr. Putman as counsel and stating Elizabeth would appear in pro per.
The proper procedure for requesting sanctions on appeal is to file and serve a motion pursuant to California Rules of Court, rule 8.276 (Rule 8.276). (Kajima Engineering and Construction, Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402.) Despite Palacio’s procedural misstep, we may impose sanctions on our own motion. (Rule 8.276(a); In re Marriage of Schnabel (1994) 30 Cal.App.4th 747, 753 (Schnabel).) We informed the parties in writing that we were considering imposing sanctions against the McMahons and Mr. Putman. (Rule 8.276(c); Schnabel, supra, 30 Cal.App.4th at p. 755; In re Marriage of Economou (1990) 223 Cal.App.3d 97, 107 (Economou).) We invited briefing and oral argument from the parties and Mr. Putman on this issue. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654 (Flaherty); Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293, 1300-1301 (Melissa W.).) This opinion constitutes our written statement of reasons for imposing sanctions. (Flaherty, supra, 31 Cal.3d at p. 654; Melissa W., supra, 96 Cal.App.4th at pp. 1300-1301.)
DISCUSSION
We dismiss the McMahons’ appeal as moot. There is no effective relief we can grant them. They challenge the order granting the motion to issue the writ of execution, but the writ expired with no levy effected on February 27, 2008. (§§ 699.530, subd. (b), 699.560, subd. (a)(4).) It accomplishes nothing of substance to reverse an order granting a writ that has expired. (See Melissa W., supra, 96 Cal.App.4th at p. 1300 [appeal from order denying guardianship petition rendered moot when minor became emancipated during appeal]; Wax v. Infante (1983) 145 Cal.App.3d 1029, 1030 (Wax) [appeal from order imposing sanctions against defendants and their counsel rendered moot when counsel paid full sanctions amount].)
We impose sanctions for a frivolous, dilatory appeal. (§ 907 [appellate court may impose “such damages as may be just” as sanctions when appeal is “frivolous or taken solely for delay”]; Cal. Rules of Court, rule 8.276(a)(1) [court may impose sanctions on party or attorney for “[t]aking a frivolous appeal or appealing solely to cause delay”].)
“[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit.” (Flaherty, supra, 31 Cal.3d at p. 650.) “An appeal that may have been meritorious when commenced can become frivolous by the occurrence of subsequent events which render the appeal moot. [Citations.] It is the duty of appellants and their counsel promptly to dismiss an appeal once it becomes moot ‘and not put respondent, his counsel, and this court to the time and expense of reviewing an appeal that had become moot . . . . ’” (Melissa W., supra, 96 Cal.App.4th at p. 1301; accord Wax, supra,145 Cal.App.3d at p. 1031 [imposing sanctions against parties prosecuting moot appeal].)
The McMahons’ appeal is frivolous under both Flaherty standards. Any reasonable attorney would find the McMahons’ appeal had become moot by the writ’s expiration. And the only reasonable inference is that the McMahons continued their appeal after Palacio informed them it was moot only for the improper motives of harassment and delay. The McMahons claim they responded to Palacio’s letter by offering to dismiss their appeal only if Palacio agreed not to seek a new writ of execution. But they had no right to bar Palacio from enforcing its judgment against Arnold. Their response shows they persisted in their appeal only to extract an undeserved concession from Palacio. This is the brazen intransigence of a child who steals another child’s toy and, after being caught, offers to sell it back for a dollar.
In determining the sanctions amount, we may start with “the amount of respondent’s attorney fees on appeal.” (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 33-34 (Pierotti).) Palacio’s counsel states in his declaration that Palacio incurred $2,700 in attorney fees on appeal. This amount is simply too modest to satisfy the purposes of sanctions: “to discourage further frivolous appeals; and to compensate for the loss which results from the delay.” (Economou, supra, 223 Cal.App.3d at p. 107.)
Thus, we may also consider “the degree of objective frivolousness and delay[] and the need for discouragement of like conduct in the future” in setting the sanctions amount. (Pierotti, supra, 81 Cal.App.4th at p. 34.) And we must also account for the sad fact that Arnold’s “frivolous conduct appears not to have been restrained by our prior admonition and imposition of . . . sanctions” against him in Palacio III. (Papadakis, supra,8 Cal.App.4th at p. 1150.)
In Pierotti, the court imposed “generously low” sanctions of $26,000 based on the respondent’s attorney fees incurred on appeal in addition to awarding respondent its reasonable attorney fees on appeal pursuant to the parties’ contract. (Pierotti, supra, 81 Cal.App.4th at pp. 33-35; see also In re Marriage of Gong and Kwong (2008) 163 Cal.App.4th 510, 519-520 (Gong) [awarding $15,000 in sanctions in addition to $30,000 in attorney fees on appeal recoverable under settlement agreement].) We will likewise impose sanctions above and beyond the amount needed to compensate Palacio for its attorney fees incurred on appeal.
We therefore impose sanctions against Arnold in the amount of $5,400 — twice Palacio’s estimated attorney fees. No lesser amount would fully account for the high “degree of objective frivolousness and delay” in this appeal and “the need for discouragement of like conduct in the future” (Pierotti, supra, 81 Cal.App.4th at p. 34), as well as the lack of “any discernible effect” that prior sanctions have had on Arnold. (Papadakis, supra,8 Cal.App.4th at p. 1150.) Arnold shall pay these sanctions to Palacio.
“However, [Palacio] ‘is not the only person aggrieved by this frivolous appeal. Those litigants who have nonfrivolous appeals are waiting in line while we process the instant appeal.’ [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 . . . compensate the government for its expense in processing, reviewing and deciding a frivolous appeal. [Citation.]’ [Citations.] [¶] Because a frivolous appeal, or one taken for improper reasons, harms the court, not just the respondent, a growing number of courts are ordering appellants to pay sanctions directly to the court clerk to compensate the state for the cost of processing such appeals.” (Pierotti, supra, 81 Cal.App.4th at p. 35.)
We therefore impose additional sanctions of $6,000 — an exceedingly conservative estimate of the state’s cost of processing a civil appeal. (Pierotti, supra, 81 Cal.App.4th at pp. 35-36 [imposing $6,000 in sanctions to compensate state, based on an 1992 estimate]; but see Papadakis, supra,8 Cal.App.4th at p. 1150 [imposing $10,000 in sanctions to compensate state]; Economou, supra, 223 Cal.App.3d at p. 108 [imposing $15,000 in sanctions to compensate state].)
We impose these sanctions against the McMahons and Elizabeth’s counsel, Mr. Putman. (Pierotti, supra, 81 Cal.App.4th at pp. 36-37 [sanctioning party and counsel]; Schnabel, supra, 30 Cal.App.4th at pp. 755-756 [same].) “‘An attorney in a civil case is not a hired gun required to carry out every direction given by the client. [Citation.] As a professional, counsel has a professional responsibility not to pursue an appeal that is frivolous or taken for the purpose of delay, just because the client instructs him or her to do so.’” (Economou, supra, 223 Cal.App.3d at p. 106.) Mr. Putman shares the blame for prosecuting this frivolous appeal, despite his beating a last-minute retreat. He signed the appellants’ opening brief on behalf of Elizabeth, even though by that time the writ of execution had expired and the court had denied Elizabeth’s venue motion. Thus, we will direct Arnold, Elizabeth, and Mr. Putman, jointly and severally, to pay $6,000 to the clerk of the court.
Moreover, we question whether Mr. Putman’s client was sufficiently aggrieved by the order issuing the writ of execution to appeal from it. (§ 902.) Arnold alone brought the frivolous anti-SLAPP motion and Palacio III appeal; the subsequent attorney fee order and writ of execution were entered against only him.
Finally, Mr. Putman and the clerk of this court each are directed to send a copy of this opinion to the State Bar for investigation of this matter. The dismissal of this appeal is “based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney.” (Bus. & Prof. Code, § 6086.7, subd. (a)(2).) And the amount of sanctions imposed against Mr. Putnam exceed $1,000. (Bus. & Prof. Code, § 6086.7, subd. (a)(3).)
We trust these sanctions will have a “discernible effect” on the McMahons and Mr. Putnam (Papadakis, supra,8 Cal.App.4th at p. 1150) and deter future misconduct on their part. (Pierotti, supra, 81 Cal.App.4th at p. 34.)
DISPOSITION
The appeal is dismissed. Palacio shall recover its costs on appeal.
Arnold A. McMahon shall pay $5,400 to Palacio within 20 days after the issuance of the remittitur.
Arnold A. McMahon, Elizabeth McMahon, and Philip Putnam, jointly and severally, shall pay $6,000 to the clerk of this court within 20 days after issuance of the remittitur. The clerk of this court is directed to deposit said sums in the general fund.
Mr. Putman and the clerk of this court each are directed to send a copy of this opinion to the State Bar immediately upon issuance of the remittitur.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.
In Palacio Del Mar Homeowners Assn. Inc. v. McMahon (May 31, 2005, G034741 [nonpub. opn.]) (Palacio II), we noted Palacio had filed a new action — this action — alleging the McMahons fraudulently transferred property to prevent Palacio from enforcing their Palacio I judgment. The court adjudged the McMahons guilty of contempt for failing to appear at depositions, and imposed sanctions of $5,000 against each of them. (Ibid.) We denied Elizabeth’s petition for an extraordinary writ but granted Arnold’s petition. (Ibid.)
We discuss Palacio Del Mar Homeowners Assn. Inc. v. McMahon (Aug. 24, 2006, G036287 [nonpub. opn.]) (Palacio III) and Palacio Del Mar Homeowners Assn. Inc. v. McMahon (May 23, 2008, G038622 [nonpub. opn.]) (Palacio IV) in the text.
Meanwhile, in Peters & Freedman v. McMahon (Feb. 14, 2008, G037871 [nonpub. opn.]) and Pratt v. McMahon (Feb. 14, 2008, G038236 [nonpub. opn.]), we affirmed orders denying the McMahons’ anti-SLAPP motions to strike libel complaints filed by Palacio’s counsel.