Opinion
A149069
02-14-2018
CATHERINE M. HARRIS PALLADINO, Plaintiff and Respondent, v. GABRIEL PALLADINO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. AF16798619)
Appellant Gabriel Palladino challenges the trial court's 85-day extension of a temporary domestic violence restraining order as an abuse of the court's discretion. In response, his former spouse, Catherine Harris Palladino, filed a request for sanctions against Gabriel for having filed a frivolous appeal. The expiration of the temporary domestic violence restraining order has rendered Gabriel's appeal moot. Accordingly, we dismiss the appeal. While we question the merits of Gabriel's appeal, we deny Catherine's motion for sanctions.
As is customary in family law proceedings, we refer to the parties by their first names to avoid confusion.
On August 25, 2017, Catherine filed an unopposed request for judicial notice of various documents associated with the domestic violence and dissolution cases. "It is true that, as a 'reviewing court' (Evid. Code, § 459, subd. (a)), we must take judicial notice of some matters (id., § 451) and may take judicial notice of others (id., § 452). There is, however, a precondition to the taking of judicial notice in either its mandatory or permissive form—any matter to be judicially noticed must be relevant to a material issue." (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.) Here, we deny Catherine's request for judicial notice because those documents are immaterial to the dispositive issues.
I. BACKGROUND
The parties were married in 2002, and separated in April 2013. Following the parties' separation, Catherine remained in the family residence in Oakland, California, and Gabriel obtained alternative housing accommodations.
On January 4, 2016, Catherine sought a temporary restraining order to prevent Gabriel from entering the family residence or the property without her permission. In support of her request, she declared that, on December 20, 2015, Gabriel informed her he would move back into the family residence when he returned from his holiday travels. Catherine asserted that the idea of Gabriel entering the house without her permission disturbed her and raised safety concerns. Because of these concerns, Catherine changed the residence's security alarm code and contacted the Oakland police. Catherine's declaration also attached copies of past text messages in which Gabriel had used disparaging language with Catherine. The trial court issued a temporary restraining order and set a hearing for later in the month.
On January 5, 2016, Gabriel went to the family residence at Catherine's request to drop off a retainer for their son. Although Catherine requested he leave the retainer in the mailbox, Gabriel used his key to enter the residence. Catherine's brother arrived shortly thereafter, and served Gabriel with the temporary restraining order. Both sides agree Gabriel did not immediately leave the residence, but they dispute the reason for his ongoing presence in the home. Gabriel contends that he did not initially understand the contents of the papers but left once he understood he had been served with a restraining order. Catherine, on the other hand, contends that Gabriel understood he had been served with a temporary restraining order, but he chose to ignore it and instead refused to leave and repeatedly stated the family residence was his property. In either event, the record suggests Gabriel and Catherine's brother engaged in an angry, verbal exchange before Gabriel left the residence.
Catherine subsequently sought an amended temporary restraining order which, in part, would allow her to change the locks on the family residence based on the January 5 encounter. On January 20, 2016, this request was granted, and the court issued an amended temporary restraining order.
On April 11, 2016, after a full hearing, the court extended the restraining order for an additional 85 days and granted most of the relief Catherine requested, including that Gabriel not harass or contact Catherine and stay at least 100 yards away from the family residence. Gabriel timely appealed. The restraining order expired on July 5, 2016, while Gabriel's appeal was pending.
Catherine questions whether Gabriel filed a valid appeal in light of his use of Judicial Council form APP-102 instead of APP-002. Appeal notices are to be construed liberally to protect the right of appeal. (Cal. Rules of Court, rule 8.100(a)(2); In re Joshua S. (2007) 41 Cal.4th 261, 272; Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 251 [notice of appeal was sufficient despite checking the wrong box to identify the statutory authorization for the appeal].) The goal is " 'to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.' " (In re Joshua S., at p. 272.) "A notice of appeal 'is sufficient if it identifies the particular judgment or order being appealed.' " (Ibid., citing Rule 8.100(a)(2).) The notice in this case clearly met this requirement by identifying the April 11, 2016 order. While Gabriel filed his appeal on the incorrect "Notice of Appeal" form, Catherine does not identify any prejudice that arose from this technical error.
II. DISCUSSION
A. Gabriel's Appeal of the Domestic Violence Restraining Order Is Moot
On appeal, Gabriel challenges the sufficiency of the evidence supporting the April 11, 2016 extension of the domestic violence restraining order. Prior to oral argument, we invited the parties to submit supplemental letter briefs addressing whether the appeal should be dismissed as moot in light of the restraining order's expiration. Catherine filed a supplemental brief agreeing that Gabriel's appeal from the "stay away" order is moot. While Gabriel did not submit any supplemental briefing on this issue, at oral argument he contended Catherine used the restraining order to obtain favorable rulings as to spousal support, child support and child custody.
As a general rule, an appellate court only decides actual controversies. It is not the function of the appellate court to render opinions " ' " 'upon moot questions or abstract propositions, or . . . declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him [or her] any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.' " ' " (Giles v. Horn (2002) 100 Cal.App.4th 206, 227; see also Wilson v. L.A. County Civil Service Com. (1952) 112 Cal.App.2d 450, 453 [" '[A]lthough a case may originally present an existing controversy, if before decision it has, through an act of the parties or other cause, occurring after the commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court' "]; Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 454 ["a case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief"].)
If, as occurred with the domestic violence restraining order at issue here, the relief granted by the trial court is temporal and expires before an appeal can be heard, the appeal is moot. (Environmental Charter High School v. Centinela Valley Union High School Dist. (2004) 122 Cal.App.4th 139, 144.) "However, 'there are three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court's determination.' " (Ibid.)
Neither of the first two discretionary exceptions is even arguably present in this case, as the restraining order arose solely from the January 5, 2016 encounter between the parties. Nor do we believe the third exception is applicable.
"A material question exists when the judgment, if left unreversed, would preclude a party from litigating its liability on an issue still in controversy." (Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 205; see also In re Cassandra B. (2004) 125 Cal.App.4th 199, 209 [addressing merits of appeal of expired restraining order because underlying issues could have an effect in pending dependency proceedings].)
While a finding of domestic violence may create presumptions that impact issues such as child custody or future domestic violence proceedings (see, e.g., Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 665-666; Fam. Code § 6306, subd. (b)(1)), we cannot conclude such considerations are at issue here. Although at oral argument Gabriel maintained that the restraining order impacted support and custody issues, Catherine disagreed. She represented, for example, that the parties have joint custody of the children with a 60/40 split, which was determined without regard to the restraining order. Gabriel offered no evidence to the contrary. Nor did Gabriel explain how any effect on future proceedings would be lessened by our consideration of the merits since he appealed only from the trial court's order extending the temporary restraining order and did not appeal from the original order, which remains part of the record. In light of the record and the arguments with which we have been presented, we decline to exercise our discretion to hear his moot appeal. B. Catherine's Motion for Sanctions Is Denied
A closer question is presented by Catherine's motion for sanctions against Gabriel for filing an appeal that she contends was frivolous and maintained for the sole purposes of delay and vexation. (Code Civ. Proc., § 907 [where appeal frivolous or taken solely for delay, appellate court may add to costs on appeal such damages as may be just]; Cal. Rules of Court, rule 8.276(a) [grounds for sanctions].) "An appeal is 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.' " (In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 516, quoting In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) The first standard is tested subjectively, and the second is tested objectively. (In re Marriage of Gong & Kwong, at p. 516.)
Gabriel's appeal clearly lacks merit. Were he an attorney, we might be more inclined to award sanctions. But although he was represented by counsel in the trial court, Gabriel appears in propria persona in this court. "We do not believe it is appropriate to hold a propria persona appellant to the standard of what a 'reasonably attorney' should know is frivolous unless and until that appellant becomes a persistent litigant." (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98.) While Catherine highlights various wrongdoing by Gabriel, she does not contend he is a persistent litigant.
Nor is it apparent Gabriel's appeal was designed to harass Catherine or delay the trial court proceedings. To the contrary, in fact, Catherine acknowledges Gabriel only filed "a short opening brief." Gabriel neither sought an extension for his opening brief nor filed additional motions in connection with his appeal.
Based on the record before us, we see no evidence establishing that an award of sanctions on appeal is appropriate. Mindful that sanctions should be " 'used most sparingly to deter only the most egregious conduct' [citation], and that [the fact] an appeal lacks merit does not, alone, establish it is frivolous" (In re Marriage of Gong & Kwong, supra, 163 Cal.App.4th at p. 518), we deny Catherine's motion for sanctions.
Catherine argues the appeal violates the terms of the dissolution settlement, which is part of Gabriel's pattern and practice of violating court orders. However, assessing whether Gabriel in fact violated the terms of the settlement requires fact finding beyond the purview of this court. (Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1213 [" ' "Absent exceptional circumstances, no [fact] findings should be made" ' "] italics omitted.) --------
III. DISPOSITION
The appeal is dismissed as moot. Respondent's motion for sanctions is denied. Respondent is entitled to recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.