Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. S1501FL595523, Judith K. Dulcich, Judge.
Ana M. Soares, for Plaintiff and Appellant.
Floyd & Horrigan and George R. Horrigan for Defendant and Respondent.
OPINION
Ardaiz, P.J.
Appellant Pamela Kay Waymire sought and obtained a domestic violence restraining order against respondent David Shaheen Nabhan pursuant to the Domestic Violence Protection Act (DVPA) (Fam. Code, § 6200 et seq.). Nabhan also sought and obtained a domestic violence restraining order against appellant. The parties are unmarried and are the parents of a minor child born in 1994. In a proceeding brought under the DVPA, the court may, under some circumstances, issue orders pertaining to child custody and support. (See Fam. Code §§ 6323, 6341, 6346, and 11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, §384, p. 498.) In this case the court held numerous hearings and issued various orders over a span of about two years. On this appeal Waymire challenges or attempts to challenge some of these orders.
APPELLANT’S CONTENTIONS
Appellant Waymire contends that the court erred in (1) denying her motion to compel production of documents and ordering her to pay $3,000 in monetary sanctions to Nabhan on her unsuccessful motion, (2) awarding custody of the minor child to Nabhan, and (3) refusing her request for an order requiring Nabhan to pay her attorney fees. As we shall explain, appellant has failed to demonstrate that the orders she challenges are appealable. We also explain that even if they were, appellant has shown no error. We will dismiss the appeal.
FACTS
The record presented on this appeal is sparse, but from it we glean the following.
A “Register of Action/Docket” (Docket) included in the Clerk’s Transcript on appeal (see Cal. Rules of Court, rule 8.122(b)(1)(F)) shows that appellant filed her request for a restraining order in September of 2005. The request itself does not appear in the record. Nor does respondent Nabhan’s request for a restraining order against appellant. The Docket indicates, however, that in March of 2006 the parties appeared at a hearing on appellant’s order to show cause re domestic violence. Appellant was in pro per. Respondent Nabhan was represented by newly retained counsel. The court appointed an attorney to represent the minor, who at that time was 12 years old. The court ordered respondent to pay a $500 initial fee to the minor’s counsel, and continued the matter to a date in April. A declaration of appellant Waymire appearing in the clerk’s transcript asserts that appellant Waymire and respondent Nabhan “had a relationship for 22 years” before separating in August of 2005.
At the April hearing both appellant and respondent were represented by counsel. The Docket indicates that the parties reached a stipulation. The stipulation does not appear in its entirety in the record, but the Docket recites that the stipulation provided in part that “father shall have phone contact with the minor child each night from 6:30 - 7:00 p.m.” and “mother shall have the minor available for the calls.” The matter was then continued to a date in May “to allow more time for minor’s counsel to complete her investigation.” The Docket indicates that at a May 2006 hearing at which both parties and the minor were all represented by counsel, the court awarded joint legal custody to appellant and respondent with sole physical custody to appellant. The court also ordered that respondent have visitation with the minor on three Sundays per month, and either issued a restraining order against respondent or continued in effect a restraining order that had been issued against respondent at some earlier time. The record on appeal does not include the May 2006 order itself, although the Docket indicates that appellant’s counsel was to prepare an order after the hearing.
In June of 2006 the court held a hearing and issued a ruling concerning a dispute between appellant and respondent over property. The Docket states that the court also set on its own motion an order to show cause why this case (DVPA case No. 595523) should not be consolidated with “Paternity #28199, Nabhan v. Waymire.” In August of 2008 the court did order case No. 595523 consolidated with case No. 28199. No pleadings or orders from case No. 28199 appear in the record on this appeal, and we do not know what became of case No. 28199.
Later in 2006 respondent Nabhan filed a request for a domestic violence restraining order against appellant. In November 2006 the court held a hearing at which both appellant and respondent appeared without counsel. The Docket indicates that both appellant and respondent testified at this hearing, and that the court then issued domestic violence restraining orders against both of them. The restraining orders themselves do not appear in the record on this appeal and thus we do not know the precise terms of those orders, but the Docket indicates that each restraining order was “granted for a period of three years.” The November 2006 Docket entry also notes that the parties were still having a dispute over property and that appellant “has not been cooperative regarding the possible sale of the property.”
At a July 2007 hearing the minor’s counsel was relieved and replaced by new court-appointed counsel. Appellant and respondent were each ordered to pay a $50 initial fee to the minor’s new counsel.
In April of 2008 respondent Nabhan filed an order to show cause regarding a change in child custody and child visitation. The Docket indicates that this OSC was filed, but the OSC itself does not appear in the record on appeal. On May 19, 2008, the court held a hearing at which appellant and respondent both appeared without counsel. The minor’s counsel was present. The Docket states that the court ordered appellant “to drug test by 5 p.m. this date.” The court made other orders pertaining to respondent’s schedule for visitation with the child, and set another hearing for June 10. The Docket entry states in part: “reason for next appearance: [appellant] to obtain counsel, test results, minors [sic] counsel recommendation.” The Docket entry also states that the minor’s counsel was to “prepare order after hearing.” No such order appears in the record on appeal.
The next hearing in fact took place three days later on May 22, 2008. Appellant and respondent appeared without counsel. The minor’s counsel appeared for the minor. The Docket entry for the May 22 hearing states in pertinent part:
“BASED ON THE POSITIVE DRUG TEST AND THE RECOMMENDATION OF MINOR’S COUNSEL THE COURT WILL MAKE THE FOLLOWING ORDERS: [¶] THE COURT WILL SET THE HEARING AS REQUESTED (06/10/2008) [¶] THE PARTIES SHALL HAVE JOINT LEGAL CUSTODY AND JOINT PHYSICAL CUSTODY OF THE MINOR CHILD. FATHER TO HAVE TEMPORARY PRIMARY CUSTODY FROM TODAY AFTER SCHOOL UNTIL THE NEXT HEARING. [¶] THE COURT INFORMS THE PARTIES THIS IS A TEMPORARY ORDER PENDING THE NEXT HEARING. BASED ON THE RECOMMENDATION OF MINOR’S COUNSEL FATHER NEEDS TO HAVE AN EXTENDED VISITATION PERIOD WITH THE CHILD. [] THE COURT WILL NOT MAKE ANY ORDERS FOR MOTHER TO HAVE VISITATION PENDING NEXT HEARING.
At the June 10, 2008 hearing on respondent’s order to show cause regarding modification of child custody and child visitation, appellant appeared with her present counsel. Respondent appeared without counsel, and the minor’s counsel appeared on behalf of the minor. The court ordered respondent to file an updated income and expense declaration and further ordered, according to the Docket, that appellant “is [sic] get counseling for anger management, substance abuse, and parenting classes.” The court then ordered the matter continued to July 29.
At the July 29 hearing appellant appeared with her present counsel. Respondent appeared without counsel, and the minor’s counsel appeared for the minor. According to the Docket, the court awarded sole legal and physical custody of the minor to respondent Nabhan. It ordered two hours of supervised visitation for appellant on alternate Saturdays, and ordered respondent to enroll the minor in a school local to respondent’s residence. The court ordered appellant to continue individual counseling and parenting classes, and set another hearing for August 21 to address issues of visitation and attorney fees. The court also ordered this case (No. 595523) consolidated with yet another case, case No. DA 787718. Case No. DA 787718 appears to be a case brought by the County of Kern against David Nabhan to establish that Nabhan was the child’s father and to establish support for the child. The County’s complaint in case No. DA 787718 appears in the record on this appeal and shows that it was filed on July 6, 2007, but nothing in the record on this appeal reveals what became of the County’s action.
At an August 21 hearing the court addressed issues pertaining to appellant’s visitation with the minor, and amended the visitation order to require drug testing for appellant and to specify the precise location for appellant’s visitation with the minor. Appellant and the minor were represented by counsel. So was respondent Nabhan, whose new counsel had filed a substitution of attorney on the previous day. The court also ordered appellant to return to the child various personal items that were in appellant’s possession, including a computer the child needed for her schoolwork. The court further addressed motions filed by appellant to compel production of documents from respondent and for an award of attorney fees. The court granted appellant until September 5 to file reply papers to respondent’s opposition to the motions, and ruled that the two motions would stand submitted as of September 5. The court apparently did this because respondent had retained counsel only one or two days before the August 21 hearing, and appellant had not yet had time to reply to respondent’s late-filed papers. Appellant filed her reply papers on September 5. On October 14, 2008, the court issued its order denying appellant’s motions to compel production of documents and for attorney fees. The court also ordered appellant to pay $3,000 in sanctions to respondent.
ANALYSIS
This appeal requires us to revisit and restate some basic, fundamental principles of appellate review. “‘A judgment or order of the lower court is presumed correct.’” (Denham v. Superior court (1970) 2 Cal.3d 557, 564.) “‘It is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from, and that an appellant has the burden of showing reversible error, and that, in the absence of such showing, the judgment or order appealed from will be affirmed.…’ [Citation.]” (Walling v. Kimball (1941) 17 Cal.2d 364, 373; Hibernia Sav. & Loan Soc. v. Ellis Estate Co. (1933) 132 Cal.App. 408, 412.) “All presumptions indulged in are in favor of the regularity of the judgment and proceedings upon which it is based, hence it devolves upon an appellant to affirmatively show the existence of the error upon which he asks for a reversal.” (Scott v. Hollywood Park Co. (1917) 176 Cal. 680, 681; Dahlberg v. Dahlberg (1927) 202 Cal. 295, 297.) “The burden rests upon the party complaining not only to show error but also to show that the error is sufficiently prejudicial to justify a reversal.” (Coleman v. Farwell (1929) 206 Cal. 740, 741.)
“No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or 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; see also Code Civ. Proc., § 475.)
A “‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800; in accord, see also Elsner v. Uveges (2004) 34 Cal.4th 915, 939.) “We have made clear that a ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; in accord, see also Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682.) This “so-called Watson standard applies generally to all manner of trial errors occurring under California law, precluding reversal unless the error resulted in a miscarriage of justice.” (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 801; see also Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) Thus, “[a]lthough the Watson standard is most frequently applied in criminal cases, it applies in civil cases as well.” (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 801.)
“It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.” (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709; in accord, see also Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 (Griset).) Although there are exceptions, provided for by statute (see Code Civ. Proc., § 904.1), the “one final judgment rule” is “a fundamental principle of appellate practice that prohibits review of intermediate rulings by appeal until final resolution of the case.” (Griset, supra, 25 Cal.4th at p. 697.) “‘The theory is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case.’” (Ibid.)
This case involves proceedings under the DVPA. “The DVPA defines domestic violence as ‘abuse’ perpetrated against enumerated individuals, including a former spouse or cohabitant. ([Fam. Code,] § 6211, subds. (a) & (b).) Its purpose is to prevent the recurrence of acts of such abuse and to provide for a separation of those involved in order to resolve its underlying causes. ([Fam. Code,] § 6220.) To this end, the DVPA provides for the issuance of restraining or ‘protective’ orders, either ex parte or after hearing, that enjoin specific acts of abuse.” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334; see also Oriola v. Thaler (2000) 84 Cal.App.4th 397, 404-406; Hogoboom et al., Cal. Practice Guide: Family Law (The Rutter Group 2009) §5:35 et seq. (rev. #1 2008).) As we have already mentioned, both appellant and respondent obtained such protective orders in this case. More pertinent to this appeal, however, are the DVPA’s provisions pertaining to child custody and visitation, about which we will have more to say in our analysis post of appellant’s contention that the court erred in awarding custody of the minor to respondent Nabhan.
I.
THE ORDER DENYING APPELLANT’S MOTION TO COMPEL AND IMPOSING MONETARY SANCTIONS
With regard to the order denying appellant’s motion to compel production of documents, “it is firmly established that orders relating to inspection and discovery are not appealable.” (Southern Pacific Co. v. Oppenheimer (1960) 54 Cal.2d 784, 786; in accord, see also Huenergardt v. Huenergardt (1963) 218 Cal.App.2d 455, 459, and Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) §2:250 (rev. #1 2008).) As for the sanctions order, an order directing the payment of monetary sanctions is appealable “if the amount exceeds five thousand dollars ($5,000).” (Code Civ. Proc., § 904.1, subd. (a)(11).) The sanction against appellant did not exceed $5,000 and thus is not appealable.
Although discovery orders may be reviewed on an appeal from a final judgment (see Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, fn. 4 at p. 185), and so may a sanction order “of five thousand dollars ($5,000) or less” (Code Civ. Proc., § 904.1, subd. (b)), we would find no error even if there were a final judgment in this case. A motion to compel a further response to a demand for production and inspection of documents “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310, subd. (b)(2).) The motion “shall comply” with this requirement. (Code Civ. Proc., § 2031.310. subd. (b).) Appellant’s motion was not accompanied by any such declaration. Although appellant argues that it was, the declaration to which she refers was filed much later and did not accompany her motion. The court thus properly denied the motion. “The court shall impose a monetary sanction... against any party... who unsuccessfully... opposes a motion to compel further response to an inspection demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.310, subd. (d).) The court thus properly imposed the sanctions as well.
II.
ATTORNEY FEES
Appellant’s motion to compel production of documents filed on July 22, 2008, sought an award of $3,000 in attorney fees as well. Appellant also filed on that same date a motion to consolidate the DVPA case with the County’s action against Nabhan for child support (DA-787718). The consolidation motion sought $1,000 in attorney fees. Both of these motions were scheduled for hearing on August 21, 2008. When the court became aware of the motion to consolidate, the court consolidated the two cases at the July 29, 2008 hearing on respondent Nabhan’s order to show cause regarding a modification of custody of the minor. The record on appeal does not contain a reporter’s transcript of this July 29 hearing (even though this was the hearing at which the court awarded sole legal and physical custody of the child to respondent Nabhan, an order which appellant also challenges on this appeal). The court held a hearing on the two motions (minus the issue of consolidation, which had already been granted) on August 21. Because Nabhan had retained counsel only one or two days before the August 21 hearing and appellant’s counsel had not received respondent’s opposition papers until just before the August 21 hearing, the court gave appellant until September 5 to file any reply to that opposition and then took the matters under submission as of that date.
The court ruled on the submitted matters on October 14, 2008. As we have already discussed in part “I” ante, the court denied the motion to compel. The court also denied appellant’s request for attorney fees. Appellant now contends that the denial of her request for attorney fees was error.
Once again, appellant fails to demonstrate that this was an appealable order, or that there has been any appeal from a final judgment. (People v. Chi Ko Wong, supra, 18 Cal.3d 698, Griset v. Fair Political Practices Com., supra, 25 Cal.4th 688.) The appeal from this order must therefore be dismissed.
Even if we could review this order on appeal, we would find no error. As we mentioned in part “I” ante, the court was required to impose a monetary sanction against appellant or her attorney on appellant’s unsuccessful motion to compel. (Code Civ. Proc., § 2031.310, subd. (d).) The court therefore did not err in refusing to award attorney fees to appellant. Appellant calls our attention to no authority requiring a court to grant attorney fees to a party who makes a successful motion to consolidate two pending cases. Nor did her motion to consolidate cite any such authority. The court expressed the view that a formal written motion to consolidate was unnecessary. Respondent Nabhan’s declaration to the court stated that appellant’s counsel “never asked if I would consent to consolidating the cases, which I certainly would have agreed to.” Appellant’s brief implies that she made a motion in the trial court seeking attorney fees for her counsel’s representation of her on the custody issue. No such motion appears in the record on appeal.
III.
CUSTODY
Parties to a DVPA proceeding are often, as in the present case, not married to each other. There is thus no action for dissolution of marriage in which to issue any custody orders. The DVPA fills this void by authorizing the court in a DVPA action to issue custody orders under certain circumstances. (See Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, and Fam. Code, §§ 6323 & 6346.) In this case the court on July 29, 2008, ordered sole legal and physical custody of the minor to respondent Nabhan. A formal order to this effect was signed by the court on October 14, 2008, and filed on October 17, 2008. The formal order states that “Respondent/Father, David Shaheen Nabhan, shall have sole legal and physical custody of the minor child.…” It also states “[t]his order shall be deemed a final determination of child custody as set forth in In re Marriage of Montanegro (2001) 26 Cal.4th 249 and therefore any future requests for modification of this order shall require the moving party to prove a substantial and persuasive change of circumstances.” Appellant contends that this ruling was erroneous.
As with the other orders appellant attempts to challenge on this appeal, appellant fails to explain how this order is appealable. The “‘one final judgment rule”” applies even in actions involving custody. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 560-561.) Appellant fails to call our attention to any judgment entered in this case, or to any statute making the challenged order appealable. (People v. Chi Ko Wong, supra, 18 Cal.3d 698.) In response to a briefing letter in which this court asked appellant to explain how this order is appealable, appellant did not contend that there was any final judgment in this case, but asserted that the order is appealable under Code of Civil Procedure section 904.1, subdivision (a)(10), which authorizes an appeal “[f]rom an order made appealable by the provisions of the Probate code or the Family Code.” (Code Civ. Proc., § 904.1, subd. (a)(10).) Our briefing letter asked appellant to identify a provision of the Family Code or the Probate code which makes the order appealable. Appellant’s supplemental brief identified no such provision. Appellant merely cited several cases which do not address appealability at all, and which appear to involve appeals from either judgments (see Code. Civ. Proc., §904.1, subd. (a)(1)) or post-judgment orders (see code Civ. Proc., §904.1, subd. (a)(2)).
Even if we could reach the merits of the ruling, appellant has shown no error. The record on this appeal does not include the order to show cause filed by respondent Nabhan seeking the requested change in custody. Nor does it include a reporter’s transcript of the July 29, 2008 hearing on that order to show cause at which the custody ruling was made. All we know is that the court made the custody order after appellant failed a drug test, and that the court permitted only supervised visitation by appellant with the minor. Appellant appears to contend that respondent did not make a sufficient evidentiary showing to justify the court’s ruling. However, we do not know what evidentiary showing was made. We do not even know whether the July 29 custody order was contested by appellant at the July 29 hearing. Appellant has failed to meet her burden to demonstrate reversible error. (Walling v. Kimball, supra, 17 Cal.2d 364.)
Appellant cites Montenegro v. Diaz (2001) 26 Cal.4th 249, where the court held that “a stipulated custody order is a final judicial custody determination... only if there is a clear, affirmative indication the parties intended such a result.” (Id. at p. 258.) At the end of the August 21 hearing on appellant’s motion to compel and for attorney fees respondent’s counsel stated, in an apparent reference to the court’s July 29 custody ruling, “it appears that the Court indicated in the back that that last order was a final order, or Montenegro order” and “I’d like that reflected in the order after hearing.” The court replied: “Right. I think we all agreed on that.” Appellant’s counsel was present at the August 21 hearing and made no comment to the contrary.
DISPOSITION
The appeal is dismissed. Costs to respondent.
WE CONCUR: Dawson, J., Hill, J.