DRUM v.THE SUPERIOR COURT OF

RIVERSIDE COUNTY

Filed 5/19/06

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH DISTRICT

DIVISION TWO

STATE OF CALIFORNIA

            APPEAL from the Superior Court of Riverside County.  APPEAL treated as ORIGINAL PROCEEDING.  The appeal is dismissed and is deemed a Petition for a Writ of Mandate, which is denied.  (Lawrence W. Fry, Judge.)

            Joel Drum, in pro. per., for Petitioner.

            No appearance for Respondent.

            Joel Drum (Drum) appeals from orders of the trial court imposing ever-increasing amounts of monetary sanctions upon him as the result of his repeated failure to appear at order to show cause hearings.  He claims that the trial judge was biased and that his

orders are therefore void, and in the alternative claims that the trial judge abused his discretion in imposing multiple sanctions orders against him.  On our own motion we find that this appeal is untimely and must be dismissed for lack of jurisdiction pursuant to Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-667 (Hollister) (see also Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 582).  In reaching this determination we disagree with the holding in Lim v. Silverton (1997) 61 Cal.App.4th Supp. 1 (Lim).  However, we also find that this case, because it involves uncertainty in the law with respect to the appealability of the monetary sanctions orders in question, presents special circumstances meriting treatment of the late appeal as a petition for an extraordinary writ.  We deny the writ petition.

Facts and Procedural History

            Drum filed a complaint for subrogation on behalf of plaintiff California Casualty Insurance Company (CCIC) on January 30, 1998, against the defendant owner and defendant driver of an uninsured motor vehicle.  The alleged negligence of those defendants caused CCIC to pay a claim to its insured as the result of an accident.  The complaint sought damages in the amount of $6,086.89, which brought the matter into the jurisdiction of the limited civil court.  (Code Civ. Proc., §§ 85, 86.)^[1]  Judgment was entered on behalf of CCIC and against both defendants on November 16, 1998.

            Nearly one year later the defendants filed a motion to quash service of summons

 for lack of personal jurisdiction.  After a hearing, that motion was granted as to the defendant owner of the uninsured vehicle.  At that time a status hearing was set for March 1, 2000.  Drum failed to appear at that hearing and the trial court issued an order to show cause why sanctions should not be imposed or the matter dismissed for that failure.  The status conference was continued to the same date.  Drum again failed to appear so that on April 5, 2000, the trial court ordered sanctions against him in the amount of $250.  It continued the status conference, issued another order to show cause regarding sanctions or dismissal and an order to show cause why unserved defendants should not be dismissed.  On May 2, 2000, sanctions in the amount of $1,000 were ordered for Drum's failure to appear and the hearing was again continued.  Further, Drum was ordered to appear on May 23, 2000, to show cause why the case should not be dismissed and was told that if he did not appear the case would be dismissed and sanctions imposed.  Again Drum did not appear.  The trial court ordered sanctions against him in the amount of $1,500, continued the hearing again and reported him to the State Bar.  Drum failed to appear on June 28, 2000, and on November 29, 2000, at which times sanctions in the amount of $2,000 and $3,000 were ordered against him, respectively.

            Status conferences were held on 12 additional dates but no sanctions were ordered for Drum's continued failure to appear.  Then, on August 28, 2001, Drum was sanctioned $3,500 for his failure to appear and was again ordered to be present in court.  On February 2, 2002, the trial court imposed sanctions in the amount of $4,000.  Another

 hearing passed at which no further sanctions were ordered.  Then, on February 24, 2003,

 the trial court imposed additional sanctions in the amount of $4,500 for Drum's failure to appear on that date.  Further sanctions of $5,000 were ordered for Drum's failure to appear on March 28, 2003.  On September 29, 2003, the trial court ordered sanctions of $500, stayed to March 30, 2004.  Although the record does not so reflect, Drum's notice of appeal indicates that the action was ordered dismissed on September 29, 2004.

            The appeal was properly made to the appellate division of the superior court in that this is a limited civil case.  (§ 904.2.)  Because Drum failed to file a change of address during the time that he was ignoring the orders of the trial court to appear, the appellate division mailed its request for additional briefing on the issue of the timeliness of the appeal and its ultimate opinion to an incorrect address.  The appellate division filed its opinion, certified for publication, on October 19, 2005.  Thereafter, on its own motion, this court ordered the appeal transferred to it under the authority provided in California Rules of Court, rules 62 and 64(a) in order to secure uniformity of decision and to settle an important question of law.  This court determined that Drum had not had an opportunity to brief the issue of the timeliness of his appeal and allowed him to file a supplemental brief.

Discussion

            Drum urges as grounds for reversal of the trial court's sanctions orders (1)  that the trial court was prejudiced against him as defined in section 170.1, subdivisions (a)(6)(A)(iii) and (a)(6)(B), and the orders were therefore void, and (2)  that the trial court abused its discretion in imposing monetary sanctions against him.  However, because the

 timeliness of an appeal poses a jurisdictional issue, we must raise the point sua sponte and must consider that question first.

A.  The Appeal is Untimely

            Preliminarily, in his supplemental brief, Drum urges that Government Code section 68081 requires that we transfer this case back to the appellate division with directions that it vacate its opinion, allow him to file a brief on the issue of the timeliness of his appeal, and then rehear the matter.  The appeal is considered de novo before this court and we have provided Drum with the chance to file a supplemental brief addressing the issues raised by the appellate division's opinion.  He availed himself of that opportunity.  The purpose of Government Code section 68081 having been served, we see no reason to consume additional time and court resources by insisting on further briefing and hearing of this matter below.

            California Rules of Court, rule 122(a) provides, with exceptions that do not apply here, that a notice of appeal in a limited civil case must be filed within 30 days after mailing or service of notice of entry of a judgment or an appealable order, or within 90 days after the entry of judgment.  Each of the orders imposing monetary sanctions from which Drum purports to appeal was entered more than 90 days prior to his filing a notice of appeal on October 29, 2004.  Thus, if those were appealable orders, his appeal is not timely.

            Historically, appeals from both limited and unlimited civil cases have been restricted by statute.  With certain listed exceptions, an appeal may be taken only from a judgment, other than an interlocutory judgment.  (§§ 904.1, 904.2.)  This is more commonly known as the â€