In re Marr. of Zhou

Filed 6/15/07 In re Marr. of Zhou CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant Jing Fu Zhou attempts to appeal, in propria persona, from an order in a marital dissolution proceeding (1) granting the motion of respondent Kristina Ciunkaite Zhou to compel production of documents and denying appellants related motion to strike; and (2) ordering appellant to pay $10,000 in attorney fees to respondents counsel. We dismiss the appeal.

BACKGROUND

The parties married in September 1999 when respondent immigrated to the United States from Lithuania. They have a daughter, born in October 2000. In 2004 the couple purchased a home in Vancouver, Canada. Respondent and daughter have lived there since July 2004; she is a full-time stay at home mother. Appellant lives in Fremont and works in the Bay Area. He earned approximately $98,845 (gross) in 2005.

In January 2006 respondent filed a petition for dissolution of marriage. That June she submitted an order to show cause requesting an order compelling production of documents and for attorney fees. Respondent also served a subpoena duces tecum on a corporation which she contends appellant controlled.^[1]

In August 2006 appellant, now in propria persona, moved to quash the subpoena and submitted a separate request asking the court to make factual findings concerning complex and substantial issues. In these papers appellant asserted that respondent purloined and extracted privileged and confidential information from him and the corporation at issue, compelling him to file a civil Racketeer Influenced Corrupt Organizations (RICO) lawsuit. Further, appellant claimed that the RICO defendants authorized an agent to threaten him to withdraw the suit.

In September 2006 appellant filed an order to show cause, describing it as a motion to strike or alternatively a motion to quash, and a motion to deny attorney fees. He attached as exhibits e-mails, contracts and other company documents that he claimed were privileged. This time appellant alleged that respondent criminally intercepted confidential and privileged e-mails.

At the hearing appellant asserted that respondent committed criminal conduct in further and to facilitate the divorce action. The trial court indicated it did not have jurisdiction over criminal matters and suggested if he believed there were federal crimes that appellant contact the FBI.

The court entered a comprehensive order on October 25, 2006. First, the court denied appellants motion to strike, indicating, among other matters, that appellant willingly gave respondent access to the computer and that the offending conduct occurred during the course of the marriage. Second, ruling on respondents discovery request, the court ordered appellant to produce four types of documents by October 23, 2006. Finally, the court ordered appellant to pay respondents counsel $10,000 in attorney fees by October 2, 2006, and an additional $5,000 to enable respondent to retain a forensic accountant. As to these last two items, the court specifically indicated that both fees would be credited back in the final marital settlement. Accordingly, the court reserved jurisdiction over the attorney and expert fees paid to respondent for possible re-allocation at the conclusion of this case.

DISCUSSION

A. Interlocutory Discovery Order

To the extent appellants attempted appeal concerns the lower courts discovery order, such order is a prejudgment discovery order which generally would not be appealable. (Code Civ. Proc.,  904.1; see Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 984; Bartschi v.Chico Community Memorial Hospital (1982) 137 Cal.App.3d 502, 507.) Under exceptional circumstances, a party may seek immediate review by petition for extraordinary writ. (See Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186.) Appellant did not pursue a writ, and in any event the circumstances are not exceptional.

Pursuant to Family Code section 2025, an interlocutory family law order may be appealed where the trial court has bifurcated the issue for separate hearing or trial in advance of the disposition of the entire case, and certified that appeal is appropriate. With a certificate of probable cause in hand, a party may make a motion to appeal in the Court of Appeal and, if granted, the rules governing civil appeals then generally apply. (Cal. Rules of Court, rule 5.180(d)(1), (f)(1) (hereafter rule 5.180).)

Here, appellant attempted to obtain a certificate of probable cause by filing a request for same. However, he did not follow the noticed motion procedure required by the rule 5.180(b)(2), nor did he prosecute a motion to appeal in this court as required by rule 5.180(d)(1). Needless to say, we did not grant the nonexistent motion and this matter never proceeded in this court under rule 5.180(f). Accordingly, appellant did not perfect an appeal through this process.

B. Order Regarding Pendente Lite Attorney Fees

To the extent appellant attempts to appeal from the order directing him to pay attorney fees by a certain date, such order likewise was not appealable. There is an exception to the one final judgment rule that permits an appeal from a collateral final judgment or order. For the exception to apply, the judgment or order must (1) be final as to the collateral matter; (2) in fact be collateral to the general subject of the litigation; and (3) direct payment of money by appellant or performance of an act by or against appellant. (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119; Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297-298.) Where the collateral order doctrine applies, a family law pendente lite attorney fee order will be subject to direct appeal. (See In re Marriage of Skelley (1976) 18 Cal.3d 365, 368-369; In reMarriage of Weiss (1996) 42 Cal.App.4th 106, 118-119; Askew v. Askew (1994) 22 Cal.App.4th 942, 964, fn. 37.)

Skelley directs us to look to the substance of a pendente lite order to determine whether it is directly appealable. (In re Marriage of Skelley, supra, 18 Cal.3d at p. 368.) Where nothing remains for judicial determination except enforcement or compliance or noncompliance with the terms of the interlocutory order, a direct appeal will lie. (Ibid.; In re Marriage of Weiss, supra, 42 Cal.App.4th at p. 119.) Skelley and Askew both involved an appeal from an interlocutory order denying attorney fees. In both cases the court held that the order was appealable because it had all the elements of a final judgment. (In re Marriage of Skelley, supra, 18 Cal.3d at p. 368; Askew v. Askew, supra, 22 Cal.App.4th at p. 964, fn. 37.)

Here, the attorney fee portion of the order did not have all the elements of a final order and the court made it clear that more than enforcement remained for judicial determination. Specifically, at the hearing the court noted that all these moneys, attorneys fees that . . . have been ordered are all subject to an accounting at the time that the assets of the marriage are divided. [] So what Im saying, Mr. Zhou, is ultimately you get credit for these moneys that have been spent if appropriate, okay? So Im reserving that aspect of these fees for the final marriage settlement. The resulting order indicated that the amount of attorney fees would be credited back in the final judgment and included a clause specifically reserving jurisdiction over the matter for possible re-allocation at the conclusion of the case. Accordingly, the collateral order doctrine does not apply and appellants pendente lite attorney fee order was not subject to direct appeal.

DISPOSITION

The purported appeal is dismissed. Respondents motion for sanctions is denied.

_________________________

Reardon, J.

We concur:

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Ruvolo, P.J.

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Rivera, J.

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^[1]Appellant is the president, secretary and chief financial officer of the company, its sole director, and is also its registered agent for service of process. The companys business address is the same as his home address.