Raglin v. Dorton
Filed 11/6/13 Raglin v. Dorton CA2/8
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
SHERRELL RAGLIN,
Plaintiff and Respondent,
v.
FRED D. DORTON, JR.,
Defendant and Appellant.
B242877
(Los Angeles
County
Super. Ct.
No. NF 004132)
APPEAL from
a judgment of the Superior Court
of
County, Scott M. Gordon, Judge, and Lloyd C. Loomis,
Commissioner. Dismissed.
Fred D.
Dorton, in pro. per.; the Dorton Firm and Sana Z. Shah for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
* * * * * *
Appellant
Fred D. Dorton
title="">[1]
purports to appeal several orders in this child support proceeding. Because we lack jurisdiction, we dismiss.
BACKGROUND
This case has its genesis in an order
for child support in effect against appellant since November 15, 2002. This appeal concerns discovery and other proceedings
related to an order to show cause (OSC) re modification of child support filed
on April 28, 2011, by
respondent Sherrell Raglin. On June 9, 2011, respondent
propounded a first set of interrogatories and requests for production related
to the OSC. Appellant responded to those
requests on July 6, 2011. On August 22,
2011, respondent propounded a second set of interrogatories and
requests for production on appellant. Appellant
responded to those requests on September 21,
2011. Following several
meet-and-confer letters, on November 10, 2011, respondent filed a motion
to compel discovery responses to her second set of requests and for sanctions
and attorney fees because appellant had responded to discovery only with
boilerplate objections and had failed to produce any discovery. Respondent set the motion for hearing on December 20, 2011.
In
the meantime, on September 2, 2011,
appellant filed a demurrer to the OSC. Then-Commissioner
Lloyd C. Loomis overruled the demurrer on October 24, 2011, ordered the parties to file
updated income and expense declarations, and set the next hearing on the OSC for
November 17, 2011. At that November 17, 2011 hearing, the
court continued the matter to December 20, 2011, to coincide with the
pending motion to compel and ordered the parties to meet and confer to address the
discovery issues, which they did on December 2, 2011, but reached no
resolution.
On
December 7, 2011, appellant filed an opposition to the motion to compel, a
request for sanctions and attorney fees against respondent, and an opposition
to the OSC. The court held a hearing on
the motion to compel on December 20, 2011, and on January 3, 2012,
issued an order granting the motion and directing appellant to comply with Superior
Court of Los Angeles County, Local Rules, rule 5.9 regarding the production of
financial declarations and supporting documents and to produce tax returns for
tax years 2009 and 2010 by February 14, 2012. The court set the next hearing on the OSC for
March 9, 2012, along with an order to show cause why it should not order
appellant to pay $3,000 in attorney fees to respondent pursuant to Family Code
section 271.
Appellant
filed a motion to reconsider the January 3, 2012 order on January 17,
2012, which was heard at the March 9, 2012 hearing. During the hearing, appellant challenged Commissioner
Loomis’s impartiality for failing to grant appellant a continuance to obtain a
transcript of a prior hearing. In an
order filed March 15, 2012, Commissioner Loomis denied appellant’s motion
to reconsider and overruled appellant’s objection to him deciding the matter. The court also ordered respondent to file a
declaration for attorney fees related to the motion to reconsider and to file a
motion requesting default for appellant’s failure to comply with
discovery. It does not appear from the
record the court imposed fees for the motion to reconsider, however.
On
March 20, 2012, the court issued “Findings and Recommendation of
Commissioner,†ordering appellant to pay $3,000 in attorney fees related to the
January 3, 2012 order granting the motion to compel, and on April 6,
2012, supplemented the findings to order the Los Angeles County Child Support
Services Department (CSSD) to obtain appellant’s income tax returns from the
Franchise Tax Board for tax years 2009 through 2011. On April 17, 2012, Superior Court Judge
Scott M. Gordon affirmed those orders.
On
May 25, 2012, appellant filed an application with a supporting declaration
to disqualify Commissioner Loomis pursuant to Code of Civil Procedure section
170.1, subdivision (a)(6),
name="_ftnref2" title="">[2]
which Commissioner Loomis struck on May 29, 2012. The court noted the order was not appealable
and may only be reviewed by a writ of mandate sought within 10 days of notice
of the order.
At
the hearing on the application, the court continued the hearing on the OSC to July 9,
2012. At that hearing, due to a
misunderstanding, respondent’s attorney did not appear and, over appellant’s
objection, the court continued the matter to July 18, 2012. On the morning of July 18, 2012, appellant
filed an updated income and expense report and objections to the
continuance. At the hearing, the court
ordered appellant to produce the tax returns for his C Corporation for the tax
years 2010 and 2011 to be delivered to the court by noon on Friday, July 20,
2012, and ordered appellant to comply with the court’s prior order to produce
documents by August 17, 2012.
The
next day, July 19, 2012, appellant filed his notice of appeal. It stated he was appealing from the orders
dated “4/12, 3/12, 10/11,†which he described as “Family Law Orders After
Hearing -- CCP 473(d), voidable orders common law cases.†Based upon the notice of appeal, he filed a
notice of stay of proceedings on July 20, 2012, claiming all proceedings
were automatically stayed because he had appealed.
On
July 27, 2012, Commissioner Loomis issued recommended findings and orders,
noting appellant failed to produce the tax returns for his law corporation by July 20,
2012, and instead filed the notice of appeal and automatic stay. Commissioner Loomis found the stay
ineffective because it did not comply with the California Rules of Court and
because the notice of appeal did not refer to the January 3, 2012 order. Commissioner Loomis also ordered appellant to
comply with the court’s January 3, 2012 order by September 14, 2012, at
the risk of contempt proceedings; ordered the CSSD to determine if appellant
was current on his child support payments, and if not, to enforce the support
order by notifying the Department of Motor Vehicles and the State Bar of
California; ordered respondent’s attorney to file a request for attorney fees
for all services since the last order for attorney fees; and ordered the CSSD
to request appellant’s federal and state tax returns for tax years 2009-2011
from the appropriate taxing authorities.
Appellant filed objections to the July 27, 2012 order on August 2,
2012. In an August 20, 2012 minute
order, Judge Gordon incorrectly noted no objections to the July 27, 2012
order had been filed, and affirmed and adopted Commissioner Loomis’s findings
and recommendations. Pointing out Judge
Gordon’s mistake, appellant filed a motion to reconsider that order on August 30,
2012. Judge Gordon granted the motion on
October 1, 2012, and set the matter for a trial de novo on October 24,
2012.
Commissioner
Loomis held a hearing on the OSC on September 14, 2012, over appellant’s
objections and issued a support order on September 18, 2012, awarding
$1,535 per month for the period between May 1, 2011, and May 31,
2012; and $1,435 per month beginning June 1, 2012. Commissioner Loomis found respondent’s
evidence credible and rejected appellant’s evidence, noting the Franchise Tax
Board reported no record of tax returns filed by appellant and questioning
whether an undated 2010 federal tax return submitted by appellant was ever
filed. Based on respondent’s submission,
Commissioner Loomis imputed a monthly income to appellant of $13,000. Judge Gordon took that matter under
submission on October 24, 2012.
Appellant
then filed an ex parte application on
November 20, 2012, claiming the September 18, 2012 support order
violated local rules and requesting an order releasing his license to practice
law, based upon correspondence from the State Bar and an order from the
California Supreme Court that his license would be suspended on November 26,
2012 for his failure to comply with his child support obligations. Commissioner Loomis denied the application.
On
December 18, 2012, Judge Gordon ruled on the pending matters. He noted appellant had filed objections to the
July 27, 2012 order involving the January 3, 2012 order and the September 18,
2012 support order, and found appellant’s objections without merit: “The subject Recommended Findings dealt with [appellant’s]
non-compliance with order made on January 3, 2012. The [appellant’s] objections to those orders
were heard and adjudicat[ed] April 17, 2012. The Court finds that the [appellant] has not
complied with the discovery and disclosure orders made on January 3, 2012,
and no legal grounds exist for his non-compliance.†As a result, Judge Gordon affirmed and
adopted the orders issued by Commissioner Loomis.
DISCUSSION
Appellant advances a host of
challenges to the orders issued by Commissioner Loomis and Judge Gordon, but we
cannot review them because we lack jurisdiction over this appeal.
Gordon’s December 18, 2012 order “was the final order for purposes of the
present appeal.â€
title="">[4] He is correct the December 18, 2012 order
modifying appellant’s child support obligation was an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(2);
Cal.App.4th 900, 906; County of Los
Angeles v. Patrick (1992) 11 Cal.App.4th 1246, 1250.) But he did not file a notice of appeal of
that order; instead, he filed his notice of appeal on July 19, 2012, nearly
five months earlier, identifying three prior orders.
California
Rules of Court, rule 8.104(d) permits us to entertain a premature notice of
appeal in only two circumstances:
“(1) A notice of appeal filed
after judgment is rendered but before it is entered is valid and is treated as
filed immediately after entry of judgment.
[¶] (2) The reviewing court may treat a notice of
appeal filed after the superior court has announced its intended ruling, but
before it has rendered judgment, as filed immediately after entry of
judgment.†Appellant’s notice of appeal
does not fall into either category because it was filed months before Judge
Gordon rendered a decision or even announced a ruling on respondent’s OSC to
modify child support. (
(2003) 108 Cal.App.4th 956, 960-961 (First
American) [refusing to treat notice of appeal from orders entering default
and denying motion to set aside entry of default as timely because they were
filed four months before default judgment was entered and before the default
prove-up occurred].) Thus, we may not
treat appellant’s July 19, 2012 notice of appeal as a premature appeal of
the December 18, 2012 order.
We
are left to consider whether appellant’s notice of appeal nevertheless
conferred jurisdiction over the orders he identified in his notice. Appellant’s notice included three partial dates
for orders, “4/12, 3/12, 10/11,†which the notice described as “Family Law
Orders After Hearing -- CCP 473(d),[
voidable orders common law cases.†It appears
appellant attempts to appeal the following orders: (1) the October 24, 2011 order in which
the court overruled his demurrer and ordered the parties to update their income
and expense reports; (2) either the March 15, 2012 order denying his
motion to reconsider the January 3, 2012 order granting respondent’s
motion to compel discovery, or the March 20, 2012 order requiring appellant
to pay $3,000 in attorney fees pursuant to Family Code section 271 related to
the January 3, 2012 order, or both; and (3) the April 17, 2012 order by
Judge Gordon affirming and adopting Commissioner Loomis’s March 20, 2012
order on attorney fees.
name="_ftnref6" title="">[6]
Even
if we assume these orders were appealable, appellant’s July 19, 2012
notice was untimely as to all of them. The
notice of appeal had to be filed at the earliest of: “(A) 60 days after the superior court clerk
serves on the party filing the notice of appeal a document entitled ‘Notice of
Entry’ of judgment or a file-stamped copy of the judgment, showing the date
either was served; [¶] (B) 60 days after the party filing the notice
of appeal serves or is served by a party with a document entitled ‘Notice of
Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof
of service; or [¶] (C) 180 days after entry of judgment.†(Cal. Rules of Court, rule 8.104(a)(1).) These deadlines apply to appealable orders as
well. (Rule 8.104(e).)
The
record does not indicate when appellant was served with the October 24,
2011 order, but even applying the longest deadline -- 180 days after entry of that
order -- the time to appeal expired on Monday, April 23, 2012.
The
clerk mailed a file-stamped copy of the January 3, 2012 order on January 6,
2012, so the 60-day deadline expired on Monday, March 5, 2012. (Code Civ. Proc., §§ 12, 12a.)
The
March 15, 2012 order denied appellant’s motion pursuant to Code of Civil
Procedure section 1008, subdivision (a), and when a party files a motion to
reconsider an appealable order pursuant to that section, the deadline to file
the notice of appeal is the earliest of “(1) 30 days after the superior court
clerk, or a party serves an order denying the motion or a notice of entry of
that order; [¶] (2) 90 days after the first motion to
reconsider is filed; or [¶] (3) 180 days after the entry of the appealable
order.†(Cal. Rules of Court, rule
8.108(e).) The record does not indicate
when this order was mailed, but appellant filed the motion to reconsider on January 17,
2012, and applying the 90-day deadline, the last day to appeal was Monday, April 16,
2012.
The
clerk mailed a file-stamped copy of the March 20, 2012 order on March 21,
2012, so the 60-day deadline expired on Monday, May 21, 2012. (Code Civ. Proc., §§ 12, 12a.)
Finally,
the clerk mailed a notice of entry of the April 17, 2012 order on the same
day, so the 60-day deadline expired on Monday, June 18, 2012. (Code Civ. Proc., §§ 12, 12a.)
In
his supplemental brief, appellant also identifies several orders entered after
he filed his notice of appeal, including Commissioner Loomis’s July 27,
2012 recommended findings and orders rejecting appellant’s argument the matter
was stayed pending appeal and requiring him to comply with the January 3,
2012 order; Judge Gordon’s August 20, 2012 minute order affirming and
adopting Commissioner Loomis’s July 27, 2012 order; and Commissioner
Loomis’s September 18, 2012 support order.
appellant did not file a notice of appeal as to them and we lack jurisdiction
to review them. (Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh
(2005) 131 Cal.App.4th 1342, 1352 [dismissing appeal as to appealable order
entered after notice of appeal was filed but for which no separate notice of
appeal was filed].) And for the reasons
discussed above, we cannot treat his notice of appeal as a premature appeal of
any of these orders. (
at pp. 960-961.)
Appellant
argues in his supplemental brief that all of the orders were appealable at any
time because they were void on various grounds.
However, the errors he identifies would have made the orders at most
voidable, which must be timely challenged.
(County of Los Angeles v. Harco
National Ins. Co. (2006) 144 Cal.App.4th 656, 661-662; see also
(2004) 33 Cal.4th 653, 660-661.) For
instance, respondent’s attorney’s alleged failure to file a substitution of
attorney pursuant to Code of Civil Procedure section 285 is a procedural error that
does not deprive the trial court of authority to issue orders or judgments. (In re
Marriage of Warner (1974) 38 Cal.App.3d 714, 720; Ross v. Ross (1953) 120 Cal.App.2d 70, 73-74.) The same is true for appellant’s attorney’s
unauthorized signing of the motion to compel under Code of Civil Procedure
section 128.7. Commissioner Loomis’s
alleged statutory disqualification for bias rendered any orders merely voidable
and subject to challenge only on timely writ review pursuant to Code of Civil
Procedure section 170.3, subdivision (d).
(People v. Barrera (1999) 70
Cal.App.4th 541, 549-550; see also PBA,
LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 970-971; Roth v. Parker (1997) 57 Cal.App.4th 542, 548 (Roth); Betz v. Pankow (1993)
16 Cal.App.4th 931, 939.)
name="_ftnref9" title="">[9] Finally, the trial court could not have violated
the automatic stay in Code of Civil Procedure section 916, subdivision (a)
after appellant filed his notice of appeal because that section only divests
the trial court of jurisdiction upon “the perfecting of an appeal,†and as demonstrated
above, appellant failed to perfect his appeal.
(Pazderka v. Caballeros Dimas
Alang, Inc. (1998) 62 Cal.App.4th 658, 666.)
DISPOSITION
The appeal is dismissed. Because no respondent has entered an
appearance in this matter, we decline to award costs on appeal.
FLIER,
J.
WE CONCUR:
BIGELOW, P. J. GRIMES, J.
name="_ftn1" title="">[1] Appellant is an
attorney. He represents himself in this
appeal, along with another attorney, Sana Z. Shah, and the law firm The Dorton
Firm.
name="_ftn2" title="">[2] That provision
states, “(a) A judge shall be disqualified if any one or more of the following
are true: [¶] . . . [¶]
(6)(A) For any reason: [¶] (i) The judge believes his or her recusal
would further the interests of justice.
[¶] (ii) The judge believes there
is a substantial doubt as to his or her capacity to be impartial. [¶]
(iii) A person aware of the facts might reasonably entertain a doubt
that the judge would be able to be impartial.
[¶] (B) Bias or prejudice toward
a lawyer in the proceeding may be grounds for disqualification.†(Code Civ. Proc., § 170.1, subd. (a)(6).)
