Filed 11/25/19 Dresser v. Hiramanek CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Santa Clara)

—-

WILLIAM C. DRESSER,

Plaintiff and Respondent,

v.

ADIL HIRAMANEK,

Defendant and Appellant.

C082936

(Super. Ct. No. 1-11-CV-212974)

This case and others involving Adil Hiramanek were originally filed in Santa Clara County Superior Court. We will refer to Adil by his first name for clarity, because his family members are involved in other cases. Adil was designated a vexatious litigant subject to a prefiling order under Code of Civil Procedure section 391.7. (See In re Marriage of Hiramanek (Aug. 23, 2012, H035887) [nonpub. opn.].) “[A] prefiling order . . . prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed.” (Code Civ. Proc., § 391.7, subd. (a).) Following initial proceedings in the Sixth Appellate District, various appeals, including this one, were transferred to this district.

William Dresser, an attorney, initiated this case by filing a complaint against Adil for attorney fees earned while representing Adil. In response, Adil requested an order from the trial court allowing him to file a cross-complaint. The trial court granted the request, but Dresser subsequently moved for an order requiring Adil to furnish security. (Code Civ. Proc., §§ 391.1, 391.3, subd. (b).) On June 12, 2013, the trial court granted Dresser’s motion, requiring Adil to furnish security in the amount of $75,000. The trial court further ordered that the failure to furnish security within 30 days would result in dismissal of the cross-complaint. The trial court also denied Adil’s motions to disqualify the trial judge (filed May 16, 2013), to consolidate this action with another action (signed May 23, 2013, but filed May 28, 2013), and to file a discovery motion by a vexatious litigant (signed May 29, 2013 but filed May 30, 2013).

Adil filed a notice of appeal citing judgments or orders purportedly filed on May 16, 28, and 29, and June 12, all in 2013. Above the preprinted language “NOTICE OF APPEAL,” on the form, Adil printed “OR WRIT REVIEW.” The notice of appeal indicated the appeal was from a judgment or “under [the] Collateral Order doctrine.”

After transfer of the appeal to this court, the docket reflects years of additional motions, petitions, and requests from Adil. On June 13, 2018, Adil filed another motion to augment the record or, in the alternative, request to take judicial notice of an order filed in the trial court on June 8, 2018, dismissing the cross-complaint for failure to furnish security. We will grant Adil’s June 13, 2018 motion.

Based on our review of the record and the briefing in this case, including arguments from the parties specifically addressing the issue of appealability, we conclude the appeal must be dismissed because Adil did not appeal from an appealable judgment or order.

DISCUSSION

Adil claims to be seeking writ review in addition to appellate review. But he did not file a petition for writ relief, which requires compliance with California Rules of Court, rule 8.486. Rule 8.486(a)(4) requires, among other things, that the petition be verified, but Adil’s notice of appeal was not verified. And although we have some discretion to treat an appeal as a writ proceeding, we decline to do so here. (See H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366.)

We now turn to the appealability of the trial court orders referenced in Adil’s notice of appeal. Adil claims the following orders were appealable: (1) the June 12, 2013 order requiring him to furnish security, which ultimately resulted in dismissal of the cross-complaint, (2) the May 28, 2013 order denying consolidation of this action with another action, (3) the May 29, 2013 order denying a request to file a discovery motion by a vexatious litigant, and (4) the May 16, 2013 order denying disqualification of the trial judge. We address each contention in turn.

I

Adil argues the June 12, 2013 order to furnish security, which ultimately resulted in dismissal of the cross-complaint, is appealable.

“[A] judgment is not final and not appealable when it decides the issues in a cross-complaint but not the issues in a complaint, unless the cross-complaint sought separate and independent relief by or against different parties, or the judgment or order on the cross-complaint leaves no issues to be determined as to one party. [Citations.]” (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4th 109, 132-133.)

Here, Adil and Dresser are the only two parties identified in the complaint and cross-complaint. Because both parties remain in the action on the complaint, the dismissal of the cross-complaint did not decide all issues between these two parties and there is no appealable final judgment.

Adil nevertheless relies on Golin v. Allenby (2010) 190 Cal.App.4th 616, 635 for the proposition that a dismissal is appealable. But that case does not help him, because unlike here, the dismissal in Golin resulted in a final judgment. Dismissal of the cross-complaint in this case did not result in a final judgment and thus the order is not appealable.

Adil further argues that a prefiling order or order declining to dissolve a prefiling order under Code of Civil Procedure section 391.7 is appealable as an injunction or order denying a motion to dissolve an injunction. (Luckett v. Panos (2008) 161 Cal.App.4th 77, 90 (Luckett).) But Adil is not appealing the prefiling order or a denial of a motion to dissolve the prefiling order. The prefiling order was affirmed on appeal in In re Marriage of Hiramanek, supra, H035887. The order from which Adil now attempts to appeal is an order to furnish security resulting in dismissal of the cross-complaint. Adil did not move to dissolve the prefiling order. As we have explained, the order to furnish security is not appealable.

Next, Adil asserts the order to furnish security is appealable under the collateral review doctrine. (Sarracino v. Superior Court (1974) 13 Cal.3d 1, 9.) But that doctrine applies only when the trial court’s order to make a payment is collateral to the litigation, such as an order to pay sanctions or attorney fees. (Ibid.) In this case, the order to furnish security is not an order to pay sanctions or attorney fees and is not collateral to the litigation.

Adil claims it is judicially inefficient to require the trial court to proceed to trial on the complaint and be required to try the cross-complaint later. But appealability is jurisdictional. If the order is not appealable, we do not have discretion to make it appealable. (Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 962.)

In another argument, Adil contends the Sixth Appellate District already decided the matter of appealability in his favor before transfer of the appeal to this district. He refers to an order of the Presiding Justice of the Sixth Appellate District reinstating Adil’s appeal after it had been dismissed as abandoned. It appears from the order reinstating the appeal that Adil’s attorney had filed an abandonment of the appeal without Adil’s approval. On Adil’s motion, the Presiding Justice of the Sixth Appellate District struck the filing of the abandonment and reinstated the appeal. Contrary to Adil’s contention, the order of the Presiding Justice of the Sixth Appellate District did not determine appealability; it merely reinstated the appeal after it had been abandoned without Adil’s consent.

The attempt to appeal the order requiring Adil to furnish security is unsupported by law.

II

Adil next argues the May 28, 2013 order denying consolidation of this action with another action was appealable. We disagree. An order denying a motion to consolidate actions is not an appealable order. (State Farm Mutual Automobile Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 432; see Code Civ. Proc., § 904.1.)

III

In addition, Adil claims the May 29, 2013 order denying a request to file a discovery motion by a vexatious litigant was appealable.

On May 15, 2013, Adil requested permission to file a “NOTICE AND DISCOVERY MOTION TO COMPEL, ADMISSIONS DEEMED ADMITTED, IMPOSE SANCTIONS; MEMORANDUM & DECLARATION IN SUPPORT.” On May 29, 2013, the trial court denied the request.

Adil argues the denial of the request is appealable as an order denying a motion to dissolve an injunction. (Luckett, supra, 161 Cal.App.4th at p. 90.) But Adil’s request was to file the discovery motion, not to dissolve the prefiling order. The order denying the request is not appealable.

IV

Moreover, Adil asserts the May 16, 2013 order denying disqualification of the trial judge was appealable. That is incorrect. An order denying a motion to disqualify a trial judge under Code of Civil Procedure section 170.6 is reviewable only by a petition for writ of mandate. It is not an appealable order. (People v. Hull (1991) 1 Cal.4th 266, 268.)

DISPOSITION

The motion to augment or, in the alternative, request to take judicial notice filed on June 13, 2018, is granted. The appeal is dismissed because it is not taken from an appealable judgment or order. Dresser is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

/S/

MAURO, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

MURRAY, J.