Filed 12/17/19 Marriage of Kinsella CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of TAMARA KINSELLA and KEVIN J. KINSELLA.

TAMARA KINSELLA,

Respondent,

v.

KEVIN J. KINSELLA,

Appellant.

D073822

(Super. Ct. No. D540396)

APPEAL from a judgment of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Dismissed.

Erik C. Jenkins for Appellant.

Ashworth Blanchet Christenson and Sharon Blanchet; Garrett C. Dailey for Respondent.

Appellant Kevin Kinsella appeals from the December 2017 denial of his motion to vacate prior orders of Justice Sheila Sonenshine (Ret.), a mediator with Judicial Arbitration and Mediation Services, Inc. (JAMS). The parties stipulated to her assignment to adjudicate this case in March 2013 and in April 2014 she recused herself in the interest of justice. This court reviewed the notice of appeal and requested the parties explain whether the order is appealable. We subsequently allowed the appeal to proceed but requested the parties brief the appealability issue further.

Kevin concedes the appealed-from order is not a final judgment, but contends we may treat it either as a collateral order or an extraordinary writ. Tamara argues we are without jurisdiction and must dismiss this appeal because Kevin did not file a petition for writ of mandate under Code of Civil Procedure section 170.3, subdivision (d) to challenge the court’s ruling on Justice Sonenshine’s disqualification. Tamara also moves for sanctions against Kevin for assertedly filing a frivolous appeal.

We conclude the order is not appealable. The only means to challenge an order regarding a judge’s disqualification under section 170.3 is by a writ petition. Kevin failed to file a writ petition, and has not presented us with any unusual circumstances to warrant our treating the appeal as an extraordinary writ. Accordingly, we dismiss Kevin’s appeal and deny Tamara’s motion for sanctions.

FACTUAL AND PROCEDURAL SUMMARY

Kevin and Tamara married in April 1997 and separated in May 2012. Tamara filed for divorce in December 2012.

In March 2013, the parties stipulated to let Justice Sonenshine preside over the dissolution proceedings as a privately compensated temporary judge, who would “have and exercise all powers and duties of a San Diego Superior Court Judge, including but not limited to those enumerated in [sections] 166, 167, 177, 177.5 and 187.” In February 2014, Justice Sonenshine issued a statement of decision awarding Tamara, among other matters, monthly temporary spousal support of $123,705, and $450,000 in attorney fees and costs.

In April 2014, Kevin filed a notice of appeal of Justice Sonenshine’s pendente lite orders (Case number D065753); however, he failed to pursue the appeal by filing an opening brief despite this court’s October 2014 letter advising him of the deadline to do so. Consequently, this court dismissed the appeal in November 2014.

On April 22, 2014, Kevin sought Justice Sonenshine’s recusal, asserting possible conflicts.

On April 29, 2014, Justice Sonenshine advised the parties that she would disqualify herself in the interest of justice. She explained that in March 2014, Kevin’s attorney, Erik Jenkins of the Fuller Jenkins law firm, appeared in a proceeding before her. Justice Sonenshine immediately disclosed to the parties her longstanding personal relationship with members of the Fuller family, in the event Kevin would seek her recusal, as he eventually did.

On May 1, 2014, Kevin filed a verified statement of disqualification under section 170.3. He admits he did not serve it personally on Justice Sonenshine as section 170.3, subdivision (c)(1) requires; instead, he served it on JAMS.

On May 7, 2014, Justice Sonenshine filed both a notice of recusal under section 170.3 and a “notice of completion,” stating that her assignment had ended with her recusal.

On May 15, 2014, Justice Sonenshine filed a “verified response to [Kevin’s] request for order to strike verified answer,” arguing it was moot as she had already recused herself.

On May 22, 2014, Kevin moved to strike Justice Sonenshine’s verified response.

On June 18, 2014, superior court Supervising Judge Maureen Hallahan denied Kevin’s motion as moot because Justice Sonenshine was recused and the matter had been reassigned. Judge Hallahan added that because Kevin’s statement of disqualification was “never properly served on [Justice Sonenshine] and, even if properly served, had become moot, at the latest, on May 8, 2014, there was no need or legal basis for [Justice Sonenshine] to respond to [Kevin’s statement of disqualification]. . . . [¶] [Justice Sonenshine’s] answer has no legal consequence, thus, [Kevin’s] request to strike the answer is denied as moot.” Kevin did not file a writ petition in response to that ruling.

In September 2017, Kevin filed a request to vacate Justice Sonenshine’s orders. He relied on Hayward v. Superior Court (2016) 2 Cal.App.5th 10 (Hayward) to argue that all of Justice Sonenshine’s orders “are void as a matter of law because [she] effectively conceded to [sic] the allegations in Kevin’s May 1, 2014 verified statement of disqualification. As a result, pursuant to [section] 170.3 [subdivision] (c)(4), her bias is deemed admitted for the purpose of establishing disqualification and the consequences thereof.” (Some capitalization and italics omitted.) Kevin claimed Justice Sonenshine was “deemed biased from the start of her work in this case. . . . Therefore, all of her orders are tainted and void and must be vacated as a matter of law, regardless of whether they were legally correct.”

In December 2017, in denying Kevin’s motion, Judge Oberholtzer concluded “Haywood does not apply . . . because Justice Sonenshine recused herself before [Kevin] filed his petition to disqualify, and [Justice Sonenshine] had no statutory obligation to do so.” The court rejected as unsupported Kevin’s argument that he was prejudiced by Justice Sonenshine’s rulings: “[Justice Sonenshine] issued the orders under consideration three months before she recused, and well before [Kevin] made the accusations that drew [her] into the dispute. [Her] February 5, 2014[ ] Statement of Decision does not reflect any animus toward [Kevin], nor does [his] other evidence of Justice Sonenshine’s apparent or actual state of mind [reflect animus].”

On February 2, 2018, Kevin filed a notice of appeal of Judge Oberholtzer’s order.

DISCUSSION

I. The Order Is not Appealable

The “existence of an appealable judgment is a jurisdictional prerequisite to an appeal.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Harrington-Wisely v. State of California (2007) 156 Cal.App.4th 1488, 1494; First Security Bank of Cal. v. Paquet (2002) 98 Cal.App.4th 468, 472.) As Kevin concedes, Judge Oberholtzer’s order denying the motion to vacate is not appealable. “As a general rule, orders denying a motion to vacate are not appealable, because any assertions of error can be reviewed on appeal from the judgment itself. To hold otherwise would effectively authorize two appeals from the same decision. [Scognamillo v. Herrick (2003) 106 [Cal.App.]4th 1139, 1146, . . . (quoting text); Payne v. Rader (2008) 167 [Cal.App.]4th 1569, 1576 . . . (disapproved on other grounds in Ryan v.Rosenfeld (2017) 2 [Cal.]5th 124, 134-135]” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2018) ¶ 2:169, p. 2-121.)

We reject Kevin’s request that we treat Judge Oberholtzer’s order as a collateral order. A recognized exception to the “one final judgment rule” under section 904.1 is that an interim order is appealable if it: 1) is collateral to the subject matter of the litigation, 2) is final as to the collateral matter, and 3) directs the appellant to pay money or the performance of an act by or against appellant. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297.) We recognize that the third factor is not always required. (See e.g. Muller v. Fresno Comm. Hosp. & Med. Ctr. (2009) 172 Cal.App.4th 887, 899.) Here, the order is not a collateral one. Instead, as noted, the gravamen of Kevin’s motion was that Justice Sonenshine’s underlying orders regarding temporary spousal support and attorney fees should be vacated because she was disqualified. As such, Judge Oberholtzer’s order denying Kevin’s motion relates to the merits of Justice Sonenshine’s ruling, and pertains to matters central to the dissolution proceedings. Moreover, Judge Oberholtzer’s order did not direct Kevin to pay money or the performance of any act by or against Kevin.

Although appellate courts have the discretion to treat an appeal from a nonappealable order as a petition for writ relief, and thus determine the merits of the challenged order, “we should not exercise that power except under unusual circumstances.” (Olson v. Cory (1983) 35 Cal.3d 390, 401; Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001, 1006; City of Gardena v. Rikuo Corp. (2011) 192 Cal.App.4th 595, 599, fn. 4.) In Olson v. Cory, the court treated an appeal as a petition for extraordinary writ to avoid unnecessary trial proceedings because the briefs and record on appeal were adequate, the appealability of the order was not clear, and all parties urged the court to reach the merits. (Id. at pp. 400-401.) Not all of these conditions are present here. Specifically, as noted, the underlying order is not appealable. Moreover, Tamara urges us to dismiss Kevin’s claim rather than reach the merits.

In Coronado Police Officers Assn., a case involving the statutory time limit in Government Code section 6259, subdivision (c), this court treated an improper appeal as a writ petition because extraordinary circumstances were present. (Coronado Police Officers Assn., supra, 106 Cal.App.4th at p. 1006.) But there, the petitioner police officer’s association had “filed the notice of appeal within the statutory time period for seeking writ review.” (Ibid.) Thus, there was no jurisdictional impediment in that case to appellate review of the trial court’s order.

Here, Kevin presents no extraordinary or compelling reason for us to consider his appeal as a writ petition. He merely argues that the Hayward decision presents novel issues relevant to this case; public policy requires that impartial judges hear cases and that judges comply with the disqualification statutes; and Justice Sonenshine’s order continues to produce harsh results for him. We reject these arguments.

Kevin requests this court issue an order vacating all of Justice Sonenshine’s orders. He maintains the facts he set forth in his statement of disqualification of Justice Sonenshine ” ‘must be taken as true’ for purposes of establishing the basis for disqualification and the consequences thereof.” In light of the gravamen of Kevin’s September 2017 motion, we construe it as a belated challenge to Justice Sonenshine’s disqualification. But it was ineffective because he was required to file a writ petition under section 170.3, subdivision (d), which states: “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding. The petition for the writ shall be filed within 10 days after service of written notice of entry of the court’s order determining the question of disqualification. If the notice of entry is served by mail, that time shall be extended as provided in subdivision (a) of section 1013.” (See People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 802 [a writ is the exclusive means for seeking review of a ruling on a peremptory challenge to a judge]; People v. Hull (1991) 1 Cal.4th 266, 275 [“The Legislature, through section 170.3 [subdivision] (d), has specifically determined that a writ of mandate shall be the exclusive means of challenging a denial of a motion to disqualify a judge”].)

Judge Hallahan’s June 18, 2014 order triggered the beginning of the maximum 15-day period (10 days plus five days for mail notice) for Kevin to file a writ petition. (Schmidt v. Superior Court (1989) 207 Cal.App.3d 56, 60 [superior court clerk’s mailing of copy of minute order to parties was sufficient to commence running of statutory time period for filing writ under then section 437c, subdivision (l)]; Sturm, Ruger & Co. v. Superior Court, supra, 164 Cal.App.3d at p. 582 [same].)

The 10-day period within which to file the writ petition shall be extended by five calendar days if the notice is served by mail. (§ 1013 subd. (a).) Such legislatively prescribed statutory deadlines are mandatory and jurisdictional. (See In re Antilia (2009) 176 Cal.App.4th 622, 630 [“A time limit prescribed by the Legislature for filing a petition for writ of mandate is jurisdictional”]); e.g., Eldridge v. Superior Court (1989) 208 Cal.App.3d 1350, 1352 [then 10-day statutory time limitation for filing a petition for extraordinary writ review of an order summarily adjudicating issues is jurisdictional]; Abadjian v. Superior Court (1985) 168 Cal.App.3d 363, 369 [same]; Sturm, Ruger & Co. v. Superior Court (1985) 164 Cal.App.3d 579 [same]; Bensimon v. Superior Court (2003) 113 Cal.App.4th 1257 [20-day statutory time limit in section 437c, subdivision (m)(1) to file peremptory writ is jurisdictional and not extended by a motion for reconsideration].) Thus, if a writ petition is not filed within the time limit, we are without power to review the merits of the trial court’s ruling.

Kevin waited until September 2017, more than three years after the June 2014 order, to file not a writ petition but the underlying request for a court order. “Where a party fails to file a writ petition within the statutory time limit . . . , and where that party further fails to request an extension of time for filing the writ petition from the superior court, the failure to file the writ petition even by a single day is fatal because the time limits for writ review are jurisdictional.” (People v. Superior Court (Brent) (1992) 2 Cal.App.4th 675, 681-684 [addressing 30-day time limit to file a petition for writ under Health & Safety Code section 11488.4, subdivision (h)].)

II. Sanctions for Frivolous Appeal

Tamara has requested we sanction Kevin for causing her to defend this assertedly frivolous appeal. We conclude that sanctions are not warranted on this record.

In In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650, the California Supreme Court “set forth two alternative tests for determining a frivolous appeal. The first test is subjective: Was the appeal prosecuted solely for an improper motive, such as to harass the respondent or delay the effect of an adverse judgment? [Citation.] . . . [¶] The second strand of Flaherty is objective: Was the appeal so indisputably without merit that any reasonable attorney would agree it was totally devoid of merit?” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1766, 1773.) “The two standards are often used together, with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay.” (Flaherty, supra, at p. 649.)

As to the subjective test, we conclude there is insufficient evidence to show Kevin filed this appeal to harass Tamara or for another improper motive. Nothing indicates the appeal has delayed Kevin’s payment of the temporary spousal award or fees and costs that Justice Sonenshine ordered. As to whether the appeal is totally lacking in merit, we conclude it is not, as it raised the colorable issue of whether Judge Oberholtzer’s order was a collateral one, and if so, what bearing, if any, the Haywood case has here. We also keep in mind that sanctions should be imposed sparingly “so as to avoid a serious chilling effect on the assertion of litigants’ rights on appeal.” (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) We therefore decline to impose sanctions.

DISPOSTION

The appeal is dismissed. The request for sanctions is denied. Tamara Kinsella is awarded costs on appeal.

O’ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.