Filed 1/9/20 Marriage of Richards CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of ALICIA MARIE and RYAL W. RICHARDS.

ALICIA MARIE RICHARDS,

Appellant,

v.

RYAL W. RICHARDS,

Respondent.

G056626

(Super. Ct. No. 15D009634)

O P I N I O N

Appeal from postjudgment orders of the Superior Court of Orange County, Andre De La Cruz, Judge. Affirmed in part and reversed in part.

Alicia Marie Richards, in pro. per., for Appellant.

Law Offices of Kevin E. Robinson and Kevin E. Robinson for Respondent.

This is the second appeal we have considered arising out of the marital dissolution action between Alicia Marie Richards (Wife) and Ryal W. Richards (Husband) and Wife’s efforts to stop the sale of the family’s residence (the Property). In Wife’s first appeal (In re Marriage of Richards (Jan. 9, 2020, G055927) [nonpub. opn.] (Richards I)), we rejected her assertion the court erred in refusing to set aside a stipulated judgment. This appeal concerns two postjudgment orders dated June 15, and July 10, 2018. The first order concerns Wife’s efforts to stay enforcement of the judgment, and the second order concerns the trial court’s sanction order in response to Wife’s troublesome and burdening litigation tactics. Wife raises 15 arguments concerning these orders, and after careful consideration, we determined her contentions regarding the June 15, 2018, order lack merit. We affirm this order. However, we reverse the July 10, 2018, order and remand the matter for further proceedings.

DISCUSSION

We incorporate the underlying facts and procedural history discussed in greater detail in Richards I. Because this appeal concerns two distinct postjudgment orders, we will summarize the facts relevant to each order within our analysis of those orders.

I. June 15, 2018, Order

A. Underlying Facts & Procedural History

On May 25, 2018, the trial court held a hearing and granted Wife’s motion to stay enforcement of the judgment pending the appeal in Richards I. In its minute order, the court determined Husband would be “severely prejudiced” by the stay and ordered Wife to pay a $225,000 undertaking within 30 days. (See Code Civ. Proc., § 917.4.) However, at the end of the minute order, the court vacated the $225,000

undertaking and scheduled another hearing to decide the amount of the undertaking. On the record, the trial court stated the amount of the undertaking would be fixed at a later hearing scheduled for June 15, 2018.

Wife asserted she filed a motion to waive not fix the undertaking/bond under section 995.240 [waiver of bond due to indigency]. However, her record citation directs us to her “responsive declaration to request for order” supported by a separate “reply declaration” in support of an “order fixing the amount of security” filed June 6, 2018. (Capitalization omitted.) This was not a motion to waive the bond under section 995.240.

In her declaration, Wife asserted the $225,000 bond was excessive. She presented an appraisal, photographs, and other evidence showing the Property was being well cared for. She asked the court to consider, pursuant to section 995.210, her payment of the mortgage, insurance, and upkeep “as an undertaking that satisfies the requirements for the bond that may be given in its place with the same effect as if the bond were given.” In other words, Wife’s motion did not suggest a complete waiver but rather that the court order replacement of the bond/undertaking requirement with her promise to continue paying household expenses, the mortgage, and insurance.

Husband’s response to this motion was to argue the undertaking should be higher because of the risk the real estate market will weaken and the Property could depreciate in value. Husband estimated the Property’s current equity exceeded $600,000. He argued the undertaking should cover this equity plus the cost to protect against Wife’s failure to pay the mortgage totaling approximately $220,000, taxes, insurance, and maintenance costs. He requested the undertaking/bond be increased to $600,000.

Two days before the hearing, on June 12, 2018, Wife filed a “declaration of indigency [sic] and request for [the] bond to be waived” pursuant to section 995.240. (Capitalization omitted.) The declaration was supported by Wife’s income and expense declaration. Wife stated she was unemployed but received income from a small eBay business. She claimed to receive government medical insurance and she had applied for food stamps because Husband had not paid court ordered spousal or child support in several months. She submitted proof she qualified for fee waivers in the trial and appellate courts. She complained Husband was showing the court outdated pictures, taken when she was forced to move everything from storage into the house. She requested the court waive the bond requirement “and in its place consider the payments made on the mortgages, insurance and upkeep as a bond.” (Italics added.)

The day before the hearing, Husband filed an opposition that discussed evidence refuting Wife’s claim of indigence. He claimed Wife was renting out rooms and receiving income. In addition, he presented evidence showing Wife received over $200,000 from a trust fund.

At the hearing on June 15, 2018, the trial court heard argument from both parties. The minute order contained the following ruling: “This [c]ourt has already granted [Wife’s] stay pending appeal. This stay was originally subject to imposing an undertaking of $225K . . . . [Husband’s] opposing pleadings requested a bond of $600K, plus requir[ing Wife] to make the mortgage payments, pay taxes and maintenance.

“[Wife] filed a [r]eply on [June 6, 2018], citing [section] 995.210, stating that she “‘agrees’” to [Husband’s] contentions. It is unclear if [she] clearly understands what [Husband] is requesting. [Section 995.210, subdivision (b), provides,] . . . ‘(b) If a statute provides for an undertaking, a bond that otherwise satisfies the requirements for the undertaking may be given in its place with the same effect as if an undertaking were given, and references in the statute to the undertaking shall be deemed to be references to the bond.’ [¶] It appears that [Wife] thinks that [Husband] seeks only for her to maintain the mortgage, taxes, liability insurance [and] maintenance, in lieu of posting an undertaking. [¶] The [c]ourt’s understanding of [Husband’s] opposition is that [he] wants [Wife] to post an undertaking of $600K plus maintain the mortgage, taxes, liability insurance and maintenance.”

In the minute order, the court rejected Husband’s complaints regarding “‘hoarding.’” The court stated the photographs did “not give the impression [Wife] is a ‘hoarder’ [but rather] . . . give the impression that the house was well kept, and that no waste or depreciation of the property caused by [Wife’s] negligence is occurring.”

The order contained the court’s conclusion there was no information presented that would cause it to change the previous order concerning the undertaking. “The [c]ourt has considered whether to apply [section 995.210, subdivision (b),] to this case, but finds that even if [Wife] continues payment of the mortgage, property taxes, liability insurance, and maintenance, [Husband] or, in this case, the ‘out spouse’ is being prejudiced by an unpredictable housing market with fluctuating prices. Thus the [c]ourt will NOT give those payments the same effect as if an undertaking were given to satisfy the bond.” It also stated, “To be very clear, [Wife] was given a full and fair opportunity to be heard on her motion, and the [c]ourt considered all of the arguments advanced by the parties.”

B. Applicable Law

“[T]he purpose of an undertaking is to protect the judgment while the appeal is pending. [Citations.] The security typically takes the form of a bond or undertaking from a personal or corporate surety; however, it may also consist of a deposit of cash or negotiable securities.” (Moore and Thomas, Cal. Civil Practice & Procedure (Nov. 2019) Stay of Enforcement, § 36:13.) Appeal bonds and undertakings are governed by the Bond and Undertaking Law. (§§ 995.010 et seq.)

Section 995.190 defines an undertaking as “a surety, indemnity, fiduciary, or like undertaking executed by the sureties alone.” Section 995.140, subdivision (a) defines a bond as either a “surety, indemnity, fiduciary, or like bond executed by both the principal and sureties” or “a surety, indemnity, fiduciary, or like undertaking executed by the sureties alone.” Therefore, a bond can be either (1) an instrument executed by both appellant and the surety or sureties, or (2) an instrument executed only by the surety or sureties. In the latter case, it is essentially the same as an undertaking. Section 995.210 recognizes this and provides the terms bond and undertaking can be used interchangeably, and therefore either a bond or an undertaking can be used to obtain a stay. (See Moore and Thomas, Cal. Civil Practice & Procedure, supra, § 36:13.) Alternatively, an appellant may deposit cash “with the officer” in lieu of a bond/undertaking. (§ 995.710.)

“A surety or guarantor is one who promises to answer for the debt, default, or miscarriage of another, or hypothecates property as security therefor.” (Civ. Code, § 2787, italics added.) Accordingly, an appellant cannot act as her own surety, because by definition a surety promises to answer for the debt of another. Similarly, Wife’s promise to pay household bills to third parties is not an acceptable alternative to a surety or grantor’s promise to answer for Wife’s debt via a bond/undertaking.

When a judgment concerns the sale of real property, section 917.4 provides, “The perfecting of an appeal shall not stay enforcement of the judgment . . . unless an undertaking in a sum fixed by the trial court is given . . . .” The statute “requires an undertaking to insure that ‘the appellant or the party ordered to sell, convey or deliver possession of such property’ will not commit waste.” (Estate of Murphy (1971)

16 Cal.App.3d 564, 568, italics omitted (Murphy).) The undertaking must be sufficient to cover (1) “the damage suffered by the waste and the value of the use and occupancy of the property,” or (2) “the part of it as to which the judgment or order is affirmed, from the time of the taking of the appeal until the delivery of the possession of the property;” or (3) if the judgment directs a sale of the property “and the payment of any deficiency, the undertaking shall also provide for the payment of any deficiency.” (§ 917.4.)

C. Analysis

Wife did not appeal from the court’s May 25, 2018, order staying enforcement of the judgment on the condition Wife pay an undertaking. Rather, she appeals from the court’s June 15, 2018, order fixing the amount of the undertaking to be $225,000. However, Wife’s briefing focuses on arguments relating to the court’s refusal to waive the undertaking requirement ordered in May 2018. As we will discuss, the issues of waiver and reduction are not the same. We find no error because the court lacked authority to waive the undertaking/bond in this case after granting Wife’s motion to stay enforcement on the condition she pay an undertaking. Wife’s arguments regarding error in refusing to reduce the amount lack merit.

We begin with the issue of waiver. In this case, the court bifurcated the issue of fixing the amount of the undertaking from the rest of the section 914.7 motion. Because the court ordered a conditional stay, dependent on the filing of an undertaking, Wife’s subsequent motion to waive the undertaking was untimely. The court had already ordered the undertaking. The only remaining issue before the court was the amount. The trial court could have denied Wife’s motion to waive the undertaking for this reason.

Moreover, we conclude the court would have lacked authority to waive the undertaking/bond required by section 917.4. A bond waiver for indigency is not automatic in all circumstances. Section 995.240 codifies only common law authority to waive a bond. (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 740 & fn. 9.) The statute provides: “The court may, in its discretion, waive a provision for a bond in an action or proceeding and make such orders as may be appropriate as if the bond were given, if the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties, whether personal or admitted surety insurers. In exercising its discretion the court shall take into consideration all factors it deems relevant, including but not limited to the character of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived.” (§ 995.240, italics added.) The Legislature appropriately recognized that waiver for indigency will not be possible in all proceedings. After all, “‘the codes provide for more than 500 different bonds and undertakings, each governed by similar but not identical procedural statutes.’” (Walt Rankin & Associates Inc. v. City of Murrieta (2000) 84 Cal.App.4th 605, 617.)

The character of this action precludes a bond waiver for indigency. Wife filed a motion to stay enforcement of the judgment during appellate proceedings. By initiating these proceedings, Wife understood an undertaking was required to stay a judgment directing the sale of real property. (§ 917.4.) We are aware of only one exception to this statutory provision. A trial court may temporarily stay enforcement of any judgment without an undertaking pursuant to section 918, subdivision (a), unless the adverse party consents to additional time.

The statute provides: “If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed.” (§ 918, subd. (b).) Because a party has 60 days to file an appeal (Cal. Rules of Court, rule 8.104), and section 918 provides an additional 10 days, we conclude the Legislature authorized the trial court to stay enforcement of the judgment for no longer than 70 days without requiring an undertaking.

Here, Wife’s waiver motion was filed more than 70 days after the judgment was filed. We found no statutory or case authority permitting the trial court to waive the undertaking requirement when in section 918 the Legislature expressly provided the court lacked authority to stay enforcement of the judgment beyond 70 days without either the adverse party’s consent or the submission of an undertaking/bond.

Turning next to the issue of whether the undertaking was set too high, the record shows the court decided the amount should be $225,000, because this sum represented half of the $450,000 Husband would have received under terms of the stipulated judgment. The court rejected Husband’s request for a $600,000 bond, as well as Husband’s assertion Wife was a hoarder and there was the added risk Wife would damage the property while living there. In its ruling, the trial court explained it fixed the amount of the undertaking because of the risks associated with an unpredictable housing market and fluctuating prices.

Wife does not suggest why this reasoning was faulty or what factors would justify a reduction of the court’s $225,000 calculation. She does not suggest an amount she considers reasonable. Instead, all of her arguments focus on why the court should have waived the undertaking. As discussed above, the terms waiver and reduction are not interchangeable, and we have determined the court lacked authority to waive the statutorily mandated undertaking requirement to stay execution of a judgment directing the sale of real property.

We conclude the trial court did not abuse its discretion in fixing the undertaking at $225,000. Because the value of the property at issue was subject to diminution in value during the appeal due to economic factors unrelated to Wife’s use of the property, Husband reasonably needed some minimal level of protection. “Equity demands that, as between respondent and appellant, the appellant who seeks the stay should assume the risk. [Citation.]” (Murphy, supra, 16 Cal.App.3d at p. 568.)

D. Wife’s Other Arguments Supporting Reversal

1. Speculation About Waste

Wife asserts a bond under section 917.4 should only be required if the value of the property “is subject to diminution during the appeal.” Without the benefit of supporting case authority, Wife maintains the court was required to evaluate the diminution in value based on the potential for waste, i.e., damage to the property. Wife contends, “The Legislature never intended for an appealing party to bear anything more than the risk of the value of the property being diminished.” In light of the above legal analysis, Wife vehemently argues there was no evidence to support Husband’s claim she was a hoarder who would damage the property. She concludes the court must have speculated the potential waste would amount to $225,000 when fixing the amount of the undertaking. Moreover, she complains Husband illegally obtained banking records, and there was no proof to refute her claim of indigency.

These contentions lack merit because diminution in value can be measured by factors other than waste. As stated by the trial court, the value of the property may decrease during the pendency of the appeal due to a downturn in the real estate market. Wife presents no reasoned argument why economic factors unrelated to the parties, such as interest rates and consumer demand, could not be considered by the trial court in fixing the amount of the undertaking. We find no error.

2. Application of Section 918.5

Wife asserts relief was required under section 918.5. This provision allows the trial court to stay enforcement of a judgment if “the judgment debtor has another action pending on a disputed claim against the judgment creditor.” (§ 918.5.) The statute requires the court to exercise its discretion and consider several factors, such as the likelihood of the judgment debtor prevailing in the other action, and how the amount of the judgment compares to the probable recovery by the judgment debtor.

Wife asserts there are two actions pending against Husband. She anticipates the family law court will hold Husband in contempt because he violated court orders to pay spousal support. She was also confident she will prevail in the tort action she recently filed against him. Because of these pending actions, Wife concludes the trial court abused its discretion in failing to consider the factors outlined in section 918.5.

We disagree for several reasons. First, Wife’s motion to stay enforcement of the judgment was based on section 917.4, not section 918.5. She provides a few record citations that purportedly show she moved for relief under section 918.5, however those citations refer to her “objection and reply” to Husband’s opposition of her section 917.4 motion.

In her objection, Wife made the following two assertions: (1) “I have a claim filed against [Husband’s] equity in the [p]roperty. See [section] 918.5 where the trial court can stay enforcement of a judgment if the judgment debtor has another action pending on a disputed claim against the judgment creditor” and (2) “I have filed a lis pendens on [Husband’s] equity in the [p]roperty. Pursuant to [section] 918.5, [subdivision] (a), the trial court may stay enforcement if another action is pending on a disputed claim.”

These general assertions, raised for the first time in Wife’s reply brief, did not adequately put Husband or the court on notice that Wife was requesting relief under section 918.5, in addition to section 917.4. As noted by Wife in her briefing, section 917.4 requires that the trial court consider several factors such as the probability of prevailing and the expected amount of recovery. Wife’s reply brief did not discuss any of these factors. Moreover, arguments raised for the first time in a reply brief are untimely and may be disregarded. A trial court need not consider an issue the opposing party was not given an opportunity to address.

In addition to the above, Wife’s claim on appeal fails because she did not discuss whether she would have prevailed if the trial court had considered the multiple factors outlined in section 918.5. “When a matter is left to the discretion of the trial court, on appeal we apply the abuse of discretion standard of review. [Citation.] Under that standard, there is no abuse of discretion requiring reversal if there exists a reasonable or fairly debatable justification under the law for the trial court’s decision or, alternatively stated, if that decision falls within the permissible range of options set by the applicable legal criteria. [Citations.] . . . We reverse the judgment only if in the circumstances of the case, viewed most favorably in support of the decision, the decision exceeds ‘the bounds of reason’ [citation], and therefore a judge could not reasonably have reached that decision under applicable law. [Citations.] It is the appellant’s burden on appeal to show the trial court abused its discretion. [Citation.]” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957 (Cahill).) She did not meet this burden.

4. Relevance of Homeowner’s Insurance

Wife asserts the order fixing the undertaking at $225,000 must be reversed because the court erred when it “stated that the $400,000 insurance covering the property was not relevant as to the setting and/or waiving of the bond.” She asserts the court abused its discretion by not considering the insurance policy.

We deem this argument waived because Wife does not provide a record reference to support her assertion the court made any statements about property insurance. “Each brief must . . . [¶] [¶] (C) Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears” (Cal. Rules of Court, rule 8.204(a)(1).) “‘The appellate court is not required to search the record on its own seeking error.’ [Citation.] Thus, ‘[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived. [Citation.]’ [Citations.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu).)

5. Wife’s Request for Judicial Notice

In support of Wife’s motion to stay enforcement of the judgment pending appeal, Wife filed a request for judicial notice (RJN) of Husband’s purported felony conviction for defrauding elderly people. She complains the trial court abused its discretion by failing to rule on her RJN or consider Husband’s criminal history. Assuming for the sake of argument evidence of a conviction would be relevant to Wife’s motion, we conclude the documents included in the RJN do not indicate Husband was convicted of a crime.

As part of the RJN, Wife asked the court to take judicial notice of a criminal “case summary” showing that in 1995 Husband was charged with conspiracy to commit wire fraud and mail fraud (count 1) and wire fraud affecting a financial institution/aiding and abetting (count 2). The document indicates Husband’s custody status was “released.” The document shows Husband was charged with two crimes, but nothing suggests Husband was convicted or sentenced for these offenses. The RJN also contains a news article discussing the wire fraud case, and reports Husband was “arrested and brought to federal court.” Again, an arrest is not the same thing as a conviction. Moreover, Wife does not explain why evidence of an arrest, without a conviction, would have any relevance in this case. “‘Appellate briefs must provide argument and legal authority for the positions taken. “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”’ [Citation.] ‘We are not bound to develop appellants’ argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.’ [Citations.]” (Cahill, supra, 194 Cal.App.4th at

p. 956.)

In a different section of her brief, Wife argues the court abused its discretion by not considering her RJN of her pending lawsuit against Husband, which related to her section 918.5 argument. This claim is waived because Wife’s argument does not mention when she purportedly made this RJN, and she does not support the argument with a record reference citing the “volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1); Nwosu, supra, 122 Cal.App.4th at p. 1246.)

II. July 10, 2015, Order

A. Underlying Facts & Procedural History

As mentioned above, on May 25, 2018, the court granted Wife’s motion to stay enforcement of the judgment pending her appeal. In addition, the court, on its own motion, issued an Order to Show Cause (OSC) regarding sanctions against Wife. In the minute order, the court noted Wife was “admonished not to continually interrupt.” In addition, the court listed 16 filings (motions, ex parte request, objections, oppositions, replies, and RJNs). Wife filed 11 matters during just one month (April 2018). The minute order noted, “[Wife] shall be prepared to advise [the c]ourt why the numerous filings were necessary, which ones she is requesting to withdraw, and why sanctions should not be issued.” The court scheduled the OSC for June 28, 2018.

The reporter’s transcript for that hearing shows the court told Wife that she had “inundated” the court with multiple filings. It stated, “At this point, you are absolutely a vexatious litigant. I don’t need to hear from you. In light of your practice to make literally hundreds of pages of filings with this [c]ourt[,] inundating this [c]ourt[,] and taking the time, pretty much this entire week, every free time I had, I had to read documents in connection with [this] matter. [¶] In light of your history and of your practice, the [c]ourt is going to set an OSC re sanctions pursuant to . . . [sections] 128.5 and 128.7, [subdivision] (c) . . . on the [c]ourt’s own motion. We will set a date . . . upon which time you will have an opportunity to defend your actions, and in the interim between now and the next time we see you, I will give you an opportunity to

withdraw . . . any and all objections, responses, motions, pleadings, filings, requests.

[¶] . . . Or you can pick and choose whatever you want to withdraw. I’ll give you an opportunity to fix it. If you don’t fix it, then we will proceed on your OSC re sanctions, up to and including that every time you file a document and [Husband] has to come into court, you will be paying his attorney[] fees every single time. [¶] Do you understand that? I just need a ‘yes’ or a ‘no.’”

Wife replied she did not understand because Husband filed many motions and objections as well. She asked if the court was saying all further proceedings needed to be verbal rather than in writing. The court replied, “I didn’t say it would all be verbal, and I’m not deeming you a vexatious litigant yet. This will be the first stop. If you continue to file things frivolously in bad faith for the intent to drag things out on multiple fronts, then I will deem you a vexatious litigant. At the time you are deemed a vexatious litigant, you will not be allowed to file a single piece of paper in this court without getting authorization from the presiding judge of the Orange County Superior Court. We’re not going to get there yet. Okay. That’s sort of jumping way to the end. [¶] I’m giving you an opportunity to fix it, and this is a warning. Take it as a warning. You will have an opportunity to fix it.”

At the hearing on June 28, 2018, Wife stated she thought it was “interesting” she was being asked to defend her actions, but Husband, who had intentionally misled the court and violated orders, was not being questioned. She accused Husband and his counsel of harassing her because they knew she was representing herself. She noted the court had not ruled on Husband’s counsel’s abusive litigation tactics but the state bar was taking the matter seriously. Wife stated she was sure all her pleadings were not excessively long and they all had merit. Wife explained she sometimes had to refile documents after continuances. She was willing to withdraw one motion to strike because Husband agreed to withdraw his objection to her witness and exhibit lists. She offered to withdraw her motion to strike Husband’s reply declaration and opposition to the ex parte to impute income. She asked, “[I]f I withdraw my ex parte motion, not the actual motion, then his reply would go away too . . . . [¶] So that would make you happy then. Those two documents would be gone.”

The court told Wife the issue was not about what would make it happy. When Wife brought up the unfounded allegations about her hoarding, the court reminded Wife, “Did you hear what I said at the last hearing when you were here? And I said the [c]ourt does not deem you a hoarder; do you remember that?” Wife said she remembered and she was unwilling to withdraw motions because Husband was allowed to keep his motions. Wife said she would withdraw her RJN of family photos filed on June 12.

The court asked if there would be any benefit to a face to face meeting between the parties. Wife and Husband’s counsel each indicated a meeting would not be fruitful due to the high level of animosity. The court admonished both parties to stop calling each other names and complete the divorce proceedings.

The court asked the parties when they would be available to meet with an “OC Human Relations” mediator to address their dispute. The court told Wife she was facing severe sanctions and she was given an opportunity to withdraw some of her filings. It decided to give Wife a “second shot” and meet with the mediator and “have a fruitful, meaningful meet and confer with counsel and a third party present to see which, if not all, of these filings can be withdrawn.” It added, “I’m not making any decisions today, but I’m telling you that I’ve already taken a step back from deeming you a vexatious litigant. We’re taking baby steps, but we’re marching towards that end, if things don’t change; is that clear?” The court noted there was evidence Wife was delaying matters, by seeking continuances in the trial court and with her appeal. Wife disagreed, saying she was overwhelmed with the case and caring for her daughter.

After considering more argument from the parties, the court stated the following: “So it sounds to me that one of the issues that is clouding the party’s ability to actually negotiate and get things done is, like I said, personal animosity, hatred. You may hate each other, but that animus is clouding your ability to negotiate. [¶] . . . [I] hear it from both sides. So what I’m going to do is I’m going to make an order effective today in this case. There will be no pleadings, no filings, no motions, and no requests that make reference to any ad homonym attacks of the other party absent good cause that is to be sought by the court prior to filing, and that request to set aside this order will be made on a one-page pocket brief.” The court specified there will be no further references to prostitutes, fraud, hoarders, liars, criminals, felonies, and misdemeanors. The court also ordered the parties to meet with a mediator.

At the next hearing on July 10, 2018, the parties told the court they were unable to arrive at any agreement with the third party mediator earlier that morning. The court’s minute order contains the following findings: (1) Wife was admonished to stop interrupting the court or she would be held in contempt; (2) both parties were given adequate time to prepare for the hearing; (3) Wife’s request for a statement of decision under section 2127 was denied because the rule does not apply to an OSC regarding sanctions; (4) Wife’s “numerous filings have been in bad faith to cause delay[;]” (5) the “[c]ourt will [s]anction [Wife] by ordering her to pay any and all attorney fees that [Husband] incurs from this point on for [her] filings that initiate a [r]esponse or [r]eply by [Husband’s] counsel[;]” and (6) Husband’s motion to quash is granted.

At the hearing, the court asked Wife to justify the legal basis for 16 pending filings, nine of which were filed in a three day period in April 2018. Because the hearing was lengthy, we have endeavored to group the motions by topic.

Wife filed two replies and a motion to strike related to Husband’s objection to her list of exhibits and witnesses. The court found these two filings were moot and frivolous.

There were eight filings related to Wife’s motion to impute income. She filed an ex parte to shorten time, two separate objections/motions to strike opposition to the ex parte request, two separate objections to evidence Husband submitted regarding his income, RJNs relating to Husband’s criminal history and her separate lawsuit against him, a reply to Husband’s opposition to the RJNs, and a reply to Husband’s opposition to the motion to impute income. The court determined only the last filing was permissible and the rest were frivolous and made in bad faith.

The court determined Wife’s motion to vacate the judgment, and reply to Husband’s opposition, were valid motions but stayed pending appeal. However, Wife’s RJN relating to that motion was frivolous. The remaining filings related to Wife’s three responses to Husband’s objection to her exhibit/witness lists and two objections to Husband’s declaration to modify support and have the clerk sign the listing agreement. The court determined these filings were either moot or frivolous.

During the hearing, Wife continually interrupted the court. She accused the court of being “mean” to her and not listening to her objections. For example, when the court reached the seventh motion on the list, Wife stated she was “dizzy.” The court noted, “I’ve given you a month and a half to prepare for today’s hearing, ma’am.” Wife replied, “I’m doing the best I can. I know you don’t like me and you are being mean to me.” The court told Wife that she made this claim every hearing and its questions were not personal but have “to do with your abuse of this court system.” And when the court attempted to rule on the matter, Wife interrupted several times. The court admonished her to stop, stating, “I’m ordering you to stop interrupting me. [Wife] you interrupt me one more time and I will hold you in contempt of court; do you understand?” She replied, “Not really but okay.” The court clarified, “[Wife], look at me. You keep interrupting me and it’s incredibly rude, and I’m trying to be patient and dignified as possible, but when you interrupt me . . . it’s very rude, and I’m trying to get this done as soon as possible because I have people waiting right behind you, okay?”

When the court asked Wife about the final two filings, she orally requested a statement of decision and said she would be filing an appeal. The court replied, “Appeal of what? I haven’t made a ruling.” Wife replied she knew the court would rule against her because it was saying all her filings were frivolous “although I don’t see it that way.” The court did not respond to Wife’s comments and instead made the following ruling: “[T]his [c]ourt has given you . . . adequate notice and opportunity to be heard pursuant to an OSC re sanctions under [sections] 128.5 and under 128.7. [¶] Having gone through all of your filings, which have amount[ed] to no less than, I believe, 13, and hundreds of pages of documents, the [c]ourt will sanction you from now on on every single filing that you make with this court that requires [Husband] to come to court. [¶] You will be paying for any and all of his attorney[] fees and costs related to anything connected to your filing effective today, [July 10, 2018]. [¶] So if you initiate a document that requires for him to oppose, you will be paying his attorney[] fees. That should make you think very long and very hard as to whether you need to file something with the [c]ourt. [¶] I have had enough here, frankly, to deem you a vexatious litigant, but we’re not jumping there yet. We’ll see if this gets things under control with all of your filings. If it doesn’t, then we’ll take it to the next step. But for now, every single document that you file with the [c]ourt that requires any action in response to your filing by [Husband], you will be paying his attorney[] fees and costs. [¶] Now, I know you’re going to tell me that you don’t have any money, but I also know that in this case, we have $1 million worth of equity to deal with, and at the end of this day, if you keep going, you will receive none of that equity after we’re all said and done. [¶] Do you understand?”

Wife sought clarification, asking the court if she had to pay attorney fees “[e]ven if it’s a good faith filing?” The court responded that the record establishes Wife does not make good faith filings and demonstrated her intent of delaying the matter to continue living in the house.

B. Applicable Law & Analysis

This is an unusual case where the court’s sanction order under sections 128.5 and 128.7 did not contain a monetary sanction. The court worded the order to impose a future monetary sanction to deter prospective filings, anticipating upcoming misconduct. While we agree with the court’s assessment that many of the filings were frivolous and unnecessary, and we appreciate the court’s patient efforts to review each filing with Wife, it lacked the statutory authority to issue what looks like a preemptive attorney fee sanction award.

A California court may impose attorney fees as a sanction only when authorized by statute to do so. (See Interstate Specialty Marketing, Inc. v. ICRA Sapphire, Inc. (2013) 217 Cal.App.4th 708, 717.) To stop the incessant misuse of the court system by self-represented litigants, the Legislature enacted the vexatious litigant statutes. (§§ 391-391.8.) An alternative to declaring a party vexatious, the court has authority to impose a monetary sanction on a party for an existing action, tactic, or filing to deter repetition of the misconduct.

For example, section 128.5 authorizes a court to order a party or an attorney to pay reasonable expenses, including attorney fees incurred by another party as a result of bad faith tactics that are frivolous or solely intended to cause unnecessary delay. Section 128.7, a much narrower sanctions statute, applies only to misconduct in the filing or advocacy of groundless claims in signed pleadings and papers. Both statutes provide a court may not impose sanctions unless there has been notice provided in a party’s separate motion, or on the trial judge’s own motion, and an opportunity to be heard. Neither statute authorizes the court to make a preemptive order to sanctioning a party for future anticipated misconduct. To the contrary, both statutes contain safe harbor provisions, permitting a party 21 days to withdraw or correct the offensive filing. (§§ 128.5, subd. (f)(1)(B) & 128.7, subd. (c)(1).) “[I]t is reasonable to conclude the Legislature intended to give the offending party an opportunity to correct its conduct and avoid any sanctions.” (Barnes v. Department of Corrections (1999)

74 Cal.App.4th 126, 132.) Here, the court’s order does not give Wife any opportunity to avoid sanctions for meritorious filings.

We conclude a preemptive award unfairly impedes the ability of a litigant to raise a defense or take appropriate legal action in the case. As noted by the trial court, not everything Wife filed was frivolous. Her motion to vacate and two reply briefs were customary and within acceptable limits of legal practice. Accordingly, we reverse the July 10, 2018, attorney fee sanction order and remand the matter for a new OSC regarding sanctions or a hearing to declare Wife a vexatious litigant, or both.

C. Motion to Quash

At the end of April, Wife issued multiple deposition subpoenas and notices to produce documents relating to Husband’s finances. The subpoenas sought information from Husband’s employers, banks, and apartment manager. The documents were subpoenaed to the court and to a deposition officer, Greg Remsen (Wife’s brother). Wife requested the documents be produced to Remsen on May 20, 2018, and to the court by May 25, 2018. Husband filed a motion to quash the subpoenas, with a hearing set for June 29, 2018.

As mentioned above, on May 25, 2018, the court stayed enforcement of the judgment pending the appeal in Richards I, and scheduled an OSC regarding sanctions for June 28, 2018. The last item of the minute order stated, “All other matters set for hearing this date are ordered off calendar, subject to restoration pending the appeal.”

On June 28 the court continued the OSC regarding sanctions to July 10, 2018. The parties do not mention what happened, if anything, on June 29, 2018 (the date scheduled for Husband’s motion to quash).

At the very end of the July 10, 2018, hearing, after the court imposed its sanction order, Husband stated his motion to quash eight subpoenas was unopposed. Wife responded the motion was unopposed because the case was stayed on May 25, 2018. She said to the trial judge, “You told me not to file anything. I was ready to present my case.”

The court asked Wife if she needed the subpoenas, and she explained she needed the subpoenas to prove Husband’s income. The court stated there was nothing to do in the case while it was stayed during the appeal. It explained, “Once the court of appeal[] makes its ruling, whether it’s a reversal, affirmance, then we cross that bridge when we get there, but for purposes [of] going forward, those subpoenas are quashed. [¶] There is no need for them, okay?” The court’s minute order reflects the court granted the motions to quash.

Wife complains the issue regarding subpoenas was ordered off calendar on May 25, and there was no reason to grant the motion to quash on July 10, 2018, while the case was stayed. Husband’s briefing does not address this issue. It appears the court’s decision to grant the motion conflicts with its earlier order staying the matter. Accordingly, we reverse the order granting the motion to quash.

D. “Wiping Out” Motions & Premature Arguments

At the July 10, 2018 sanctions hearing, the court determined one of Wife’s filings was moot and stated it was “wiping it out.” During the hearing, the court declared several of Wife’s filings were either moot or frivolous. On appeal, Wife complains she was entitled to a hearing at least on her opposition to Husband’s objections to her exhibit list and proof of service.

It is unclear what the trial court meant by “wiping out” Wife’s filings. And although the court deemed several filings moot or frivolous, its July 10 minute order does not contain rulings dismissing, striking, or vacating any of Wife’s filings. There are only two rulings in the minute order, which we have addressed above, i.e., sanctions and granting the motion to quash.

On May 25, 2018, the court ordered all matters off calendar and the matter stayed until the appeal was resolved. Accordingly, in July the court could sanction Wife for filing these many motions, replies, objections, etc . . . but could not rule on matters it previously stayed. There was much discussion about these motions, but no ruling, and nothing for this court to reverse.

We wish to make clear Wife should not construe this ruling as favorable. There were no rulings on the merits of the 16 filings at issue in the court’s OSC regarding sanctions. Wife’s arguments in this appeal regarding the merits of these matters is premature. Thus, we need not consider them. All matters except the OSC were stayed, leaving resolution of the parties’ remaining disputes for another day.

E. Judicial Bias

As in Richards I, Wife accuses the trial court of being generally biased and prejudiced against her due to unfavorable rulings. We have carefully examined the record and Wife’s arguments.

Wife forfeited any claim of judicial bias by failing to assert it below. (People v. Farley (2009) 46 Cal.4th 1053, 1110; People v. Samuels (2005) 36 Cal.4th 96, 114.) Moreover, none of Wife’s bias allegations relate to statements the court made on the record. Rather, Wife infers bias merely from the rulings made in Husband’s favor. “‘[A] trial court’s numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias, especially when they are subject to review.’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 732.)

DISPOSITION

We affirm the June 15, 2018, order. We reverse the July 10, 2018, order and remand for a new OSC regarding sanctions or a hearing to declare appellant a vexatious litigant, or both. We deny appellant’s request that we take judicial notice of a trial court order entered in March 2019 because the information was unnecessary to the decision. The hearing took place long after the matters reviewed in this appeal, and concern an undertaking posted after the court entered these orders in 2018. In the interests of justice, each party shall bear their own costs on appeal.

O’LEARY, P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.