Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. 37-2007-00064303- CU-PT-CTL, Rafael A. Arreola, Judge.
McINTYRE, J.
Sharon Taylor Attal petitioned the superior court to disinter the body of her mother, Joan Taylor, so that it could be re-interred with Sharon's deceased brother, Mark Taylor. John Taylor, another of Sharon's brothers, filed a cross-petition requesting that Mark's body be disinterred so that it could be reinterred with Joan's. Sharon appeals the superior court order denying her petition and conditionally granting John's cross-petition. She contends that (1) she was not required to obtain court approval before having Joan's body exhumed and reinterred; (2) the superior court abused its discretion in denying her petition; (3) the court lacked subject matter jurisdiction over John's cross-petition, which she contends required the resolution of religious disputes; (4) the court lacked personal jurisdiction over her as to John's petition; (5) John lacked standing to bring his cross-petition; (6) the court violated her due process rights as to the hearing on John's petition; and (7) the court abused its discretion in granting John's petition. We find her arguments unavailing and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Joan was born in March 1918 as Sadie Rabinowitz, to Jewish parents. When she became emancipated, she changed her name to Joan Robbins. As a result of marriage, Joan took on the surname Taylor; during the marriage, she and her husband had four children: Sharon, Dennis, John and Mark. Joan was a practicing Presbyterian and raised her children in accordance with that faith. After Joan's husband abandoned the family in 1957, their marriage was dissolved in 1962.
In September 1985, after Joan was hospitalized with a serious illness, Mark purchased two crypt spaces at El Camino Park and Cemetery (the Cemetery), specifying that he and Joan would each be buried there and naming Sharon as a joint tenant owner of the crypt spaces. Joan, who by Sharon's own admission was not "religiously observant" of the Jewish faith, agreed to Mark's plan and was happy with it.
Joan passed away in November 1988 and a Presbyterian minister officiated over her funeral service. Contrary to Judaic principles specifying that a Jewish person's body should be buried in the ground, Joan's body was placed in the crypt in accordance with her expectations, Mark's written directive and the wishes of all four children.
In 1989, Sharon began practicing Judaism as her religious faith. That same year, Mark set up a pre-needs trust with the Cemetery, identifying his faith as Presbyterian, documenting his intent to be entombed rather than buried and specifying that Sharon was to provide instructions about the poems and other materials to be read at his funeral. In 2002, Mark executed a will in which he directed that his body be interred with Joan's in the crypt after he died.
When Mark died in April 2003 in Mexico, however, Sharon disregarded his written directive and attempted to have his body interred at A.M. Israel Mortuary, a Jewish cemetery there. A.M. Israel Mortuary declined Sharon's request because Mark had not practiced Judaism during his life.
After Mark's body was returned to the United States, Sharon discussed Mark's interment with the Cemetery and proposed having his body buried in the Jewish (Mount Sinai) section of the Cemetery. Both Dennis and John were upset by Sharon's proposal, although Sharon insisted on it, particularly after the Cemetery indicated that Mark would have to be placed on his side to fit into a standard sized coffin, as necessary to fit in the crypt. Sharon also insisted on having a Jewish service for Mark, but Dennis and John declined to participate in that service, instead holding a separate, Christian service for the remainder of the family and Mark's friends.
In March 2005, Dennis's wife, Patricia, was diagnosed with Stage IV lung cancer and, after Patricia become seriously ill, Sharon offered to give Dennis the crypt spaces Mark had purchased for himself and Joan if Dennis purchased the burial plot next to Mark's, transferred the plot to her and paid the costs of moving Joan's remains to the new plot. Because he and Patricia liked the location of the crypt where Joan's body was compared to other spaces that were available, Dennis agreed to Sharon's proposal and purchased the plot next to where Mark was buried.
Dennis and Sharon executed written documents providing for the transfer of ownership of the new plot from Dennis to Sharon and the crypt space to Dennis and for the disinterment and reinterment of Joan's remains. Sharon planned to have Joan's body removed from the crypt, disrobed, shrouded, placed in a new casket (a Jewish liner) and reinterred, pursuant to an Orthodox Jewish ceremony, next to Mark's grave in the Mount Sinai section of the Cemetery in November 2006.
The evidence is conflicting on whether John was aware of his siblings' agreement before late October 2006; however, it is undisputed that in early November 2006, John contacted the Cemetery to object to the planned removal of his mother's remains and retained an attorney. John's attorney demanded that Sharon explain why she had disregarded Mark's directions that he was to be interred in the crypt and provide the legal basis for her actions.
Shortly after John's contact with the Cemetery, it notified Sharon that it would proceed with Joan's reinterment only if she obtained a court order. Sharon sent the Cemetery e-mails indicating that she and Dennis were legally entitled to disinter and reinter Joan's remains without any input from John and that John would never take any action, other than making verbal threats, to stop that process because he was "too cheap" to put up any of his own money for a legal fight.
After Sharon's efforts to get the Cemetery to proceed without a court order failed, she filed a disinterment petition in the superior court on March 28, 2007, naming John and the Cemetery as respondents. (All further dates are in 2007 except as otherwise noted.) Shortly thereafter Patricia lost her fight with cancer and Dennis filed a petition similar to Sharon's. Both petitions relied in part on Sharon's declaration, which provided that she was unable to carry out Mark's wishes for his remains to be placed in the crypt because doing so was a "physical impossibility." John filed written opposition, as well as a cross-petition to disinter Mark's remains so that they could be placed in the crypt in accordance with the directions in Mark's will, and electronically served both Dennis and Sharon his papers on April 4. At some point not evident from the record, the court set all of the pending matters for hearing on May 3.
John's attorney noticed an ex parte appearance in Dennis's case, seeking to clarify how the court intended to handle the matter procedurally, and, at the same ex parte hearing, Dennis requested that the court consolidate the proceedings on his petition and Sharon's and that it expedite the hearing date. The court granted Dennis's consolidation request and denied both Dennis's request for an expedited hearing date and John's request for deferment of the hearing. Dennis thereafter filed a written opposition to John's cross-petition; Sharon addressed both the original petitions and John's cross-petition in her reply.
The superior court denied the petitions by Sharon and Dennis and granted John's cross-petition, subject to modification if Mark's remains were not able to fit in the crypt "in any manner." Sharon appeals.
DISCUSSION
1. General Principles
The rights and obligations concerning disposition of dead bodies are governed by certain provisions of the Health and Safety Code. (Estate of Jimenez (1997) 56 Cal.App.4th 733, 737.) (All further statutory references are to the Health and Safety Code except as otherwise noted.) As relevant here, section 7100.1 provides in part:
"(a) A decedent, prior to death, may direct, in writing, the disposition of his or her remains and specify funeral goods and services to be provided. Unless there is a statement to the contrary that is signed and dated by the decedent, the directions may not be altered, changed, or otherwise amended in any material way, except as may be required by law, and shall be faithfully carried out upon his or her death, provided . . . . (1) the directions set forth clearly and completely the final wishes of the decedent in sufficient detail so as to preclude any material ambiguity with regard to the instructions; and, (2) arrangements for payment through trusts, insurance, commitments by others, or any other effective and binding means, have been made, so as to preclude the payment of any funds by the survivor or survivors of the deceased that might otherwise retain the right to control the disposition.
"(b) In the event arrangements for only . . . the cost of interment or the cost of the funeral goods and services are made pursuant to this section, the remaining wishes of the decedent shall be carried out only to the extent that the decedent has sufficient assets to do so, unless the person or persons that otherwise have the right to control the disposition and arrange for funeral goods and services agree to assume the cost. All other provisions of the directions shall be carried out." (See also § 7100, subds. (a), (e) [decreeing that the statutory provisions relating to the disposition of a person's remains "shall be administered and construed to the end that the expressed instructions of the decedent or the person entitled to control the disposition shall be faithfully and promptly performed"].)
Once a body is interred, the law imposes substantial restrictions on its movement. Thus, a deceased person's remains cannot be removed from a cemetery without a written order of the health department or the superior court. (§ 7500.) Further, a party may also be required to obtain either the consent of the deceased's family members (here, "the [deceased's] surviving children") or the permission of the superior court. (§§ 7525, 7526.)
Pursuant to well-established law, disinterment is recognized as an extraordinary remedy, one that will be granted only under very unusual circumstances. "'Only some rare emergency could move a court of equity to take a body from its grave in consecrated ground. . . . The dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose.'" (In re Terra (1952) 111 Cal.App.2d 452, 457, quoting Yome v. Gorman (1926) 242 N.Y. 395, 403.)
A petition to exhume and reinter a body is an equitable proceeding that is addressed to the sound discretion of the superior court. (Estate of Jimenez, supra, 56 Cal.App.4th at p. 739.) In ruling on such a petition, the court must consider the totality of the circumstances, including (1) the public interest in not disturbing the decedent's burial space; (2) the decedent's wishes; (3) the rights and feelings of the decedent's closest relatives; (4) the degree of relationship to the decedent of those opposing or seeking disinterment; (5) the conduct of the parties seeking and opposing re-internment; (6) the ability of the party seeking reinterment to provide a comparable resting place for the decedent; (7) any agreement with the association maintaining the cemetery in which the decedent is buried; (8) the rights and principles of the religious institution that first interred the body; and (9) whether a person with authority gave consent to the first burial. (Maffei v. Woodlawn Memorial Park (2005) 130 Cal.App.4th 119, 127 (Maffei); In re Keck (1946) 75 Cal.App.2d 846, 851; see also In re Terra, supra, 111 Cal.App.2d at pp. 457-458; 22A Am.Jur.2d (2003) Dead Bodies, § 50, p. 48.) Although not necessarily determinative, the decedent's wishes are of particular importance in balancing the equities involved. (In re Terra, supra, 111 Cal.App.2d at p. 458.)
We review a superior court's decision as to whether to grant or deny such a petition for an abuse of discretion. In accordance with that standard, we will reverse the court's decision only if it "exceeds the bounds of reason," in light of the circumstances presented to the court. (Maffei, supra, 130 Cal.App.4th at pp. 123-125, & cases cited therein.) The burden is on the party complaining to establish an abuse of discretion and, unless a clear case of abuse is shown and there has been a miscarriage of justice, we will not second guess the court by substituting our opinion for its decision. (Id. at pp. 124-125.)
2. Sharon's Petition to Disinter Joan's Body
A. The Necessity for the Court's Approval
As a preliminary matter, Sharon appears to contend that she was entitled to disinter her mother's remains, without the court's permission, pursuant to section 7528, which exempts the removal of remains "from one plot to another in the same cemetery" from the application of the required consent provisions. There are several problems with Sharon's argument, however.
First, it was Sharon who sought the court's approval to disinter Joan's body rather than simply suing the Cemetery to enforce the rights she now contends she had and, although she referred to section 7528 in the proceedings below, she merely argued that it provided a basis on which the court should give "[p]rimary importance . . . to the last wishes" of Joan and Mark, rather than as a basis for asserting that the court should have abstained from making any ruling on the matter. Having failed to raise below the argument she now offers, she has arguably waived the issue for purposes of appeal. (See generally Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.)
Even in the absence of a waiver, however, we find section 7528 to be inapplicable. To the extent that section 7528 has been interpreted as giving certain classes of the deceased's relatives (to wit, those listed in section 7525) "the uncontrolled right to removal" of any remains from one plot to another in the same cemetery, that interpretation has been conditioned on the ability of those relatives to "convince a court of equity that the second plot will furnish a more fitting resting place than the first[.]" (In re Keck, supra, 75 Cal.App.2d at pp. 850-851 [upholding a decision of the superior court, sitting in equity, ordering a cemetery to move a deceased's remains from one niche to another in the same cemetery based on the next of kin's unanimous agreement].)
As a related matter, section 7525 identifies the relevant family group whose consent would be required in this case as "the surviving children." Sharon contends that this statutory language is ambiguous and that looking at other related provisions of the Health and Safety Code makes clear that the Legislature intended this section to require only the consent of a majority of the surviving children. This is not, however, what the statutory language says. In accordance with the maxim of statutory construction "expressio unius est exclusio alterius" (that the expression of certain things in a statute necessarily involves exclusion of other things not expressed) and in light of the Legislature's explicit references to "the majority of" a decedent's surviving children where it has so intended (§§ 7100, subds. (a)(3), (5), (6); 7801), we conclude that section 7525 requires the consent of all the deceased's surviving children. (See generally Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391, fn. 13.)
More importantly, although Sharon now suggests that this court should allow her to simply move Joan's remains from the crypt to the burial plot next to Mark's, this is not the relief that she sought from the superior court. Rather, she sought approval to take Joan's body from the crypt, remove the body from the steel casket, disrobe the body, place the body in a shroud and put the body into a pine box before reinterring the body into the burial plot. Sharon's request in the proceedings below (which is what we review on appeal) well exceeded the scope of the exemption set forth in section 7528, rendering that statute inapplicable. (See also Maffei supra, 130 Cal.App.4th at p. 127 [requiring a greater showing of necessity where the decedent's surviving husband sought to remove the decedent's body from its existing crypt space, cremate the body, place its ashes in an urn where his cremated remains would also be placed after his death and put the urn into another crypt space in the same cemetery along with an urn containing the ashes of his second wife].)
B. The Court's Exercise of Discretion
Applying the standards governing the superior court's exercise of discretion on a disinterment petition (discussed in section 1 above), we conclude the superior court did not abuse its discretion in denying Sharon's petition to exhume and reinter Joan's body. The evidence before the superior court was uncontroverted that Mark purchased the crypt spaces so that his body and Joan's would be laid to rest there after their respective deaths and that Joan happily acquiesced in Mark's plan. Joan was in fact interred in the crypt in 1988 in accordance with this plan, with the consent of all her children, including Sharon. Sharon did not seek to change this arrangement until 2007, more than 18 years later. Given the public interest in not disturbing a decedent's burial space, Joan's wishes and the consent of the entire family to her original interment, the court acted well within its discretion in denying Sharon's petition to exhume and reinter Joan's body.
3. John's Petition to Disinter and Reinter Mark's Body
A. Subject Matter Jurisdiction
Sharon contends that the superior court lacked subject matter jurisdiction to consider John's opposition to her petition or John's cross-petition because those pleadings required the court to resolve religious disputes between the two siblings. The establishment clause of the First Amendment to the United States Constitution and its California counterpart (Cal. Const., art. I, § 4) preclude civil courts from adjudicating property disputes based on religious doctrine. (Jones v. Wolf (1979) 443 U.S. 595, 602.)
A court may, however, apply neutral principles of law to resolve such disputes, so long as the court stays free from "entanglement in questions of religious doctrine, polity, and practice." (Jones v. Wolf, supra, 443 U.S. at p. 603.) Civil courts do not inhibit free exercise of religion, or establish religion, by merely opening their doors to disputes between people of differing religious beliefs; rather First Amendment concerns are implicated only where the courts undertake to resolve controversies over religious doctrine and practice, matters of "purely ecclesiastical concern." (Presbyterian Church v. Hull Church (1969) 393 U.S. 440, 449; Concord Christian Center v. Open Bible Standard Churches (2005) 132 Cal.App.4th 1396, 1411.)
Here, John's pleadings did not seek to resolve issues of religious doctrine or practice, nor did the court attempt to resolve those types of issues in ruling on the matters before it. Rather, John's petition and opposition to Sharon's petition merely disputed the proper disposition of Joan's and Mark's remains and the court applied the neutral principles of law set forth in the Health and Safety Code and the common law in determining how to rule on the parties' petitions. Although, as Sharon correctly points out, the court inquired about whether Joan and Mark had been practicing the Jewish faith during their lives, its questions properly sought to elicit evidence relevant to an important issue in this matter, that is, the decedents' wishes as to the disposition of their remains after death. (Maffei, supra, 130 Cal.App.4th at pp. 127-128; In re Keck, supra, 75 Cal.App.2d at p. 851.) The court's inquiry in this regard was thus not improper, nor did it render the court without subject matter jurisdiction over the matters pending before it.
B. Personal Jurisdiction over Sharon
Sharon contends that the superior court lacked personal jurisdiction over her as it related to John's petition. However, when a nonresident plaintiff commences an action, she submits to the court's personal jurisdiction on any cross-complaint (in this case, cross-petition) filed against her by a defendant. (Adam v. Saenger (1938) 303 U.S. 59, 67-68.) Such a plaintiff is deemed to have consented to the court's jurisdiction "for all purposes for which justice to [the] defendant requir[es] his presence." (Ibid.) This "is the price . . . the state may exact as the condition of opening its courts to the plaintiff." (Ibid.; see generally Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 658-659.)
In accordance with these principles, Sharon consented to the superior court's personal jurisdiction over her by filing her petition to disinter Joan's remains and thus John was not required to serve her in accordance with the Hague Convention, as he would have been if he had filed his petition in the first instance (see Code Civ. Proc., § 413.10, subd. (c)). Sharon's contention that the court lacked personal jurisdiction over her as relating to John's petition is without merit.
C. John's Standing
Sharon also suggests that John lacked standing to bring a petition to disinter Mark's remains because he did not suffer any injury in connection with Mark's interment, because he lacked any legal right to have his views on that matter considered or honored and because, as a resident of Florida, he lacked the minimum contacts with California necessary to establish the court's personal jurisdiction over him. These arguments are not well taken.
John clearly consented to the California courts' exercise of personal jurisdiction over him when he filed his cross-petition here. (Adam v. Saenger, supra, 303 U.S. at pp. 67-68.) Further, pursuant to section 7525, subdivision (c), the consent of Mark's "surviving brothers or sisters" was required to exhume and reinter his body and, in accordance with our analysis of subsection (b) of that statute above, the statute required the consent of all such siblings. (Although the statutory language is written in the disjunctive, its use of the word "or," when considered in the context of the remainder of the statute, appears to be in error.) As such, the statute accords John standing to assert Mark's rights under sections 7100 and 7100.1.
For these reasons, Sharon's contention that John lacked standing to bring the cross-petition is without merit.
D. The Court's Exercise of Discretion
The evidence before the superior court was uncontroverted that Mark purchased the crypt spaces so that his body and Joan's would be laid to rest there after their respective deaths. Although Mark set forth his directions in this regard in writing on multiple occasions before his death, including in the will he signed five months preceding his death, Sharon disregarded those directions in contravention of her statutory obligations. (§§ 7100, subds. (a), (e); § 7100.1, subds. (a), (b).)
Sharon nonetheless contends that, as the holder of the durable health power of attorney for Mark, she had the right under section 7100 to control the disposition of his remains in the first instance and that accordingly the court was required to leave Mark's remains where she had had them interred. Section 7100 expressly provides, however, that its designation of the person who has the right to control a deceased's remains is inapplicable where, as here, "other directions have been given by the decedent pursuant to Section 7100.1[.]" (§ 7100, subd. (a).)
To avoid this difficulty, Sharon contends that Mark's directions that his body be interred in the crypt did not comply with the requirements of section 7100.1 because they were ambiguous as to whether his body could be buried on its side and further because Mark had not provided sufficient funds to cover the costs of his own burial. Again, however, these contentions are problematic.
In granting John's petition, the superior court implicitly found that Mark's written directions, which he reiterated on three different occasions over the course of approximately 17 years, were unambiguous that Mark intended to be interred in the crypt with his mother. Although Sharon's original declaration in the proceedings below contended that she was unable to carry out Mark's wishes for his remains to be placed in the crypt because doing so was a "physical impossibility," the court also implicitly rejected this assertion and, as Sharon now admits, it was physically possible to inter Mark in the crypt, just not in a manner that she found fitting based on her own desires for Mark and her religious beliefs. Further, Sharon's own evidence suggested that Mark's size did not increase substantially in the five months that intervened between the execution of his will (which reiterated Mark's previously expressed desires) and his death. She also offered no competent (i.e., non-hearsay) evidence to establish that Mark's body would have had to be "smashed down" to fit in the casket on his side.
Under the circumstances, the court could have reasonably concluded that the fact that Mark would have to be placed on his side did not negate (or create any ambiguity as to) his explicit and overriding desire to be laid to rest next to his mother in the crypt, particularly given that Mark's contract with the Cemetery specifically referred to the limitations on the size of the crypt.
Sharon's second argument, that Mark had not provided sufficient funds to cover the costs of interring him in the crypt, is equally unhelpful to her position because it is not borne out (and is in fact contradicted) by the evidence in the record. The evidence is undisputed that Mark entered into a pre-needs trust with the Cemetery in 1989 and that the purpose of a pre-needs trust is to provide a means by which a person pre-arranges and pre-pays for his funeral services. Although Sharon contends that Mark later revoked the pre-needs trust, there is no evidence of such revocation in the record.
Even if Mark had not set up a pre-needs trust, his December 2002 will provided that any money he had in bank accounts, IRA accounts, life insurance or pension funds was to be used to pay his existing debts and then to cover his funeral expenses, with any remaining funds to be paid to Sharon and her husband. Although Sharon presented evidence that she purchased the Mount Sinai burial plot where Mark was ultimately buried with her own funds, the relevant question is not whether Mark had sufficient funds to buy a new burial plot, but instead whether his funds were sufficient to cover the remaining costs of interring him in the crypt (for which he had already paid). Neither Sharon nor Dennis offered any evidence to establish the answer to the latter question.
Sharon has not met her burden to show that the superior court abused its discretion, i.e., that its conditional granting of John's petition "exceed[ed] the bounds of reason[.]" (Maffei, supra, 130 Cal.App.4th at p. 125.)
E. Due Process Considerations
Sharon additionally challenges the superior court's actions on the ground that the court failed to adequately protect her due process rights in connection with John's cross-petition. Specifically, she contends that John's failure to serve her with his cross-petition far enough in advance of the hearing adversely impacted her ability to gather evidence and respond to it.
At the time Sharon filed her petition, she also filed a "consent to electronic service" in which she agreed to accept electronic service of motions in the case and the court later consolidated all the matters to be heard together. John filed and electronically served his opposition to the petitions and his cross-petition on both Dennis and Sharon on April 4, well in advance of the scheduled hearing date of May 3.
Although Sharon now contends that the electronic service upon her was invalid, she never raised this objection below, when the court would have had an opportunity to inquire further on the matter. Further, there is no indication that she failed to timely receive the electronically served documents (which were also served by mail to her on the same date) and her lack of objection in the superior court suggests that in fact she did receive them. Additionally, although Sharon was unhappy with the Cemetery's response to her request for documents, she never sought to compel further responses, nor did she request a continuance of the hearing to allow her to receive supplemental responses to her requests.
Because the record suggests that Sharon had both notice and an opportunity to respond to John's cross-petition, her due process objection provides too little and comes too late.
F. Prohibitions of Section 7980
Sharon finally suggests that the court's order granting John's cross-petition violates section 7980, which provides that the heirs, relatives or friends of any decedent whose remains have been interred in any cemetery owned, governed or controlled by a religious denomination, church, society or similar organization cannot disinter, remove, reinter or dispose of any such remains except in accordance with the rules, regulations and discipline of that organization. However, the record contains no evidence that the Cemetery has any affiliation with a religious organization and Sharon provides no cogent argument as to how the court's order violated this statute. Under these circumstances, we consider her argument in this regard waived. (See Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
4. Sanctions
During the pendency of this appeal, Sharon made two motions for this court to take judicial notice of the definitions of certain terms, of various unauthenticated documents and of various documents that were not presented to the superior court in the proceedings below. After those motions were denied, Sharon made a request to augment the record with a number of those same materials. In opposing the motion to augment, John requested $400 in sanctions for the costs he incurred in preparing that opposition, contending that the motion was frivolous. Sharon submitted some of those same documents yet again, in connection with her opposition to the request for sanctions.
The Court of Appeal has "the inherent authority to impose sanctions for the filing of a frivolous motion on appeal, and will exercise its discretion to do so upon an appropriate showing." (Dana Commercial Credit Corp. v. Ferns & Ferns (2001) 90 Cal.App.4th 142, 147.) However, an appeal or a motion is considered frivolous "only when it is prosecuted for an improper motive -- to harass the respondent or delay the effect of an adverse judgment -- or when it indisputably has no merit -- when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
Here, although Sharon's repeated motions neither complied with the applicable requirements, nor were made with the limitations of appellate review in mind, we nonetheless conclude that they resulted from her apparent confusion as to proper appellate procedure rather than from some improper purpose. Accordingly, we deny John's request for sanctions (which we also note is not substantiated by a declaration establishing the basis for the amount sought).
DISPOSITION
The order is affirmed. John is entitled to recover his costs on appeal.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.