Opinion
NOT TO BE PUBLISHED
Appeal from postjudgment orders of the Superior Court of Orange County No. D311759, Mark Millard, Judge. Affirmed and remanded for further proceedings. Motion for sanctions. Granted.
Landon Gates Mustell for Appellant.
John L. Dodd & Associates, John L. Dodd, Mitchell Keiter; and Jennifer J. King for Respondent.
OPINION
FYBEL, J.
Introduction
Fifteen years after judgments were entered in her dissolution proceeding, Liliana Rinaldi moved to vacate the judgments on the ground an order assigning a retired judge to hear the case could not be entered nunc pro tunc 13 days after entry of an interlocutory judgment. The trial court denied the motions to vacate, and Liliana appealed.
We refer to the parties by their first names to avoid confusion; we intend no disrespect.
The motions to vacate were properly denied both because they were filed long after the statutory period, and because they were barred by the equitable doctrine of laches. Although Liliana argues judicial power cannot be retroactively delegated, the trial court found that the nunc pro tunc assignment order was merely confirming an existing assignment order that was never properly filed. The trial court did not err. We therefore affirm the order denying the motions to vacate.
Liliana’s ex husband filed a motion for sanctions against Liliana and her appellate counsel for filing and pursuing a frivolous appeal. For the reasons explained post, we grant the motion, and remand the matter to the trial court to determine the amount of sanctions and to determine whether sanctions should be imposed against Liliana, or her appellate counsel, or both.
Statement of Facts and Procedural History
In January 1990, Liliana filed a petition for dissolution of her marriage to Angelo Rinaldi. Liliana sought to join one of Angelo’s business associates, Dewey Davide, to the dissolution proceeding, claiming Davide held assets in which the community had an interest. A hearing on the matter began on March 12, 1993, before retired judge J.E.T. Rutter. After a hearing spanning many days, Judge Rutter denied Liliana’s request to join Davide. Judgment on the complaint for joinder was entered April 13, 1993 (the judgment on joinder). Liliana filed a notice of appeal from the judgment on joinder on June 10, 1993.
On April 26, 1993, Chief Justice Lucas, as chairperson of the Judicial Council, signed an order (the assignment order) reading: “THE HONORABLE J. EDGER [sic] T. RUTTER, II, Retired Judge of the Superior Court, Orange County, is hereby assigned to sit as a judge of the Superior Court, Orange County, on March 8, 1993 and from March 12, 1993 to April 15, 1993, and until completion and disposition of all causes and matters heard pursuant to this assignment.”
Following further hearings, a judgment on reserved issues was entered on September 15, 1993 (the judgment on reserved issues). Liliana filed a notice of appeal from the judgment on reserved issues on September 23, 1993.
In an unpublished opinion, another panel of this court affirmed the judgments on March 28, 1997.
In October 1998, Liliana filed a motion to vacate a postjudgment order regarding an undertaking on the ground that Judge Rutter did not have the judicial power to enter the order because the assignment order was defective. The assignment order was attached to Liliana’s declaration in support of the motion. Liliana took this motion off calendar without obtaining a ruling on it.
On December 20, 2000, Liliana filed a motion to vacate one provision of the judgment on reserved issues on the ground it was entered in excess of the trial court’s subject matter jurisdiction, and was therefore void. Liliana did not, in that motion, raise any issues relating to the assignment order. The trial court denied the motion to vacate. Liliana appealed, and in another unpublished opinion, another panel of this court affirmed the trial court’s order.
On April 30, 2003, Liliana filed yet another motion to vacate the judgment on reserved issues, this time claiming actual fraud and professional misconduct by her trial counsel. The trial court denied the motion to vacate on November 17, 2003. Liliana filed a motion for reconsideration, which was also denied by the trial court. Liliana then filed a motion for a new trial, which was also denied by the trial court. Liliana filed a notice of appeal from the order denying her motion for a new trial; that appeal was dismissed for failure to timely deposit costs for preparing the record on appeal. (Cal. Rules of Court, rule 8.130(b) (formerly Cal. Rules of Court, rule 4(b)).) Liliana did not pursue that appeal.
In July 2008, Liliana filed separate motions to vacate the judgment on joinder and the judgment on reserved issues, as well as various orders filed before the judgments were entered, claiming both judgments were void because Judge Rutter was “a retired judge... who had no power to act as a judicial officer under the California Constitution.” The trial court denied Liliana’s motions; Liliana timely appealed.
Discussion
I.
Standard of Review
Liliana’s motions to vacate the judgments were filed under Code of Civil Procedure section 473, subdivision (d). We generally review the denial of a motion to vacate a judgment for abuse of discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 258; Rodriguez v. Henard (2009) 174 Cal.App.4th 529, 534 535.) A trial court’s findings supporting its order denying a motion to vacate a judgment are reviewed for substantial evidence. (Pelayo v. J. J. Lee Management Co., Inc. (2009) 174 Cal.App.4th 484, 493.)
Liliana cites Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488 for the proposition that the de novo standard of review should apply in this case. That case held an appellate court “review[s] de novo a trial court’s determination that a judgment is void.” (Id. at p. 496.) The court reasoned that the relevant question was “whether or not the default and default judgment were in fact void. A trial court has no statutory power under [Code of Civil Procedure] section 473, subdivision (d)[, ] to set aside a judgment that is not void....” (Id. at pp. 495-496.) For the reasons we explain, even on a de novo review, the judgment was not void.
II.
The Law Regarding Judicial Assignments
Judicial power may only be vested in a superior court judge if he or she is (1) elected (Cal. Const., art. VI, § 16, subd. (b)); (2) appointed by the governor (id., art. VI, § 16, subd. (d)(2)); or (3) assigned by the Chief Justice (id., art. VI, § 6).
“The Chief Justice shall seek to expedite judicial business and to equalize the work of judges. The Chief Justice may provide for the assignment of any judge to another court but only with the judge’s consent if the court is of lower jurisdiction. A retired judge who consents may be assigned to any court.” (Cal. Const., art. VI, § 6, subd. (e).)
Throughout her appellate briefs, Liliana relies heavily on In re Horton (1991) 54 Cal.3d 82, 90, which holds: “The jurisdiction of a court commissioner, or any other temporary judge, to try a cause derives from the parties’ stipulation. [Citation.] Thus in the absence of a proper stipulation, the judgment entered by the court commissioner in this case would be void. [Citations.]” That case is inapposite because Judge Rutter was not a commissioner or a temporary judge, but rather a retired judge sitting by assignment by the Chief Justice.
Liliana also cites Pickens v. Johnson (1954) 42 Cal.2d 399, 406, for the proposition that a retired judge “has no power as a judicial officer until the happening of a contingency, namely, his assignment and voluntary acceptance thereof as a judge of the superior court in and for a designated county by the chairman of the Judicial Council.” This legal conclusion is inapplicable to this case. The holding of Pickens was limited to the constitutionality of a provision of the Judges Retirement Act permitting assigned retired judges to receive compensation in addition to their retirement pay, and thus determining that the judgment rendered by an assigned retired judge in that case was not void. (Id. at pp. 402, 410.)
III.
The Judgments Are Not Void on Their Face, and the Trial Court Did Not Abuse Its Discretion in Denying Liliana’s Motions to Vacate.
“Once six months have elapsed since the entry of a judgment, ‘a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face.’ [Citation.]” (Cruz v. Fagor America, Inc., supra, 146 Cal.App.4th at pp. 495 496.) A judgment is void on its face when it “‘requires only an inspection of the judgment-roll or record to show its invalidity[.]’” (Hayashi v. Lorenz (1954) 42 Cal.2d 848, 851.) The documents that would comprise the judgment roll in this matter-the pleadings, the findings, and the judgments (Code Civ. Proc., § 670, subd. (b); Culver v. Culver (1944) 65 Cal.App.2d 145, 147)-do not show the judgments were void on their face. The fact that the trial court took judicial notice of the assignment order in connection with the present motions to vacate does not, as Liliana argues, make the assignment order a part of the judgment roll. Even if the assignment order was part of the judgment roll, it does not show on its face that the judgments are void. The trial court did not err in denying the motions to vacate.
IV.
Even If the Judgments Were Void, the Trial Court Did Not Err in Denying the Motions to Vacate Due to Laches and Failure to Litigate the Issue.
Even if Liliana could show the judgments were void on their face, we would find the trial court did not err because Liliana’s unexcused delay in asserting the alleged impropriety of the assignment order would require the application of the equitable doctrine of laches. “[A] motion to vacate a judgment should not be granted where it is shown that the party requesting equitable relief has been guilty of inexcusable neglect or that laches should attach.” (In re Marriage of Park (1980)27 Cal.3d 337, 345.) In this case, Angelo has shown prejudice justifying the imposition of a laches defense. Angelo submitted a declaration in opposition to the motions to vacate in which he stated he had relied on the finality of the judgments, as had his current and former business partners and mortgage and lien holders, over the course of 15 years. Angelo also declared that, based on the finality of the judgments, he had made an equalizing payment to Liliana, and had fully paid spousal support to Liliana as provided by the judgments.
Liliana’s failure to raise the issue of the allegedly improper assignment order is compounded by the fact that she did raise the issue earlier, but took her motion off calendar before obtaining a ruling on it. In 1998, Liliana attached a copy of the assignment order to her declaration in support of a motion to set aside a postjudgment order, in which motion Liliana asserted Judge Rutter was not validly assigned to hear the case. Liliana was aware of the assignment order and her potential claim that Judge Rutter was not validly assigned to hear at least some portion of the dissolution proceeding almost 10 years before she filed her motions to vacate based on the invalidity of the assignment order.
Liliana also filed two other motions to vacate or set aside all or a part of the judgment on reserved issues, and filed four notices of appeal from the judgment on joinder and/or the judgment on reserved issues. All of these were filed after the assignment order was issued, yet in none of them did Liliana raise the issue of the assignment order’s invalidity.
V.
The Trial Court’s Finding that Judge Rutter Was Validly Assigned to Hear the Case Before the Assignment Order Was Filed Is Supported by Substantial Evidence.
Liliana argues judicial power could not be retroactively delegated to Judge Rutter. Liliana’s motions to vacate the judgments were based, in part, on the assumption that no order assigning Judge Rutter to preside over the Rinaldis’ dissolution proceeding existed before April 26, 1993.
The trial court, however, found an assignment order was made before April 26, 1993, but was not signed or filed due to clerical error. “Here, the process of how Judge Rutter came to sit in Department... 502 in March 1993 is unknown. However, given the fact that Judge Rutter was sitting in Department 502 and Chief Justice Lucas clearly intended to affirm Judge Rutter’s role during [trial] and thereafter, there is a substantial basis to conclude that the assignment order 1) had been made prior to the Chief’s signing the formal 4-26-93 order but due to clerical error had not been signed prior to trial (this would allow for a typical nunc pro tunc order) or 2) was ordered-nunc pro tunc given a trial court error and the Chief’s [inherent] power since justice required, even absent a previous order. The Chief Justice’s order is a valid retroactive/nunc pro tunc order.”
The trial court’s factual findings regarding the existence of an earlier assignment order are supported by substantial evidence. Both Angelo and his former trial counsel submitted declarations in opposition to Liliana’s motions to vacate in which they stated the Rinaldis’ case was assigned to Judge Rutter on the first day of trial. The parties were informed at that time that Judge Rutter was a retired judge sitting on assignment, and no one objected to Judge Rutter’s designation as the trial judge. The judgment on joinder reads, in relevant part, “[t]his cause came on regularly for trial on March 15, 1993, in Dept. 502 of the above entitled Court, the Honorable J.E.T. Rutter, Judge presiding, by assignment of the judicial council.” Orders signed by Judge Rutter and filed before the assignment order was filed refer to Judge Rutter as “the Honorable J.E.T. Rutter, Judge Presiding, on assignment by the Judicial Council.” All minute orders, written findings, and notices of ruling identify Judge Rutter as the judge presiding over the case.
Liliana makes a related argument that the assignment of Judge Rutter was improper because it was done without notice. The evidence set forth ante is substantial evidence that the parties had notice of the assignment of a retired judge to hear their case.
VI.
An Assignment May Be Ordered Nunc Pro Tunc.
Liliana argues the assignment order could not be entered nunc pro tunc. The basic rule regarding nunc pro tunc orders may be summarized as follows: “Whenever justice requires it, if no express statute prohibiting it stands in the way, the courts of this state, under the guidance of this court, have always countenanced the entry of nunc pro tunc orders to preserve substantial rights, and such orders are made nunc pro tunc not alone to supply deficiencies in the record of previous orders or judgments, but they are ordered entered nunc pro tunc when no previous judgment or order upon the matter has been made, though always, as has been said, to preserve and never to impair the rights of litigants.” (Osmont v. All Persons, Etc. (1913) 165 Cal. 587, 591-592.)
Liliana relies on Fairfield v. Superior Court (1963) 216 Cal.App.2d 438 (Fairfield). We find that case actually supports Angelo’s position, however. In Fairfield, the presiding judge of the superior court entered an order transferring a case to a new judge. (Id. at p. 441.) The order was entered in August 1962, but made effective July 24, 1961, nunc pro tunc. (Ibid.) The trial court refused to consider the petitioner’s declaration of bias, filed pursuant to Code of Civil Procedure section 170.6. (Fairfield, supra, 216 Cal.App.2d at pp. 441-442.) In issuing a writ of prohibition, the appellate court found no error with the issuance of the transfer order nunc pro tunc, but concluded the petitioner had the right to submit a declaration of bias after the transfer order was filed. “[I]t was within the jurisdiction of the presiding judge of the superior court to assign all further proceedings in the case to a particular judge although the appeal was pending.... [¶]... [¶] But under the circumstances presented in this case, after the assignment of the matter to Judge Gitelson the petitioner was still free to assert the right afforded him by section 170.6 of the Code of Civil Procedure. At the time of such assignment no particular motion or other matter connected with the case appears to have been pending before the superior court. The case could not be reset for trial until the determination of the appeal. In November 1962, when the petitioner made known his claim of disqualification, his action was taken timely.” (Fairfield, supra, 216 Cal.App.2d at pp. 442-443, fn. omitted.) Most significantly to the present case, the appellate court held: “The power to make the correction nunc pro tunc existed even though the record did not disclose that any written order had ever been entered which could be subject to correction. [Citations.]” (Id. at p. 442.)
Although Liliana asserts the nunc pro tunc assignment order impaired her rights, in violation of Osmont v. All Persons, Etc., supra, 165 Cal. at page 592, by “prevent[ing] her from more timely challenging RUTTER’S lack of power, ” she fails to show how her rights were impaired. Liliana claims she could have used numerous procedural devices to challenge the judgments based on the improper assignment order, but for the fact the order was entered nunc pro tunc. Fairfield, however, teaches that Liliana could have raised her arguments after the assignment order was entered nunc pro tunc. (Fairfield, supra, 216 Cal.App.2d at pp. 442-443.) And indeed, Liliana did appeal from the judgment, file a postjudgment motion alleging the assignment order was defective, and filed another postjudgment motion claiming the judgment was void because it was entered in excess of the trial court’s subject matter jurisdiction.
VII.
Any Challenge to Judge Rutter’s Authority Should Have Been Made in a Quo Warranto Proceeding.
The trial court concluded that in order to challenge Judge Rutter’s authority, Liliana was required to pursue an action quo warranto: “Judge Rutter’s authority derived from the Chief Justice and a challenge to the authority of an assigned judge is a challenge to the court itself, requiring the Attorney General’s involvement in a quo warranto proceeding. [Citations.] Liliana now challenges Judge Rutter’s authority, 15 years later. [¶] Even if the appointment were deemed invalid, de facto rules should apply. Judgments of a de facto judge are not subject to collateral attack. ‘In the case of judicial officers, the rule is that, while the right to hold the office may be challenged by an appropriate proceeding (e.g. quo warranto), the judgments or other judicial acts of a de facto judge are not subject to collateral attack. [Citations.]’ [Citation.] Rulings of a judge who holds office ‘under color of right and title to the office’ are generally deemed judges de facto, if not, de jure and not subject to collateral attack on the basis that the judge did not lawfully hold the office. [Citations.] [¶] ‘Supplementing the practical justification for the general de facto doctrine is the useful distinction between the court and the judge [citation]. The particular judge, invalidly selected or irregularly holding the office, has no jurisdiction to act, and a prompt challenge may prevent the judge from doing so. But the court has jurisdiction of the subject matter and the parties, and, upon proper objection, a qualified judge could have been procured to render the judgment. The rendition of the judgment or order is therefore not an act wholly void for lack of jurisdiction of the subject matter (no competent court), but is simply an act in excess of the jurisdiction of a court having jurisdiction of the subject matter, and collateral attack on judgments merely in excess of jurisdiction is undesirable. [Citation.]’ [Citation.]”
Liliana argues People v. Sassovich (1866) 29 Cal. 480, People v. Kwolek (1995) 40 Cal.App.4th 1521, and other cases relied on by the trial court do not apply because in those cases “the officeholder challenged actually occupied the public office through some legally recognized process (i.e.[, ] election, gubernatorial appointment, assignment by the Chief Justice) at the time he or she performed the acts that gave rise to the challenge.” We need not address whether Liliana’s argument is correct legally, because it lacks factual support. As explained above, the trial court’s finding that Judge Rutter was assigned by the Judicial Council before the date of the assignment order is supported by substantial evidence. This argument, therefore, fails.
In People v. Sassovich, supra, 29 Cal. at page 485, the Supreme Court held that the creation of new judicial districts by the Legislature was not unconstitutional, so a judge appointed by the governor to sit in a new district had de facto if not de jure authority. In any event, the Court concluded judge’s authority to preside over the defendant’s murder trial could not be challenged collaterally on appeal. (Ibid.) In People v. Kwolek, supra, 40 Cal.App.4th at pages 1530-1531, the appellate court held the validity of a municipal court judge’s assignment to the superior court by the Chief Justice could not be collaterally attacked on appeal; the proper method of challenge was a quo warranto proceeding.
VIII.
Motion for Sanctions
Pursuant to California Rules of Court, rule 8.276(a)(1), Angelo filed a motion for sanctions against Liliana and her appellate counsel for “[t]aking a frivolous appeal or appealing solely to cause delay.” Liliana was provided notice by this court, filed an opposition to the motion, and oral argument on the issue of sanctions was combined with oral argument on the merits. (Cal. Rules of Court, rule 8.276(c), (d) & (e).)
“On motion of a party or its own motion, a Court of Appeal may impose sanctions, including the award or denial of costs under rule 8.278, on a party or an attorney for: [¶] (1) Taking a frivolous appeal or appealing solely to cause delay.” (Cal. Rules of Court, rule 8.276(a)(1).)
“[A]n appeal should be held to be 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. [Citation.]” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) The test for frivolousness has both an objective and a subjective standard; they are frequently used together, “with one providing evidence of the other.” (Id. at pp. 649 650; see Millennium Corporate Solutions v. Peckinpaugh (2005) 126 Cal.App.4th 352, 360 & fn. 5.)
As set forth, ante, Liliana’s appeal is completely without merit. We therefore turn to whether the appeal has been used for an improper motive. We conclude it has. First, Liliana’s repeated use of appeal and postjudgment proceedings over a period of 15 years demonstrates an improper motive. More specifically, the fact that Liliana raised the very issue presented in this appeal by means of a motion filed in October 1998, but took her motion off calendar without obtaining a ruling, shows she was aware of the dubious nature of her argument even then. In addition, Liliana has benefitted from the judgment she continues to challenge by receiving spousal support and an equalizing payment. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 37.)
Second, the proper procedural device for challenging a judge’s lack of authority is a quo warranto proceeding. Liliana never pursued such a proceeding, and argued in this appeal that she was not required to do so. (Davis v. Calaway (1975) 48 Cal.App.3d 309, 311 [failure to challenge an issue through proper means in the trial court supports a finding that the appeal is frivolous and pursued for an improper motive].)
Third, we have catalogued, ante, the many other attempts by Liliana to challenge the judgments, which reflect a course of conduct of continually challenging the same order without any basis in law. (See Weber v. Willard (1989) 207 Cal.App.3d 1006, 1010 [“[r]epeated litigation of matters previously determined by final judgment constitutes harassment and should be penalized”].)
Fourth, a rather significant misstatement in appellant’s opening brief calls into question the candor of Liliana and her counsel. At page 10 of appellant’s opening brief, counsel writes: “Other than by election, gubernatorial appointment or assignment by judicial council, ‘The jurisdiction of a court commissioner, or any other judicial officer, to try a cause derives from the parties’ stipulation.’ (In re Horton (1991) 54 Cal.3d 82, 90). (Emphasis added).” The first emphasized phrase, however, does not appear in the published case. The actual quote from In re Horton appears, ante, in section II, and uses the phrase “any other temporary judge, ” rather than “any other judicial officer[.]” The distinction is significant, because a retired judge sitting by assignment is not a temporary judge. On the same page in appellant’s opening brief, counsel writes: “Any order of judgment entered by a person acting under an unconstitutional delegation of judicial authority is void. [Citations.]” In all of the cases cited for this proposition, In re Horton, supra, 54 Cal.3d 82, In re Frye (1983) 150 Cal.App.3d 407, and People v. Tijerina (1969) 1 Cal.3d 41, the appellate court was considering the judicial acts of a court commissioner to whom the parties had not stipulated, a significantly different situation than the one presented by the facts of this case. While these cases may be useful in analyzing the case, counsel’s failure to acknowledge they are not on point, and indeed his apparent attempt to mislead this court by adding words to the true holding of the cases, is of serious concern to us. This is not a situation of employing bad judgment in the use of ellipses. Here, counsel actually added words to a quote from a Supreme Court opinion on a significant point of law, on which counsel’s argument rested. At oral argument of the sanctions motion, Liliana’s counsel took sole, full responsibility for these errors.
Accordingly, Angelo’s motion for sanctions is granted. We remand the matter to the trial court for two purposes: (1) to determine whether sanctions should be awarded against Liliana, or her appellate counsel, or both; and (2) to determine the appropriate amount of an award as sanctions to compensate Angelo for the attorney fees and other expenses he incurred on appeal, which award will deter Liliana and/or her appellate counsel from pursuing frivolous appeals in the future. If the trial court imposes sanctions against Liliana’s appellate counsel in an amount in excess of $1,000, it shall notify the State Bar, and counsel. (Bus. & Prof. Code, § 6086.7, subds. (a)(3) & (b).)
Disposition
The postjudgment orders are affirmed. The motion for sanctions on appeal is granted, and the matter is remanded for further proceedings in conformity with this opinion. Respondent to recover costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.