Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. MP18285
McAdams, J.
In June 2007, petitioner Constance Anne Dudley was found guilty of contempt for disobeying an April 2007 probate court order. That earlier order is the subject of a separate appeal (H031723), initiated in May 2007. In this proceeding, petitioner seeks extraordinary relief from the contempt finding.
As we explain, the trial court lacked jurisdiction to conduct contempt proceedings, because enforcement of the April 2007 order was stayed by petitioner’s appeal. For that reason, the contempt finding must be annulled. We shall therefore grant the petition and order issuance of a writ of habeas corpus as requested by petitioner.
BACKGROUND
The contempt challenged here arose out of an order entered April 13, 2007, which resulted from litigation in the probate court concerning the Lincoln Trust. That irrevocable trust was established by petitioner and her ex-husband Paul Laub in 1997, following their marital dissolution. Petitioner was a co-trustee of the trust until her resignation in 2005. She is also a beneficiary, entitled to life income from the trust, which is generated from commercial tenants’ rents.
Underlying Order
In its April 2007 order, the probate court made several determinations adverse to petitioner. First, it found that petitioner had relinquished the power to control trust assets when she resigned as a co-trustee. Second, it directed petitioner to turn over trust property, including bank accounts and rents, and to refrain from interfering with management of the trust. Third, it authorized secured borrowing for various expenditures by the current trustees, Paul Laub, Breck Tostevin, and Andrew Swartz, who are the real parties in interest here.
This second determination gave rise to the contempt proceedings at issue here. On that point, the order required Dudley “to turn over title and possession of any assets of the Lincoln Trust, including but not limited to accounts held by Fremont Bank,” to the real parties in interest here. It further required her to “relinquish control over the collection of all rents, either in her possession or anticipated in the future and any other management of the Lincoln Trust building.”
Appeal
On May 11, 2007, petitioner filed a notice of appeal from the April 2007 order.
Contempt Proceedings
On May 29, 2007, petitioner was served in open court with an order to show cause why she should not be held in contempt for disobeying the April 2007 order. The court set a hearing date for the order to show cause and established a briefing schedule. As stated in the order to show cause, petitioner was charged with violating the provisions of the April 2007 order “prohibiting [her] from collecting rents from the Lincoln Trust building tenants and engaging in other management activities on behalf of the Lincoln Trust and mandating that [she] turn over title and possession of any assets of the Lincoln Trust.”
A hearing on the contempt allegations was conducted over three court days in June 2007. Petitioner appeared in propria persona.
On the first day of the hearing, June 13, 2007, petitioner sought dismissal of the contempt proceedings on the ground that the trial court lacked jurisdiction, in light of the pending appeal. The trial court rejected petitioner’s argument. Citing Code of Civil Procedure sections 916, 917.1, 917.8, and 917.9, the court stated that those provisions “outline what is stayed by an appeal and what is not stayed by an appeal, and this proceeding would not be stayed by the appeal.” The court also denied petitioner’s request for a continuance to secure counsel and subpoena witnesses. The evidentiary hearing thus proceeded, with the parties offering testimony from several witnesses as well as documentary evidence on the question of whether petitioner had violated the April 2007 order.
On June 18, 2007, the trial court made an oral ruling finding petitioner in contempt. The court determined “beyond a reasonable doubt” that the April 2007 order was “a valid order”, that petitioner “had notice of that order”, and that she “had the ability to comply in the three areas” of the order giving rise to the contempt charges. The court found that petitioner had violated the order by writing letters that interfered with trust management and by collecting rent.
The court held two compliance review hearings later that month. At the second compliance hearing, held June 28, 2007, the court denied petitioner’s request to stay the contempt proceedings while she sought a writ of supersedeas from this court.
On that same date, June 28, 2007, the trial court signed a written order finding petitioner in contempt, which was served by mail on petitioner the following day. Consistent with its earlier oral ruling, the court found petitioner guilty of 10 counts of disobeying the April 2007 order, based on her acts of writing three letters that violated the order’s prohibition against interfering with management of the trust, and her conduct in collecting seven rent payments, in contravention of the order’s command that she refrain from doing so. The court imposed a sentence of 10 days in jail.
Writ Proceedings
On June 28, 2007, petitioner filed a petition for a writ of supersedeas in this court. On July 5, 2007, we issued a temporary stay of the April 2007 order “as well as all related contempt proceedings” pending consideration of the supersedeas petition. On August 7, 2007, we issued a writ of supersedeas staying enforcement of the order and the contempt proceedings, pending final determination of petitioner’s appeal.
On February 29, 2008, petitioner initiated this proceeding by filing a petition for a writ of habeas corpus. We issued an order to show cause. Real parties filed opposition to the petition, and petitioner replied.
ISSUE PRESENTED
The question before us is this: Were the contempt proceedings stayed by petitioner’s appeal, thereby depriving the trial court of jurisdiction?
DISCUSSION
To establish a framework for our analysis of this issue, we begin by briefly summarizing the relevant legal principles.
I. Legal Principles
A. Contempt
“The willful refusal to obey a valid court order is an act of contempt.” (In re Marcus (2006) 138 Cal.App.4th 1009, 1014; Code Civ. Proc., § 1209, subd. (a)(5).) “The elements of proof necessary to support punishment for contempt are: (1) a valid court order, (2) the alleged contemnor’s knowledge of the order, and (3) noncompliance.” (In re Marcus,at p. 1014.)
A person found in contempt “possesses no right of appeal, however, and review of the contempt judgment is by extraordinary writ.” (People v. Gonzalez (1996) 12 Cal.4th 804, 816; Code Civ. Proc., § 1222; id., § 904.1, subd. (a)(1)(B).) On writ review, the question is “whether the trial court had jurisdiction to impose the contempt order.” (In re Willon (1996) 47 Cal.App.4th 1080, 1089.) Where the trial court lacks jurisdiction, “there is no basis for the order of contempt and punishment may not thereafter be imposed.” (Elysium, Inc. v. Superior Court (1968) 266 Cal.App.2d 763, 765.)
B. Automatic Stay
Provisions concerning the automatic appellate stay are found both in the Code of Civil Procedure and in the Probate Code. The Probate Code governs appeals from “all judgments, orders and decrees” issued in probate proceedings. (Gold v. Superior Court (1970) 3 Cal.3d 275, 281.) The Probate Code thus controls here. But that code also includes some explicit cross-references to the Code of Civil Procedure. (See, e.g., Prob. Code, § 1310, subd. (d); id., subd. (e)(1).) Furthermore, development of the general principles concerning the automatic stay has largely taken place in the general civil arena. To that extent, cases decided under provisions of the Code of Civil Procedure may be relevant even in probate proceedings. For these reasons, we begin our summary of the general legal principles affecting the automatic stay by first describing the overarching concepts that are pertinent here. Next, we summarize the applicable Probate Code provisions. Third, we set forth the relevant exceptions.
1. General Principles
As set forth in the Code of Civil Procedure, and subject to enumerated exceptions, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby….” (Code Civ. Proc., § 916, subd. (a).) This automatic stay “protects the appellate court’s jurisdiction by preserving the status quo until the appeal is decided.” (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629; accord, Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) It “prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.” (Elsea v. Saberi, at p. 629; Varian Medical Systems, Inc. v. Delfino, at p. 189.)
“To accomplish this purpose, section 916, subdivision (a) stays all further trial court proceedings ‘upon the matters embraced’ in or ‘affected’ by the appeal. In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results.” (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 189.)
A contempt proceeding for violating the appealed judgment embraces or affects the appeal. “It cannot be doubted that a proceeding in contempt is a process for the enforcement or execution of an order or judgment of the court which is in the nature of an injunction.” (Smith v. Smith (1941) 18 Cal.2d 462, 465.) A contempt order’s “final validity may depend on the outcome of the appeal. We may assume that if and when the injunction is dissolved on appeal, the contempt order will then become functus officio because it would have no valid foundation upon which to base the contempt proceeding.” (Associated Lbr. etc. Co. v. Superior Court (1947) 79 Cal.App.2d 577, 581.) Thus, in cases where the automatic stay is in place, the trial court “is without power to enforce the order by proceedings for contempt.” (Gold v. Superior Court, supra, 3 Cal.3d at p. 278.)
2. Probate Code Provisions
Like other civil judgments and orders, probate court orders are generally subject to an automatic stay on appeal. (Kane v. Superior Court (1995) 37 Cal.App.4th 1577, 1584.) “Probate Code section 1310, subdivision (a), provides that, subject to listed exceptions, an appeal stays the operation of an order.” (Conservatorship of McElroy (2002) 104 Cal.App.4th 536, 555; see generally Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶¶ 7:80 to 7:88, pp. 7-28 to 7-28.2.)
3. Exceptions to the Automatic Stay
Two exceptions to the automatic stay are relevant here, as argued by petitioner and real parties in interest. One is the money judgment exception. (Prob. Code § 1310, subd. (e)(1); see Code Civ. Proc., § 917.1, subd. (a)(1).) The other allows a discretionary retention of trial court jurisdiction for the purpose of preventing loss or injury. (Prob. Code § 1310, subd. (b).) We discuss both in greater detail below.
The trial court cited two other provisions in concluding that it retained jurisdiction to conduct the contempt proceedings against petitioner, Code of Civil Procedure sections 917.8 and 917.9. Neither appears to have application here. The parties do not argue otherwise.
II. Analysis
Petitioner noticed her appeal of the underlying order on May 11, 2007, well before the trial court initiated and conducted contempt proceedings against her. Given that chronology, the trial court lacked jurisdiction to enforce the order via contempt, unless there is an available exception to the automatic appellate stay.
As explained below, we find no basis for applying either of the claimed exceptions here. Before addressing those substantive issues, however, we first consider a preliminary point raised by real parties concerning appealability.
A. Appealability
Real parties contend that the very aspects of the April 2007 order that are critical to the contempt finding were not stayed by petitioner’s appeal, because they are not appealable. According to real parties, “Probate Code § 1304(a) specifically exempts orders ‘[c]ompelling the trustee to submit an account or report acts as trustee’ and ‘accepting the resignation of the trustee’ from those orders which are subject to an appeal.” (See Prob. Code § 1304, subd. (a)(1), (2).) Real parties raised the same argument in their respondents’ brief on appeal in H031723.
We reject that contention. As explained in our opinion in the companion appeal (H031723), the April 2007 order provides specific instructions regarding interpretation of the trust and management of its internal affairs. To the extent that the order requires petitioner to turn over trust property and to refrain from interfering in trust management, it effectively determines petitioner’s rights vis-à-vis the trust. “An order determining the existence of a power, duty, or right under a trust is appealable.” (Esslinger v. Cummins (2006) 144 Cal.App.4th 517, 523.)
The April 2007 thus is appealable. Under Probate Code section 1310, petitioner’s appeal from that order automatically stayed its effect, unless an exception applies. We now consider whether either of the two claimed exceptions is available here.
B. Money Judgment Exception
“Perhaps the most common of the specified exceptions to the statutory automatic stay is … the money judgment exception….” (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1428.) That exception embraces orders directing the payment of money, unless a bond or undertaking is given. (Id. at p. 1429.)
Under the statutory Probate Code provisions governing appellate stays, the exception applies only to “a judgment for money or an order directing the payment of money….” (Prob. Code § 1310, subd. (e).) Under the Code of Civil Procedure, the money to be paid might consist of a “special fund.” (Code Civ. Proc., § 917.1, subd. (a)(1).) For judgment enforcement purposes, “money judgment” is statutorily defined in the Code of Civil Procedure as “that part of a judgment that requires the payment of money.” (Code Civ. Proc., § 680.270.)
In determining whether a particular order constitutes a money judgment, we apply the same general rules of construction used in interpreting other writings. (In re Marriage of Farner (1989) 216 Cal.App.3d 1370, 1375-1376.) “Thus, we construe the judgment as a whole to give effect to its obvious intention [citation], and in the process we can resort to the entire record supporting the judgment [citation].” (Id. at p. 1376.)
1. Amount Uncertain
Where a judgment or order does not specify an amount of money or a particular fund, it cannot be enforced as a money judgment. (Feldmeier v. Superior Court (1938) 12 Cal.2d 302, 307; cf. In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 499 [order requiring husband to pay wife “$100,000 and $160,000, respectively” was “unequivocally a money judgment”].)
In one case, for example, the trial court entered a “personal judgment against the trustee … for an undetermined amount.” (Feldmeier v. Superior Court, supra, 12 Cal.2d at pp. 306-307.) As our state’s high court explained: “Obviously no execution can be issued upon that portion of the judgment at this time. An execution must refer to the judgment and state ‘if it be for money the amount thereof, and the amount actually due thereon.’ [Citations.] Only after the liquidation plan has been carried out and the court makes a further order fixing a deficiency for which the depositary is liable will the plaintiffs have a [money] judgment upon which a writ of execution may issue.” (Id. at p. 307.)
Another case presented a related but somewhat different issue. (Baar v. Smith (1927) 201 Cal. 87.) In that case, the high court observed, there was “no serious contention” that the decree was a money judgment; for that reason alone, “the filing of a notice of appeal stays execution upon the judgment.” (Id. at p. 103.) Moreover, the court noted, the decree had “two or three alternatives that must be complied with before a money judgment could in any case take effect.” (Id. at pp. 103-104.) As the court observed, only “after failure to get both [alternative] sets of relief, is the money judgment against any of the defendants to be operative – but not otherwise. It will thus be seen that the money judgment is clearly ancillary and incidental only to the mandatory directions to which it is subjoined.” (Id. at p. 104.) “The appeal from these mandatory provisions of the decree will, therefore, necessarily stay execution upon the incidental and subordinate provisions thereof.” (Ibid.)
Real parties point out that the April 2007 order required petitioner “to return money (rental income) that belonged to the Lincoln Trust … and to turn over all assets of the Lincoln Trust held in bank accounts.” In their view, the April 2007 order “thus constituted ‘an order directing payment of money’ ” subsumed within the money judgment exception to the automatic stay.
In support of their argument, real parties rely on Smith v. Smith, supra, 18 Cal.2d 462. In that dissolution action, the trial court ordered the husband (1) “to move from the [family] home forthwith” and (2) “to authorize the broker to sell out the brokerage account [and] deliver the proceeds from said sale” to the parties’ attorneys to be placed in trust for support payments. (Id. at p. 463, italics omitted.) The California Supreme Court held that the first part of the order was stayed on appeal, describing it as “obviously mandatory on its face. It commands the doing of an affirmative act, to-wit: vacation of the property upon which petitioner is now residing.” (Id. at p. 465.) By contrast, the court characterized the second part of the order as “in effect either an order for the payment of money for the support of the children, or for the delivery of personal property. In either case its enforcement would not be stayed automatically by perfecting an appeal.” (Id. at p. 467.)
Smith does not support real parties’ position. First and foremost, that case was not decided under the Probate Code, which governs here. (Gold v. Superior Court, supra, 3 Cal.3d at p. 281.) Second, Smith is factually distinguishable. In Smith, the husband was ordered to turn over a specific brokerage account in his possession. (Smith v. Smith, supra, 18 Cal.2d at p. 463.) In this case, by contrast, as the April 2007 order reflects, the court could not “determine from the evidence offered whether any assets remain under the control of” petitioner. Although the court ordered petitioner “to turn over title and possession of any assets of the Lincoln Trust, including but not limited to accounts held by Fremont Bank,” it did not find that petitioner in fact held any such bank account or other asset. Thus, unlike Smith, there was no specific amount, fund, or property on which the April 2007 order could operate here.
Real parties also rely on In re Ringgold (2006) 142 Cal.App.4th 1001. There, a former trustee was found in contempt for refusing to turn over trust property held in a storage facility. (Id. at pp. 1003-1004.) In her petition for writ of habeas corpus, she argued that “the trial court lacked jurisdiction to make the contempt finding because the December 16, 2005 order was the subject of a pending appeal.” (Id. at p. 1009.) Rejecting that argument, the Court of Appeal concluded that the “order directing the delivery of personal property was not automatically stayed by the appeal therefrom.” (Id. at p. 1010.) As the court explained, the applicable exception to the automatic stay was found in Code of Civil Procedure section 917.2. (In re Ringgold, at p. 1010.) “Section 917.2 provides, ‘The perfecting of an appeal shall not stay enforcement of the judgment or order of the trial court if the judgment or order appealed from directs the assignment or delivery of personal property, including documents ... unless an undertaking ... is given....’ The December 16, 2005 order indisputably directs the delivery of personal property – documents and keys. Ms. Ringgold provided no undertaking – therefore, the December 16, 2005 order was not stayed.” (Ibid.)
Ringgold does not assist real parties. For one thing, its analysis is not based on the Probate Code’s money judgment exception to the automatic appellate stay. Rather, the Ringgold decision rests on Code of Civil Procedure section 917.2, which provides an exception to the automatic stay “if the judgment or order appealed from directs the assignment or delivery of personal property, including documents ….” Although the Ringgold court did not address the issue, we question the applicability of that provision in this probate proceeding, since the governing Probate Code provision contains no such exception. (Prob. Code § 1310; see Gold v. Superior Court, supra, 3 Cal.3d at p. 281; cf. Prob. Code § 1000.) Moreover, Ringgold is factually distinguishable. There, the underlying order “indisputably directs the delivery of personal property” in the former trustee’s possession. Here, as just explained, the underlying order includes no findings that petitioner in fact held any property belonging to the trust.
2. Ancillary Relief
There is an additional reason why the money judgment exception is inapplicable here: the court’s directive to turn over unspecified trust property is incidental to other aspects of the April 2007 order, such as its determination that petitioner’s resignation as trustee stripped her of the right to control trust assets and its affirmation of real parties’ right to manage the trust, including by borrowing against trust property for various expenditures. (Baar v. Smith, supra, 201 Cal. at p. 104 [“the money judgment is clearly ancillary and incidental only to the mandatory directions to which it is subjoined”].) Thus, even if it were more certain, and even if it were within the purview of the Probate Code’s stay provisions, that directive would not operate to transform the entire order into one directing the payment of money.
In sum, the April 2007 order does not fit within the money judgment exception to the automatic stay on appeal.
C. Injury Prevention Exception
Another exception to the automatic appellate stay permits the trial court’s discretionary retention of jurisdiction in limited circumstances, notwithstanding the pendency of an appeal. (Prob. Code, § 1310, subd. (b).) As currently enacted, it provides: “Notwithstanding that an appeal is taken from the judgment or order, for the purpose of preventing injury or loss to a person or property, the trial court may direct the exercise of the powers of the fiduciary, or may appoint a temporary guardian or conservator of the person or estate, or both, or special administrator, to exercise the powers, from time to time, as if no appeal were pending. All acts of the fiduciary pursuant to the directions of the court made under this subdivision are valid, irrespective of the result of the appeal. An appeal of the directions made by the court under this subdivision shall not stay these directions.” (Ibid.)
Similar provisions have been extant for many years. (See Gold v. Superior Court, supra, 3 Cal.3d at pp. 281-285 [discussing provisions of predecessor statute governing exception in conservatorship proceedings, Prob. Code former § 2102, added by Stats.1957, ch. 1902, § 1]; Conservatorship of Hart (1991) 228 Cal.App.3d 1244, 1252-1253 [discussing provisions of predecessor statute governing exception in conservatorship proceedings, Prob. Code former § 2751, added by Stats.1979, ch. 726, § 3];); Kane v. Superior Court, supra, 37 Cal.App.4th at pp. 1584-1587 [discussing provisions of predecessor statute governing injury prevention exception, Prob. Code former § 7241, enacted by Stats.1990, ch. 79, § 14, amended by Stats.1996, ch. 563, § 21].) Under these provisions, the trial court may use its “substituted judgment” to authorize a fiduciary to act notwithstanding the pendency of an appeal. (Conservatorship of Hart, supra, 228 Cal.App.3d at pp. 1250-1253.) “In essence the statute permits the court to substitute its judgment for that of a conservatee.” (Id. at p. 1250.) The statute “permits such an order only ‘for the purpose of preventing injury or loss to person or property.’ ” (Id. at p. 1261, quoting predecessor statute, Prob. Code former § 2751, subd. (b).)
This exception to the automatic appellate stay must be narrowly construed. (Gold v. Superior Court, supra, 3 Cal.3d at p. 282.) “By specifically conditioning the application of the statute upon the prevention of injury or loss to person or property the Legislature has determined that the exception should be operative only in a limited class of cases.” (Id. at p. 281.)
Furthermore, the exception “requires an affirmative showing in the trial court of extraordinary circumstances involving potential injury or loss of the sort contemplated by the statute before the exception applies.” (Gold v. Superior Court, supra, 3 Cal.3d at p. 282 [discussing Prob. Code, former § 2102].) Its application “must be clearly justified by a showing of risk of imminent injury or loss.” (Conservatorship of Hart, supra, 228 Cal.App.3d at p. 1261.)
Here, real parties did not specifically invoke the trial court’s discretionary authority to retain jurisdiction pending appeal, nor did they make the requisite factual showing of potential loss below. (Cf. Kane v. Superior Court, supra, 37 Cal.App.4th at p. 1579 [“trial court made a finding” that “real party in interest would suffer irreparable loss”].) Real parties’ concerns about petitioner’s continued interference in the management of the trust, while legitimate, do not justify an end run around the statutory requirements, which are intended to protect our appellate jurisdiction. In short, the injury prevention exception does not apply here.
D. Other Contentions
Petitioner raises two other grounds for annulling the contempt finding against her, arguing (1) that the order to show cause was defective for lack of signature by all three trustees, and (2) that the underlying April 2007 order was void, because the family court – not the probate court – had jurisdiction. In light of our determination that the trial court lacked jurisdiction because of the pending appeal, we need not consider those arguments.
CONCLUSION
The April 2007 order was automatically stayed by petitioner’s appeal. For that reason, the trial court lacked jurisdiction “to enforce the order by proceedings for contempt.” (Gold v. Superior Court, supra, 3 Cal.3d at p. 278.) The finding of contempt must therefore be annulled.
DISPOSITION
The petition for a writ of habeas corpus is granted. Let a writ of habeas corpus issue, directing the trial court to annul its finding of contempt against petitioner.
I CONCUR: Bamattre-Manoukian, Acting P.J.
Mihara, J., Concurring in the Judgment.
Petitioner Constance Anne Dudley challenges the trial court’s contempt order. She contends that the trial court lacked jurisdiction to find her in contempt of its April 2007 order because the April 2007 order was automatically stayed when she filed a timely notice of appeal prior to the initiation of the contempt proceedings. Although I agree with my colleagues that the trial court lacked jurisdiction, I write separately to bring, in my view, proper focus on the precise issue.
I. Background
In September 2006, real parties in interest Paul Laub, Breck Tostevin, and Andrew Swartz, the trustees of the Lincoln Trust (the trustees), filed a petition under Probate Code section 17200 seeking a court order construing the trust, requiring Dudley to turn over all trust property in her possession, and directing Dudley to relinquish control over the management of the Lincoln Trust Building.
In April 2007, the trial court issued an order in which it concluded that it “cannot determine from the evidence offered whether any assets remain under the control of Constance Dudley.” Nevertheless, the court ordered Dudley to “turn over title and possession of any assets of the Lincoln Trust, including but not limited to accounts held by Fremont Bank, to” the trustees. The court also ordered Dudley to “relinquish control over the collection of all rents, either in her possession or anticipated in the future and any other management of the Lincoln Trust building.”
On May 11, 2007, Dudley filed a timely notice of appeal from the court’s April 2007 order.
On May 29, 2007, the trustees applied for an order requiring Dudley to show cause why she should not be held in contempt of the court’s April 2007 order. The trustees alleged that Dudley had violated the court’s order by interfering with the trustees’ collection of rents from Lincoln Trust Building tenants, refusing to turn over past rents she had collected from those tenants, and failing to provide documents showing where those past rents had been deposited. On May 29, 2007, the court ordered Dudley to show cause why she should not be held in contempt for violating the court’s April 2007 order.
At the June 2007 contempt hearing, the trustees contended that Dudley had acted in contempt of the court’s order by failing to turn over past rents and interfering with the trust’s collection of rents after the court’s April 2007 order. Dudley argued that the court lacked jurisdiction to hold her in contempt because she had filed a timely appeal from the April 2007 order. The trial court rejected her argument that it lacked jurisdiction. The court found Dudley in contempt for collecting seven rent payments from three tenants after the April 2007 order, writing to one of the tenants after the April 2007 order to tell him not to pay his rent to the trustees, and writing to the trustees after the April 2007 order to tell them to stop trying to collect rent from the tenants. The court imposed a ten-day jail sentence, but it suspended the sentence pending further compliance hearings.
In July 2007, this court granted Dudley’s request for a temporary stay of the contempt proceedings. In August 2007, this court granted Dudley’s petition for a writ of supersedeas staying enforcement of the court’s April 2007 order and “all related contempt proceedings” pending determination of Dudley’s appeal. In February 2008, Dudley initiated this challenge to the court’s June 2007 contempt order by filing a petition for a writ of habeas corpus. Dudley’s appeal from the April 2007 order has remained pending throughout this writ proceeding.
II. Analysis
Dudley maintains that the trial court lacked jurisdiction to hold her in contempt of its April 2007 order in June 2007, because the court’s April 2007 order was automatically stayed under Probate Code section 1310 when she filed her notice of appeal in May 2007. The trustees contend that the April 2007 order was not automatically stayed because it was “an order directing payment of money,” which fell within an exception to Probate Code section 1310’s automatic stay provision.
Probate Code section 1310, subdivision (a) provides: “Except as provided in subdivisions (b), (c), (d), and (e), an appeal pursuant to Chapter 1 (commencing with Section 1300) stays the operation and effect of the judgment or order.” (Prob. Code, § 1310, subd. (a).) Probate Code section 1310, subdivision (e) provides: “An appeal shall not stay the operation and effect of a judgment for money or an order directing payment of money . . . .” (Prob. Code, § 1310, subd. (e).)
The trustees do not contend that any subdivision other than subdivision (e) excluded the April 2007 order from subdivision (a)’s automatic stay.
Dudley’s appeal from the court’s April 2007 order was unquestionably “an appeal pursuant to Chapter 1 (commencing with Section 1300)” to which Probate Code section 1310 applied. “With respect to a trust, the grant or denial of the following orders is appealable: [¶] (a) Any final order under Chapter 3 (commencing with Section 17200) of Part 5 of Division 9, except the following: [¶] (1) Compelling the trustee to submit an account or report acts as trustee. [¶] (2) Accepting the resignation of the trustee.” (Prob. Code, § 1304.) Dudley’s appeal was from an order under Probate Code section 17200, and the order did not fall within either of the statutory exceptions to appealability. Hence, Dudley’s appeal brought the court’s April 2007 order within the provisions of Probate Code section 1310.
The trustees suggest that the court’s April 2007 order was not appealable because it was an order accepting Dudley’s resignation. While that portion of the order was not appealable, that circumstance did not prevent Dudley from appealing from the appealable portions of the order.
The trustees contend that the April 2007 order’s provisions directing Dudley to turn over any trust assets to the trustees was an order “directing payment of money” within the meaning of Probate Code section 1310, subdivision (e). The portion of the April 2007 order directing Dudley to turn over trust assets was not the premise upon which Dudley was found in contempt. She was found in contempt for violating a separate portion of the April 2007 order which directed her to relinquish control over the collection of rents. The factual basis for finding Dudley in contempt was her collection of rents and her interference with the trustees’ efforts to collect rents, not her failure to turn over trust assets to the trustees.
The possibility that a portion of the April 2007 order, which was not the basis for the contempt proceedings, may fall outside the automatic stay is irrelevant to the question of whether the trial court had jurisdiction to find Dudley in contempt of the portion of the April 2007 order that is subject to the automatic stay. When one portion of an order falls within the automatic stay, any other portion of the order that is incidental to the stayed portion is also subject to the automatic stay. (Mark v. Superior Court (1900) 129 Cal. 1, 7.) If that other portion of the order is not incidental to the stayed portion and falls within an exception to the automatic stay, the automatic stay does not apply to that other portion. (Smith v. Smith (1941) 18 Cal.2d 462, 467.) Whether or not another portion of the order falls within an exception to the automatic stay, the automatic stay remains applicable to the portion to which no exception applies.
Here, even if the portion of the order directing Dudley to turn over any trust assets to the trustees was an order “directing payment of money,” and was not incidental to the portion of the order directing Dudley to relinquish control over the collection of rents, the portion of the order that would not be subject to the automatic stay would be only the portion directing Dudley to turn over trust assets. The portion of the order directing Dudley to relinquish control over the collection of rents would remain subject to the automatic stay. The contempt proceedings were based solely on Dudley’s violation of the portion of the order directing her to relinquish control over the collection of rents, and this portion of the court’s April 2007 order was indisputably subject to the automatic stay. Consequently, the trial court lacked jurisdiction to hold contempt proceedings based on Dudley’s violation of this portion of the order during the pendency of Dudley’s appeal.