Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County No. GIN840749, John S. Meyer, Judge.
McCONNELL, P. J.
Philip Millenbah appeals an order awarding sanctions against him and in favor of George H. Kaelin, III and the law firm Endeman, Lincoln, Turek and Heater, LLP (together Kaelin), and Darrell Daugherty and Mary Vivanco (together Daugherty), under Code of Civil Procedure section 128.7 for filing a motion to set aside the dismissal of the action entered after the parties settled the case and Millenbah accepted proceeds of the settlement. Millenbah raises several procedural issues, none of which has merit. We affirm the order.
All statutory references are to the Code of Civil Procedure.
The sanctions order was against Millenbah and his counsel, Mark Hooshmand, jointly and severally. Hooshmand has not appealed the order, however, and thus it is not reviewable as to him. (Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 42 (Calhoun).)
BACKGROUND
In January 2005 Millenbah filed a first amended complaint against the defendants, alleging Daugherty and Kaelin conspired to defraud Millenbah of his interest in a business that was the subject of previous litigation, and in doing so Kaelin committed malpractice.
Attorney Gregory Burke represented Millenbah. In November 2005 Burke advised defense counsel he intended to withdraw from Millenbah's representation, but he never filed a motion to withdraw or any substitution of attorneys and continued to be Millenbah's attorney of record throughout the duration of the case.
This suit and other matters were settled in a global agreement Millenbah signed on December 19, 2005. On December 21, the defendants provided Burke with a check for the settlement amount due Millenbah, and on December 23 Burke cashed the check. Burke then sent Millenbah his share of the proceeds. On December 28, pursuant to the parties' request, the court dismissed the action with prejudice.
In a February 2006 letter, Millenbah notified Daugherty's counsel, John L'Estrange, that Burke resigned as his counsel in November 2005 and lacked authority to settle the case or request a dismissal. Millenbah stated he was "willing to discuss settling the case," and asked for L'Estrange's prompt response "so that these cases are not refiled." L'Estrange forwarded the letter to Burke, who affirmed he represented Millenbah throughout this suit.
In an April 2006 letter to L'Estrange, Millenbah's new counsel, Hooshmand, requested a discussion regarding the dismissal of the suit, "to avoid the need for further litigation." L'Estrange did not respond since the case was settled.
On July 12, 2006, Millenbah, through Hooshmand, filed a motion to set aside the dismissal of the action, alleging Burke had no authority to settle or dismiss it. At an August 3 ex parte hearing, the court continued the hearing on Millenbah's motion to give the defendants the opportunity to file motions for sanctions under section 128.7. The court designated August 11 as the last day for the defendants to personally serve sanctions motions and September 1 as the last day for them to file the motions. It scheduled a hearing for September 22.
On August 11, the defendants personally served their motions for sanctions against Millenbah and Hooshmand at Hooshmand's office. On September 1 the defendants filed their motions with the court. At the September 22 hearing, the court affirmed its tentative ruling denying Millenbah's motion to set aside the dismissal and granted the defendants' motions for sanctions. The court found Millenbah's motion was not supported by any evidence or legal authority, and awarded Kaelin and Daugherty each $5,000 in sanctions against Millenbah and Hooshmand on a joint and several basis. The court explained that Millenbah and Hooshmand "seem oblivious to the fact that the dismissal of the lawsuit was part of the consideration for the settlement funds [Millenbah] received."
Millenbah asserts "it is unclear whether a minute order has ever been prepared." The record, however, contains the court's September 22, 2006 order.
DISCUSSION
I
Jurisdiction
Preliminarily, we dispose of Kaelin's contention we lack jurisdiction to consider the appeal because the sanctions order is nonappealable. Under section 904.1, subdivisions (a)(11) and (12), an interlocutory judgment or order for sanctions is immediately appealable if the amount of sanctions exceeds $5,000. Under subdivision (b) of section 904.1, sanctions orders of lesser amounts are reviewable on appeal of the final judgment, or at the court's discretion by way of a petition for extraordinary writ. (See also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 2.82, p. 2-48 (hereafter Eisenberg).) Under the " 'one final judgment rule,' " to prevent piecemeal litigation an appeal ordinarily lies only from a final judgment that disposes of the action. (Griset v. Fair Policital Practices Com. (2001) 25 Cal.4th 688, 697.)
The defendants assert the two $5,000 sanctions here may not be aggregated to satisfy the monetary requirement for a direct appeal. They cite Calhoun, supra, 20 Cal.App.4th 39, which concerned former section 904.1, subdivision (k)'s provision that an order for sanctions in excess of $750 was immediately appealable. The court held that sanctions against the plaintiff's attorney of $525 to one defendant and $525 to another defendant could not be aggregated to satisfy the $750 threshold for immediate appealability. (Calhoun, at p. 44.) The court noted that before 1990 all monetary sanctions orders were directly appealable, regardless of amount, and by adding subdivision (k) to section 904.1 the Legislature intended to restrict the number of direct appeals from sanctions orders. The court concluded that "[a]ggregation of multiple sub-$750 sanction orders to create appealability would derogate this restriction on the right of appeal. . . . [I]t would mean the return of many of the 'small potatoes' appeals of which the Legislature meant to relieve the appellate courts." (Calhoun, at p. 44.)
In Calhoun, however, the monetary sanctions arose from the plaintiff's motion for a change of venue, and the appeal was brought before a final judgment was entered. (Calhoun, supra, 20 Cal.App.4th at p. 41.) Here, the sanctions ruling was not intermediate. Rather, sanctions were imposed after a dismissal of the action that completely disposed of the matter in controversy. Thus, the order is appealable regardless of the amounts of the sanctions. (Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 970; Eisenberg, supra, at ¶ 2.82, p. 2-48.)
II
Section 128.7A
Millenbah contends the awards must be reversed because the defendants did not comply with the safe harbor provision of section 128.7.
Millenbah's notice of appeal states the appeal is from all orders pertaining to his motion to set aside the dismissal, but he does not challenge the court's finding that his motion lacked merit. He challenges the sanctions order only.
"Section 128.7 requires that at least one attorney, or the party if he/she is not represented by an attorney, sign all pleadings, petitions, notice of motions and other similar papers. [Citation.] The signature indicates that the attorney, or party, certifies that: the paper is not being presented for an improper purpose; the legal contentions are warranted by law or nonfrivolous argument for extension, modification or reversal of existing law; the allegations and factual contentions have evidentiary support or are likely to have such support after a reasonable opportunity to further investigate; and the denials of factual contentions are warranted by the evidence. [Citation.] If the court determines, after notice or a reasonable opportunity to respond, that the attorney or party improperly certified the document, it may impose a proper sanction." (Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 130.)
Section 128.7 provides that notice of a sanctions motion shall be served as provided in section 1010, but the motion shall not be filed with the court "unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected." (§ 128.7, subd. (c)(1), italics added.) The motion here was served on the defendants on August 11, 2006, and it was filed on September 1, the 21st day after service. Since the responding party has 21 full days to withdraw the pleading at issue, we agree with Millenbah that the filing of the motion on the 21st day does not comport with the 21-day rule. (§ 12.) The 21-day period, however, is inapplicable when the court has designated "any other period" as a safe harbor. (§ 128.7, subd. (c)(1) .) The court designated a 20-day period and Millenbah has not shown the court abused its discretion by doing so. The defendants complied with the court's schedule, and thus Millenbah's position lacks merit.
Section 12 provides: "The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded."
Contrary to Millenbah's assertion, the defendants did not waive their argument pertaining to a safe harbor period of less than 21 days by not raising it at the trial court. Principals of waiver, or forfeiture, ordinarily apply to an appellant's failure to preserve issues for appeal. In any event, in his reply papers, Kaelin emphasized the safe harbor period may be " 'any other period as the Court may prescribe,' " and that he followed the court's briefing schedule. Moreover, the matter is purely legal and may be raised for the first time on appeal. (Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1287-1288.)
B
Millenbah also complains that the defendants did not serve him with notice of the date of hearing, and thus he was "unaware of whether the motions were moving forward." Section 1010 requires that a motion must state when it will be made. Millenbah's assertion is spurious as the defendants' notices of motion prominently display the September 22, 2006 hearing date in their captions.
Equally meritless is Millenbah's contention the defendants' notices of motion did not designate the offending pleading. Daugherty's notice of motion, which Millenbah cites, states the "motion will be made on the ground that the motion to set aside the dismissal of the complaint . . . is frivolous and maintained for an improper purpose, and is designed solely to [h]arass and extort money from defendants." Kaelin's notice of motion states the motion was made "on the grounds that Plaintiff Millenbah's Motion To [Set] Aside Dismissal of Complaint violates the implied certification requirement set forth in . . . section 128.7."
C
Additionally, Millenbah asserts the court failed to consider whether the defendants "exercised due diligence" in seeking sanctions. Section 128.7, subdivision (c) provides that "[i]n determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence."
In his opening brief, Millenbah neither develops an argument nor cites any supporting authority. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's [] issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.) " 'A point not presented in a party's opening brief is deemed to have been abandoned or waived.' " (Wurlz v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.)
In his reply brief, Millenbah asserts the defendants lacked diligence because they ignored Hooshmand's April 2006 overture to renegotiate the settlement. Again, however, Millenbah cites no authority supporting the notion that sort of conduct could constitute a lack of diligence. We deem the matter forfeited on appeal.
In any event, there was no lack of due diligence. The due diligence requirement concerns any delay in filing a sanctions motion (Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1126), and there was no delay here.
D
Lastly, Millenbah asserts the sanctions were improperly intended to punish him. He cites Daugherty's memorandum of points and authorities, which argued the "only way to prevent Millenbah and Hooshmand from continuing their efforts to harass defendants is to punish them financially — sanction them heavily." " '[S]anctions under section 128.7 are not designed to be punitive in nature but rather to promote compliance with statutory standards of conduct.' " (Malovec v. Hamrell (1999) 70 Cal.App.4th 434, 441; § 128.7, subd. (d) [sanction "shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated"].)
The court's order does not suggest it was swayed by the argument in Daugherty's memorandum pertaining to punishment. Rather, the order states: "The Court has considered the conduct of the parties, and the reasonable amount of time and effort required for defendants to oppose the motion to set aside the dismissal and to bring these [sanctions] motions, in determining the amount of sanctions that will be 'sufficient to deter repetition of this conduct or comparable conduct by others similarly situated.' " We find no error.
DISPOSITION
The order is affirmed. The defendants are entitled to costs on appeal.
WE CONCUR: BENKE, J., NARES, J.