Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Eugenia A. Eyherabide, Judge, Super. Ct. No. GIC863832
McCONNELL, P. J.
Lindsey Stewart, in propria persona, appeals an order for the issuance of a bench warrant for her arrest, with bail set at $25,000, stemming from her knowing and willful failure to submit to a debtor's examination. The Poway Unified School District (the District) moves for dismissal of the appeal on the ground that a party in flagrant defiance of the superior court's orders may not seek our assistance. Under a well established line of authority, we grant the motion and dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
We repeat the facts from our opinion in Poway Unified School District v. Lindsey Stewart (June 6, 2007, D048901) [nonpub. opn.]) (PUSD v. Stewart I).
Stewart's son was a special education student in the District, and since 1999 Stewart has filed at least 10 unsuccessful administrative actions on his behalf against the District. On August 11, 2005, the California Special Education Hearing Office (SEHO) granted in part the District's motion in one of the actions for sanctions against Stewart for her failure to notify it and SEHO in a timely manner of her withdrawal of her request for a hearing. The order explained that a hearing was scheduled for April 27, 2005, at 9:30 a.m., and the District appeared but Stewart did not appear. Stewart had sent letters by facsimile to the District and the hearing officer at 6:30 the morning of the hearing "that indicated she would not be attending the hearing because of a medical condition and was 'closing the case without prejudice.' "
On August 31, SEHO issued an order granting the District $3,091.25 in sanctions and costs against Stewart. The order noted the expenses would not have been incurred had Stewart given adequate notice she would not attend the hearing. The order also noted there "was no specific objection by Ms. Stewart to the amount alleged, other than she did not feel she should have to pay it." The order directed Stewart to pay the sanctions by September 15, 2005.
Stewart refused to pay the District, and it sought enforcement through the Office of Administrative Hearings, Special Education Division (OAH). In a January 2006 order, however, the OAH denied the request on the grounds the "SEHO sanctions order is enforceable in court, and the District has not established why a further order from OAH is necessary or warranted."
In a March 2006 letter to Stewart, the District demanded payment. Stewart responded in a letter, "I will not be sending a check in the amount of $3,091.00 for undeserved sanctions." (Boldface omitted.)
In April 2006 the District filed a petition in the superior court for enforcement of the sanctions order. Stewart responded by removing the case to federal court alleging federal question jurisdiction. After Stewart filed numerous pleadings, the federal court remanded the action to state court, rejecting her argument the District's action pertained to the federal Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.). The court explained the District's action "does not seek to address Stewart's child's IEP [individualized education program], but simply seeks enforcement of an order for $3,091.25 in sanctions ordered by the administrative hearing officer."
Also in April 2006 the OAH ordered Stewart to pay the District $1,032 in sanctions in another action for her bad faith in sending it by facsimile 651 pages of "largely irrelevant material."
After a hearing on May 25 and June 6, 2006, the court entered a judgment granting the District's petition and ordering Stewart to pay the District $3,091.25 by June 16, 2006. Stewart did not comply and appealed the judgment.
We asked the parties for supplemental briefing on whether this appeal is properly before this court, as the amount in controversy reflects that the matter is of limited jurisdiction (Code of Civ. Proc., §§ 85, 86), and we have considered their responses. As the superior court gave the action a general jurisdiction case number, and we have decided an earlier appeal, we exercise our discretion to decide the appeal.
On September 26, 2006, the District served Stewart with a subpoena duces tecum. The court ordered Stewart to appear for a debtor's examination on October 20, but she failed to appear. The court issued a bench warrant for her arrest and fixed bail at $5,000.
On December 21, 2006, the District moved for an order to compel Stewart's compliance with the subpoena duces tecum, to continue the debtor's examination, and for attorney fees and costs. The court ordered Stewart to appear for a debtor's examination on January 4, 2007, and to produce the documents specified in the subpoena duces tecum. The court also ordered Stewart to pay the District $1,925 in attorney fees within 10 days. Additionally, the court recalled the bench warrant at the District's request, because according to the court, the District's counsel "felt it was more appropriate to deal with this debtor's examination without a bench warrant in existence."
Stewart appeared on January 4, 2007, but she did not produce subpoenaed documents. Further, after the court denied her request for a continuance, she left the courthouse during a recess before the debtor's examination began. The court stated on the record, "It is very clear to this Court that she willingly and knowingly violated the court order to participate in the debtor's examination." The court issued a bench warrant for her arrest and fixed bail at $25,000, and granted the District $568.75 in additional attorney fees and costs. The San Diego County Sheriff's Department made five unsuccessful attempts to personally serve Stewart with the warrant.
In June 6, 2007, this court issued PUSD v. Stewart I, in which we affirmed the judgment against Stewart for $3,091.25 in sanctions awarded the District in the administrative proceedings.
DISCUSSION
Stewart has filed a brief that is essentially unintelligible. She appears to argue that the issuance of the January 4, 2007 bench warrant with bail set at $25,000 violated her constitutional rights.
The District has moved to dismiss the appeal based on Stewart's voluntary refusal to submit to a debtor's examination. "It is well settled that this court has the inherent power to dismiss an appeal by any party who has refused to comply with orders of the trial court. [Citations.] As the Supreme Court explained in MacPherson v. MacPherson [(1939) 13 Cal.2d 271,] 277: 'A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his [or her] demands while he [or she] stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.]' No judgment of contempt is required as a prerequisite to our exercising the power to dismiss." (TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 379.) "Dismissal is not ' "a penalty imposed as a punishment for criminal contempt. It is an exercise of a state court's inherent power to use its processes to induce compliance" ' with a presumptively valid order." (Say & Say v. Castellano (1994) 22 Cal.App.4th 88, 94.)
Stewart filed no opposition to the motion.
"[T]he inherent power to dismiss an appeal has been exercised in several cases where a party failed or refused to appear for a judgment debtor examination." (TMS, Inc. v. Aihara, supra, 71 Cal.App.4th at p. 380.) In Tobin v. Casaus (1954) 128 Cal.App.2d 588,the court entered a money judgment against the defendant, who appealed without seeking a stay of execution. The court appointed a receiver to take possession of the defendant's assets, and a debtor's examination was scheduled. The defendant did not appear and the court issued a bench warrant for his arrest. He likewise failed to appear on a later date. The Court of Appeal dismissed the appeal for his knowing and willful violation of court orders. (Id. at pp. 590-592; see also Say & Say v. Castellano, supra, 22 Cal.App.4th at p. 94; Stone v. Bach (1978) 80 Cal.App.3d 442, 443-444.)
We grant the District's motion and dismiss the appeal. It is undisputed that Stewart failed to appear for a debtor's examination on October 20, 2006, and the court found her in contempt and issued a bench warrant for her arrest; and she knowingly and willfully violated the trial court's order that she submit to a debtor's examination on January 4, 2007, and the court again found her in contempt and issued a second bench warrant for her arrest. Although Stewart avoided personal service of the January 4 bench warrant, we know she had actual knowledge of it because in April 2007, in connection with PUSD v. Stewart I, she asked this court to stay the bench warrant because she feared arrest if she appeared at oral argument.
Further, there is no suggestion that during the pendency of this appeal Stewart has attempted to rectify the problem. Stewart "remains 'flagrantly and persistently [in defiance of] court order[s and thus] is not entitled . . . to ask the aid and assistance of a court.' " (Say & Say v. Castellano, supra, 22 Cal.App.4th at p. 94.) She has represented herself throughout the proceedings, but litigants appearing in propria persona are subject to the same rules as parties represented by counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
DISPOSITION
The appeal is dismissed. The District is entitled to costs on appeal.
WE CONCUR: BENKE, J., McINTYRE, J.
Additionally, we grant the District's unopposed request of May 3, 2007, to augment the record, and its August 27, 2007, request for judicial notice.