In these six consolidated appeals Joseph L. Alioto, Angela M. Alioto, and Alioto & Alioto (hereinafter, Joseph L. Alioto Group), Joseph M. Alioto and John I. Alioto,
Several of the appeals are untimely or are from nonappealable orders and, therefore, must be dismissed. With respect to the remaining appeals, we shall exercise our power to stay or dismiss them based on appellants' record of persistent willful disobedience of the trial court's orders. (See Moffat v. Moffat (1980) 27 Cal.3d 645, 652, 653 [165 Cal.Rptr. 877, 612 P.2d 967]; MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277 [89 P.2d 382]; Say & Say v. Castellano (1994) 22 Cal.App.4th 88, 94 [27 Cal.Rptr.2d 270]; Stone v. Bach (1978) 80 Cal.App.3d 442, 448 [145 Cal.Rptr. 599].)
In 1989, Alioto Fish Company (Alioto Fish Co.) entered into a settlement agreement with, inter alia, Joseph L. Alioto, Joseph M. Alioto, John I. Alioto, Angela M. Veronese (Alioto), Michael J. Alioto, and Alioto & Alioto. The settlement agreement resolved all outstanding issues concerning the underlying judgment except for Alioto Fish Co.'s right to recover postjudgment attorney fees. Appellants placed $231,000 in escrow pending
The current appeals arise from the efforts of Alioto Fish Co. to collect additional attorney fees. On June 5, 1991, the court filed an order granting Alioto Fish Co.'s motion for an additional $141,341.25 in attorney fees and $648.15 in costs incurred in collecting the liquidated sum of $231,000 (hereinafter, the June 5, 1991, Fee Order.) The motion was based on paragraph 14 of the settlement agreement and on Code of Civil Procedure section 128.5. Notice of entry was served by mail on June 7, 1991.
After efforts to collect on this fee order failed, the court, on December 30, 1991, granted Alioto Fish Co.'s request for an order reinstating a receiver and granting other relief (hereinafter, the December Receiver Order). The December Receiver Order required, inter alia, that the Joseph L. Alioto Group, Joseph M. Alioto, and John I. Alioto deposit their income into the receiver's bank account, and provide information concerning their various accounts. It further specified how the deposited income was to be allocated among the receiver's expenses and fees, Alioto Fish Co.'s attorney fees award, and appellants.
The December Receiver Order also provided that "[i]n the event the Judgment Debtors ... fail to comply with the terms of this order, sanctions shall be assessed at the rate of five hundred dollars ($500.00) per day of non-compliance...." Notice of entry was served by hand on December 30, 1991. Again no timely appeal was filed with respect to this order.
Appeal No. A058244
On April 3, 1992, the court granted a motion by the receiver to compel compliance with the receiver order and assessed $18,000 in sanctions against each member of the Joseph L. Alioto Group and John I. Alioto (hereinafter,
On June 3, 1992, the court granted yet another motion by the receiver to compel compliance with the receiver order and imposing sanctions. Two separate orders imposing sanctions were filed. The first imposed sanctions only against Joseph L. Alioto, John I. Alioto, and Alioto & Alioto. A second order imposed sanctions on Joseph M. Alioto (hereinafter, collectively, the June Sanctions Orders.)
No appeal was taken from the April Sanctions Order. Instead, on July 9, 1992, the Joseph L. Alioto Group filed a notice of appeal from: (1) the June 3, 1992, order denying reconsideration of the April Sanctions Order; (2) the June Sanctions Orders; and (3) a June 15 order assigning payment due.
On July 8, 1992, Joseph M. Alioto filed a notice of appeal from: (1) the June Sanctions Orders, (2) the December Receiver Order reinstating the receiver; and (3) a June 3 order denying Joseph M. Alioto's motion for correction of an April 6 order.
On August 4, 1992, Alioto Fish Co. filed a notice of cross-appeal from the June 3 order denying its motion for reconsideration of the April Sanctions Order to the extent that it denied Alioto Fish Co.'s request for sanctions against Joseph M. Alioto.
Appeal No. A060528
The court on August 27, 1992, filed an order granting a third motion to compel and for sanctions filed by the receiver (hereinafter, August Sanctions Order). The August Sanctions Order assessed sanctions against each member of the Joseph L. Alioto Group and John I. Alioto. The court found that the Joseph L. Alioto Group and John I. Alioto had willfully violated numerous provisions of the receiver order. It enjoined them to comply with the receiver order and with the April and June Sanctions Orders. It also authorized the receiver to obtain direct access to bank and credit card information. Notice of entry was served on August 31, 1992.
The Joseph L. Alioto Group did not appeal the August Sanctions Order. Instead, in A060528 they filed an appeal of an order filed on November 19,
On November 19, 1992, the court also entered another sanctions order with respect to Joseph M. Alioto (November Sanctions Order). The court found that Joseph M. Alioto had willfully violated several provisions of the receiver order and assessed sanctions in the amount of $49,500. Joseph M. Alioto's purported appeal of this order was not timely filed and has already been dismissed.
Appeals Nos. A059738, A060131 and A060918
In the remaining three appeals, appellants challenge other orders of the trial court concerning the receivership: In No. A059738, Joseph M. Alioto appeals an October 6, 1992, order denying his motion to dissolve or modify the receivership.
The trial court specifically found that the Joseph L. Alioto Group had failed, in the third party claim proceeding, to establish that the funds in the account were client trust funds.
Dismissal of Untimely Appeals
Appellants have filed notices of appeal from numerous orders of the trial court. Several of these appeals are either untimely or are from nonappealable orders and must therefore be dismissed.
A. December Receiver Order
B. April Sanctions Order
Courts are split as to whether an order denying reconsideration (Code Civ. Proc., § 1008) is appealable. (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 1993) § 2:158, p. 2-49.) Some courts allow the appeal if the underlying order was appealable and the motion for reconsideration was based on new or different facts. (See Rabbitt v. Vincente (1987) 195 Cal.App.3d 170, 174 [240 Cal.Rptr. 524].) Other courts deem orders denying reconsideration analogous to nonappealable orders denying a new trial and, thus, treat them as nonappealable. (Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1160-1161 [250 Cal.Rptr. 435], disapproved on another point in Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1605 [275 Cal.Rptr. 887]; Hayter Trucking, Inc. v. Shell Western E&P, Inc. (1993) 18 Cal.App.4th 1, 5, fn. 1 [22 Cal.Rptr.2d 229]; see also Gill v. Hughes (1991) 227 Cal.App.3d 1299, 1310, fn. 3 [278 Cal.Rptr. 306].)
It is, however, unnecessary for us to resolve this split of authority. The June 3, 1992, order denying a motion for reconsideration of the April 3 order would not be appealable even under the line of authority that holds such an order is appealable when the motion for reconsideration is based on "new or different facts." Joseph L. Alioto's declaration filed on behalf of the Joseph
Were we to construe the July 9, 1992, notice as an appeal from the underlying April Sanctions Order, instead of from the order denying reconsideration, the appeal would nevertheless be dismissed as untimely. Notice of entry of the April Sanctions Order was mailed on April 6, 1992. Under California Rules of Court, rule 2, the time to appeal the April Sanctions Order expired 60 days later. The Joseph L. Alioto Group did not file a notice of appeal until July 9, 1992. Nor is the appeal timely under California Rules of Court, rule 3. The court clerk mailed notice of entry of the order denying reconsideration on June 4, 1992. Assuming arguendo that the motion for reconsideration was timely and extended the time for filing an appeal of the April Sanctions Order under rule 3(a) until 30 days after entry of the order denying reconsideration, the time under rule 3(a) expired on July 7, 1992, 2 days before the notice of appeal was filed.
For the same reason, Alioto Fish Co.'s August 4, 1992, notice of cross-appeal from the June 3, 1992, order denying their motion for reconsideration of the April Sanctions Order must also be dismissed. (Appeal No. A058244.) Alioto Fish Co.'s motion for reconsideration did not include a supporting declaration and no attempt was made to present "new and different" facts. Therefore, under either line of authority, the June 3, 1992, order denying Alioto Fish Co.'s motion for reconsideration is not an appealable order. (See Hayter Trucking Inc. v. Shell Western E&P, Inc., supra, 18 Cal. App.4th at p. 5, fn. 1.) If construed instead as an appeal from the underlying April Sanctions Order, Alioto Fish Co.'s notice of cross-appeal was untimely under California Rules of Court, rule 2 and rule 3(a). Notice of entry of the June 3 order denying its motion for reconsideration was mailed by the clerk on June 4, 1992. The time for filing a notice of appeal expired 30 days thereafter, before the August 4 notice of cross-appeal was filed.
C. August Sanctions Order
The Joseph L. Alioto Group also failed to file a timely notice of appeal with respect to the August Sanctions Order. Their notice of appeal, filed on January 29, 1993, states that it is from a November 30, 1992, order denying reconsideration of the August Sanctions Order. (Appeal No. A060528.) As we have already explained with respect to the April Sanctions Order, an order denying reconsideration is not an appealable order. (See Hayter Trucking Inc. v. Shell Western E&P, Inc., supra, 18 Cal. App.4th at p. 5, fn. 1.) The order is not appealable even if we were to follow the line of authority cited in Hayter, supra, that permits an appeal from an order denying reconsideration when the motion is based on new and different facts. A comparison of the Joseph L. Alioto Group's declaration in opposition to the August Sanctions Order with its declaration in support of the motion for reconsideration shows that the motion for reconsideration was not based on any new facts.
Even if this notice of appeal were construed as an appeal from the underlying August Sanctions Order, it would nevertheless be untimely under California Rules of Court, rules 2 and 3. Notice of entry of the August Sanctions Order was served on August 31, 1992. Therefore, the January 29, 1993, notice of appeal was filed well outside the time prescribed by rule 2. It is also untimely under rule 3(a) because notice of entry of the order denying reconsideration was served on November 30, 1992. The time under rule 3(a) therefore expired 30 days later, well before January 29, 1993.
Appellants occasionally characterize the sanctions orders as judgments of civil contempt pursuant to Code of Civil Procedure section 1209 et seq., and then attack the validity of the orders alleging that the procedure for civil contempt was not followed. Judgments of civil contempt are not appealable. (Code Civ. Proc., §§ 1222; 904.1, subd. (a)(1)(B).) If we were to accept appellants' characterization of these sanctions orders as judgments of civil contempt, all of the appeals from the sanctions orders would have to be dismissed. For the purpose of resolution of the immediate question before us, i.e., whether to stay or dismiss the appeals, we shall assume arguendo that these sanctions orders are appealable.
In sum, Joseph M. Alioto's appeal No. A058244 is dismissed as untimely to the extent that it seeks review of the December Receiver Order. The
In appeal No. A060528, the Joseph L. Alioto Group's appeal of the order denying reconsideration of the August Sanctions Order is also dismissed because the order denying reconsideration is not appealable. If construed as an appeal of the underlying August Sanctions Order, the appeal is untimely under California Rules of Court, rules 2 and 3.
Discretion to Stay or Dismiss Based on Appellants' Defiance of Trial Court Orders
As a result of the above mentioned dismissals, and of our prior order in appeal No. A060528 dismissing Joseph M. Alioto's untimely appeal of the November Sanctions Order, the following sanctions orders are no longer subject to review in these appeals: (1) the April Sanctions Order imposing sanctions on the Joseph L. Alioto Group and John I. Alioto; (2) the August Sanctions Order as applied to the Joseph L. Alioto Group; and (3) the November Sanctions Order as applied to Joseph M. Alioto. These orders constitute final adjudications of appellants' willful disobedience of the December Receiver Order.
Although the power to stay or dismiss an appeal is typically exercised when the litigant is formally adjudicated in contempt of court, "the same principle applies to wilful disobedience or obstructive tactics without such an adjudication." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 172, p. 184; see also Stone v. Bach, supra, 80 Cal. App.3d at p. 444.)
For example, in Stone, a judgment was entered dissolving the partnership between the plaintiff and defendant. The plaintiff moved to dismiss the defendant's appeal because the defendant had twice violated the orders of the superior court: The court had found, prior to trial, that the defendant had knowingly violated an order requiring him to deposit partnership monies into a trustee bank account. The ensuing judgment ordered the defendant either to deposit the money in the specified account or pay the plaintiff his half directly. The defendant did not comply. In addition, the defendant refused to be sworn for examination as a judgment debtor. The trial court, however, never entered a formal written judgment of contempt. The appellate court specifically rejected the defendant's contention that it could not dismiss his appeal, based on his disobedience of the trial court's orders, because the trial
In Tobin v. Casaus (1954) 128 Cal.App.2d 588 [275 P.2d 792, 49 A.L.R.2d 1419], the court exercised its power to stay an appeal in a case involving facts similar to those presented in this case. The defendant appealed a money judgment without staying execution. A receiver was thereafter appointed to take over the defendant's assets. The defendant failed to appear for a debtor's examination and a warrant was issued for his arrest. The defendant never surrendered on the warrant or appeared in court. The appellate court concluded that it was appropriate to exercise its power to stay the appeal, even though the defendant had never been formally adjudicated in contempt of court. The court observed that by responding to the motion to dismiss the appeal, the appellant demonstrated that he had actual notice of the trial court's order and had nevertheless failed to comply with it. The court further noted that, assuming arguendo that the appellant could attack the validity of the underlying bench warrant, he had failed to meet his burden of establishing that "the court acted in excess of its jurisdiction." (Id. at p. 592.)
In Tobin, in lieu of an immediate dismissal, the court stayed the appeal for 30 days, during which time the defendant could submit certified copies of the trial court's minutes "reflecting his appearance, and satisfaction of the court's [orders]...." (128 Cal. App.2d at p. 593.) If the defendant failed to do so, or "resort[ed] to evasive or dilatory tactics in either the court below or this court," the appeal was to be dismissed without further opinion or hearing. (Ibid.)
More recently, in Say & Say v. Castellano, supra, 22 Cal.App.4th 88, the court dismissed an appeal of an order dismissing the appellant's action for failure to post a vexatious litigant bond, on the ground that the appellant had "been adjudged in contempt of court on three occasions in recent months." (Id. at p. 94.) The court observed that the power of an appellate court to stay or dismiss an appeal by a party who has refused to obey the legal orders of the superior court is "well established." The court explained that, "[d]ismissal 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." (Ibid., internal quotation marks omitted.) The court noted that the appellant had made no attempt to purge the contempts and remained "`flagrantly and persistently [in defiance
These cases establish that it is within this court's discretion to stay these appeals until appellants satisfy this court that they have complied with the receiver order or, in the alternative, to dismiss them forthwith.
Validity of the June 5, 1991, Fee Order and the December Receiver Order
Appellants seek to justify their failure to comply with the trial court's orders by challenging the merits of either the June 5, 1991, Fee Order or December Receiver Order despite the fact that they never sought timely review. They also contend that these orders are "void" on various grounds and that they therefore could not be sanctioned for disregarding them.
The Joseph L. Alioto Group suggests that they could not appeal the June 5, 1991, attorney fees award because it was not final or appealable unless the court entered a separate judgment. We have already rejected a virtually identical argument in a prior appeal (Swig Investment Co. v. Lazio (Jan. 14,
Similarly, none of the appellants filed a timely appeal of the order appointing a receiver. Code of Civil Procedure section 904.1, subdivision (a)(7), specifically provides that an order appointing a receiver is appealable. Therefore it, too, is no longer subject to direct review.
The Joseph L. Alioto Group and Joseph M. Alioto assert that the court had no "jurisdiction" under the Enforcement of Judgments Act (Code Civ. Proc., § 680.010 et seq.) to appoint a receiver or otherwise compel compliance with the receiver order, because the underlying June 5, 1991, Fee Order is merely an order and therefore not an enforceable "judgment." They also contend that, even if an order can be enforced as a judgment, the order was never entered in the "judgment book" pursuant to Code of Civil Procedure section 668.
Section 680.230 of the Code of Civil Procedure specifically defines "judgment" to include an "order ... entered in a court of this state."
The Joseph L. Alioto Group also asserts that in our prior opinion in Swig Investment Co. v. Lazio, supra, A047657, we directed that any order granting attorney fees pursuant to Code of Civil Procedure section 664.6 must be made in the form of a separate judgment.
Assuming arguendo that personal service of the December Receiver Order was required, a general appearance waives any objection to defects in service.
Although John I. Alioto purported to make a special appearance in opposition to the April Sanctions Order, his written opposition also addressed the merits by contending that the receivership order is invalid to the extent that it allegedly required that more than 25 percent of the debtor's earnings be garnished. This appearance, therefore, was not limited to the assertion that the court lacked personal jurisdiction. Instead, he attempted to avoid the imposition of sanctions by attacking the terms of the receiver order on the merits. John I. Alioto therefore made a general appearance in opposition to this first motion for sanctions. (California Dental Assn. v. American Dental Assn., supra, 23 Cal.3d at p. 352.) These general appearances in the proceedings leading to the June 5, 1991, Fee Order and the receiver order, and the first of the successive motions to compel and sanctions, waived any alleged defect in service. The court therefore had personal jurisdiction over John I. Alioto for purposes of compelling compliance with these orders and imposing sanctions.
This belated contention that he lacked actual notice is not supported by the record. John I. Alioto, acting as counsel for all the appellants, including himself, filed the opposition to the request for fees that was granted in the June 5, 1991, Fee Order. The motion to reinstate the receiver was served by hand on John. I. Alioto at the business address of Alioto & Alioto. John I.
Appellants, therefore, cannot excuse their failure to comply with the December Receiver Order or the June 5, 1991, Fee Order on the ground that these were "void" orders, or that the court lacked personal jurisdiction to compel their compliance with these orders.
The successive orders compelling compliance and sanctioning the appellants establish their continuing defiance of the receiver order. At least one sanctions order has been entered against each of the appellants. Several of the orders, finding that appellants have failed to comply with the receiver order and sanctioning them, have become final because of appellants' failure to seek timely review.
We conclude that the record before us demonstrates a calculated attempt to obstruct enforcement of valid orders. Appellants have effectively nullified the orders of the trial court by forcing the court to issue a succession of orders compelling compliance and imposing sanctions with no apparent effect. If we were to proceed on the merits of these appeals while appellants remain defiant of the orders below, they will have, in effect, achieved a stay of enforcement of the receiver order without ever having filed a timely appeal of that order, or posted the bond specified in Code of Civil Procedure section 917.5. Indeed, Alioto Fish Co. asserts that appellants' continuing defiance of the receiver order has brought the receivership to a standstill.
Accordingly, those appeals that are not dismissed as untimely or as being from nonappealable orders, shall be stayed for 30 days after the date this stay order is filed. The stay shall be lifted if appellants provide this court with satisfactory proof that they have paid the sanctions imposed against them and are in compliance with all provisions of the December Receiver Order. If these conditions are not met within 30 days after the stay order is filed, the remaining appeals shall be dismissed without further hearing or argument. (See Tobin v. Casaus, supra, 128 Cal. App.2d at p. 593.)
ORDER OF STAY OR DISMISSAL
It is the order of this court that those appeals or portions thereof identified in part II as either untimely or from nonappealable orders are hereby dismissed.
It is further ordered that the remaining appeals are stayed for a period of 30 days after this order is filed. If at the expiration of this period the conditions for lifting the stay are not satisfied, the remaining appeals shall be dismissed forthwith.
Strankman, P.J., and Dossee, J., concurred.