In re Marr. of Herron

Filed 6/13/08 In re Marr. of Herron CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Nancy A. Pollard, Judge. Affirmed.

Susan Herron, in pro. per.; and Frances Diaz for Appellant.

Law Offices of Steven E. Briggs and Steven E. Briggs for Respondent.

Appellant Susan Herron (Susan)[1] appeals from a postjudgment order directing her to pay fees and costs incurred by appointed counsel for her minor daughter. She contends the court lacked jurisdiction to enter the order because (1) the trial judge was disqualified for bias, and (2) she lacked notice of the hearing on the fee request. Susan failed to preserve these claims below. We affirm.

FACTS

The minors appointed counsel filed an order to show cause in March 2006, seeking to recover attorney fees and costs from Susan and her ex-husband, Jack Lee Herron (Jack). According to minors counsels fee request, the court had appointed her to represent the minor daughter in June 2004. She was initially paid $1,500 each by Susan and Jack, with the court reserving jurisdiction to award and apportion additional fees. The court later ordered Jack to pay $30,500 to minors counsel, reserving jurisdiction over final allocation of the payment. Jack paid this amount, plus an additional $2,500. Since then, minors counsel had dedicated more than 88 hours of work representing the minor, at a billing rate of $375 per hour. Minors counsel anticipated expending substantial additional time on this case.

Minors counsel also sought reimbursement for costs incurred defending against a federal lawsuit filed by Susan. [2] In January 2006, Susan had sued the trial judge, minors counsel, and the minors therapist in federal court, apparently alleging the three had somehow violated her federal rights. Susan voluntarily dismissed the action without prejudice three days before the court was to hear minors counsels motion to dismiss. Minors counsel had incurred $12,650 in defense costs, and anticipated incurring total defense costs exceeding $15,000. She also requested $5,000 in anticipated attorney fees and costs for representing minor.

The court set a hearing on the fee request for April 2006, but continued it to May 2006 at the request of Susans then-counsel. The minute order granting the continuance states, A COPY OF THIS MINUTE ORDER IS BEING MAILED TO THE OFFICE OF EACH COUNSEL.

Susans counsel appeared at the hearing, thanking the court for granting the continuance. After minors counsel argued her fee request, Susans counsel stated, I would respectfully and I dare say I want to emphasize the word respectfully for the record ask the court not to make any ruling on a request from [minors counsel] to award her money on the very case that you were involved in. She continued, And I think it very inappropriate for [minors counsel] to be asking this court when she knows that you were co-defendant in that case to award her fees. Susans counsel repeatedly asked the court to determine various custody and visitation issues first.

The court ordered Susan to pay approximately $48,000 to minors counsel for her attorney fees incurred representing minor and her costs incurred in defending against the federal action, payable at the rate of $1,500 per month. It directed Jack and Susan to bear equally the minors counsels anticipated fees and costs, payable at the rate of $500 per month.

DISCUSSION

Susan Waived the Trial Judges Purported Disqualification

Susan contends the court lacked jurisdiction to decide the fee request because the trial judge was disqualified for bias. An order by a disqualified judge is voidable if properly raised by an interested party. (In re Steven O. (1991) 229 Cal.App.3d 46, 54 (Steven O).) A judge shall be disqualified if any one or more of the following is true: [] . . . [] For any reason: [] . . . [] A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. (Code Civ. Proc., 170.1, subd. (a)(6)(A)(iii).)[3] Susan may have a point. The trial judge and minors counsel were codefendants in the same action for which minors counsel sought to recover her defense costs. And the fee request asked the trial judge to decide whether to assess those defense costs against the plaintiff who had sued her. One might reasonably doubt the trial judges ability to decide this impartially.

But Susan failed to preserve her disqualification claim. [O]ne manner in which a party may waive a judges disqualification is by failing to raise the issue promptly. (Steven O., supra, 229 Cal.App.3d at p. 54.) To raise her claim, Susan had to file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge. ( 170.3, subd. (c)(1).) Failure to comply with this requirement constitutes an implied waiver of the disqualification. (Steven O., supra, 229 Cal.App.3d at p. 54.) Susan filed no such statement objecting to the fee request hearing, waiving her claim.[4] (Ibid.; see also People v. Bryant (1987) 190 Cal.App.3d 1569, 1573 [oral disqualification request is insufficient].)

Even if Susan had properly raised the disqualification issue below, her only avenue for review would have been a writ of mandate, not an appeal. The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal . . . . ( 170.3, subd. (d).) Susan did not petition for any such writ, and we will not issue one now. (Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1349 [declining to treat purported appeal from order denying peremptory challenge to discovery referee as a writ petition].)

Susan Waived Any Inadequate Notice of the Hearing

Susan also contends the court lacked jurisdiction because she had no notice it would decide the fee request at the hearing. But Susans counsel did not raise any such complaint at the hearing, request a continuance, or otherwise object to a lack of notice.[5] She thus waived her claim. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [party waives inadequate notice by appearing at a hearing and failing to request continuance]; Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 [a party who appears and contests a motion in the court below cannot object on appeal . . . that he had no notice of the motion or that the notice was insufficient or defective].)

At most, the record suggests Susans counsel objected to the court reaching the fee request before it decided custody and visitation issues. She stated, I think the most urgent [matter] is to find out when Susan is going to be able to see her daughter again. She also stated, I believe the court ought to defer [minors counsels fee request]. I thought we were going to talk about the visitation of the child with the mom. These requests for the court to decide issues in a different order did not preserve Susans inadequate notice claim for appeal.

Finally, Jacks motion for sanctions on appeal is denied. He contends Susan took her appeal solely for delay. ( 907; Cal. Rules of Court, rule 8.276(a)(1).) He claims her improper motive is shown by the lack of any discernable legal argument in her briefs. We had no difficulty discerning Susans claims, though we ultimately reject them. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)

DISPOSITION

The order is affirmed. Jack shall recover his costs in appeal.

IKOLA, J.

WE CONCUR:

OLEARY, ACTING P. J.

ARONSON, J.

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[1] For ease of reference we refer to the parties by their first names. No disrespect is intended.

[2] The Family Code allows the court to modify an award of attorney fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto. (Fam. Code, 2030, subd. (c).)

[3] All further statutory references are to the Code of Civil Procedure.

[4] Susan claims to have filed statements of disqualification in October 2005, September 2006, and May 2007. None of those statements are in the appellate record. In any event, the time in which Susan could have challenged the October 2005 denial of her statement of disqualification had long expired as of the time of the May 2006 hearing. ( 170.3, subd. (d).) The September 2006, and May 2007 statements of disqualification were untimely as to the May 2006 hearing.

[5] Susan contends her counsel was unprepared to discuss the minors fee request because she did not receive a copy of the minute order granting her own request to continue the hearing. No evidence supports this claim. To the contrary, the minute order itself states it was mailed to Susans counsel.