H* v. H*

Filed 12/16/08 H* v. H* CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant H* (H*) has attempted to appeal from a bevy of orders concerning resolution of disputes about liens for attorney fees that encumber her underlying settlement package. We have already partially dismissed her appeal based on two untimely notices of appeal and the denial of a separate motion to augment to include numerous amended orders of appeal. With this decision we dismiss the appeal in its entirety.

I. PROCEDURAL BACKGROUND

This litigation began as a personal injury and palimony lawsuit prosecuted by H* against her former husband, Bernard P. H*. Respondents Sommers & Schwartz LLP and Paul J. Steiner represented H* in this matter pursuant to a contingency fee agreement. The matter settled for $150,000. Thereafter H* accused respondents of betrayal, dismissed them and proceeded pro se. Attorney Donald Bloom, who represented H* in her dissolution action, began serving as her [a]ssociate attorney.

In May 2006, the trial court ordered that the $150,000 be paid into a court account, with all claims and liens satisfied out of the proceeds and no distribution made to H* without a court order. These included liens in favor of respondents and other lawyers, as well as medical liens.

On June 30, 2006, H* and respondents entered into a settlement agreement pursuant to which the fee and cost dispute would be submitted to binding arbitration with the State Bar of California (State Bar) by July 6, 2006. That same day, H*s motion to release undisputed settlement funds came on for hearing. In open court counsel indicated that a settlement agreement had been reached. The court ordered the release of $31,066.43, the amount determined to be undisputed.

In the face of H*s refusal to abide by the agreement to submit her claims to binding arbitration, respondents moved to enforce it. H* responded with several motions to extinguish respondents liens.

On March 6, 2007, the trial court granted respondents motion to enforce the settlement agreement, ruling that prior to May 7, 2007, H* was required to resolve all disputes between the parties which were subject to respondents liens, and that resolution of the matter must be through settlement, or commencement of binding arbitration before the State Bar. The court also denied H*s motion to extinguish respondents liens.

Thereafter H* attempted to challenge the March 6, 2007 ruling with a motion to vacate and for new trial. As well, H* sought sanctions against respondents under Code of Civil Procedure^[1]section 128.7. On May 7, 2007, the trial court denied the motion for new trial and to vacate the judgment, noting that it was procedurally improper. Further, the court denied the request for sanctions and extended the deadline for H* to commence negotiation with respondents to resolve their liens through settlement or State Bar arbitration.^[2]

H* filed a notice of appeal on May 10, 2007, challenging the May 7, 2007 order. On May 21, 2007, she filed an amended notice of appeal challenging the March 6, 2007 order as well.

In the meantime, on May 9, 2007, H* moved to disqualify Judge Wiss because she had once worked on an unrelated case with an opposing counsel in a predecessor case between H* and her husband. Judge Wiss submitted a declaration explaining this and indicated she knew of no grounds for her judicial disqualification. The Attorney Generals Office responded that H* completely failed to meet her burden of proof in connection with the attempted disqualification of Judge Wiss and urged summary denial. Nonetheless, on May 29, 2007, Judge Wiss recused herself from further proceedings in the interests of justice.

H* filed her third notice of appeal on May 22, 2008, listing each order Judge Wiss had issued prior to her recusal. This was followed on June 2, 2008, with a motion to augment with amended notices of appeal to include all of Judge Wisss orders in the matter and to augment the record accordingly.

Respondents moved for partial dismissal requesting that the appeal from all orders except the May 7, 2007 order be dismissed. This court denied in full H*s June 2, 2008 motion to augment to include all of Judge Wisss orders. As well, this court granted respondents motion for partial dismissal, ruling that the May 21, 2007 notice of appeal was untimely in contesting the March 6, 2007 order, and the May 22, 2008 amended notice of appeal contesting orders from 2006 and 2007 was untimely. At the same time we requested supplemental briefing to address whether the May 7, 2007 order was an appealable order.

II. DISCUSSION

Appellant continues to urge that she should be able to pursue her appeal of the March 6, 2007 order. We have ruled on the issue, the ruling was correct and that is the end of the matter.

We further conclude that no appeal lies from the May 7, 2007 order.

First, the aspect of the order denying H*s motion for new trial and to vacate the judgment is not appealable. An order denying a motion for new trial is not appealable; it is only reviewable from the underlying judgment. (Walker v. Los AngelesCounty Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.) Similarly, an order denying a motion to vacate the judgment is not appealable because any assertion of error can be reviewed from the judgment itself. (Scognamillo v.Herrick (2003) 106 Cal.App.4th 1139, 1146.)

Nor is the aspect of the order denying H*s motion for sanctions under section 128.7 appealable. A postjudgment order denying a motion for statutory sanctions is appealable pursuant to section 904.1, subdivision (a)(2) because it is a final determination of the rights and liabilities of the parties arising from the judgment, and is not preliminary to some future judgment from which the order might be appealed. (Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1123.) However, this was not a postjudgment denial. The settlement or arbitration has yet to occur. The final determination in this situation will be the dismissal of the case upon a settlement or a judgment confirming, correcting or vacating an arbitration award. In any event, H* has presented no argument whatsoever on this point. A reviewing court has inherent power to dismiss an appeal which it cannot or should not hear and decide. (In re Sade C. (1996) 13 Cal.4th 952, 994.) We presume that an appealed-from order is correct. Therefore, the appellant must challenge the order by making claims of reversible error or other defect, and set forth argument and authority on each point made. (Ibid.) Where he or she does not, we may deem the appellant to have abandoned the appeal and order dismissal. (Ibid.) H* has raised no issue of error or defect with respect to the order denying sanctions, and thus we deem her to have abandoned this aspect of her appeal.

Finally, the portion of the order extending the deadline for H* to commence negotiations is not appealable. ( 904, 904.1.)

III. DISPOSITION

The appeal is dismissed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Rivera, J.

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^[1]All statutory references are to the Code of Civil Procedure.

^[2]The court also entered orders with respect to two other attorneys who are not parties to this appeal.