Zimmerman v. Riggs

Decision Date06 July 2011
Docket NumberB225028
CourtCalifornia Court of Appeals Court of Appeals
PartiesJON ZIMMERMAN et al., Plaintiffs and Respondents, v. DAVID G. RIGGS, Defendant; TONY TISCARENO, Movant and Appellant.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC377905)

APPEAL from orders of the Los Angeles Superior Court. Michael C. Solner, Judge. Affirmed.

Tony Tiscareno, in pro. per., for Movant and Appellant.

No appearance for Defendant.

Eric Norwitz for Plaintiffs and Respondents.

Appellant Tony Tiscareno, acting in propria persona, appeals from orders imposing sanctions of $3,200 and $4,500 against him under Code of Civil Procedure sections 128.7 and 1008. We affirm.


The complaint in intervention

In December 2008, Tiscareno filed a complaint in intervention against certain plaintiffs and nonparties in ongoing litigation in the Los Angeles Superior Court, entitled Jon Zimmerman et al. v. David G. Riggs et al., case No. BC377905. (Certain of the parties named in Tiscareno's suit are the respondents in this appeal, whom we refer to collectively as the "Zimmerman parties.") On September 30, 2009, Tiscareno filed a first amended complaint in intervention in that action.1

Order striking the pleading

On September 29, 2009, the Zimmerman parties moved to strike Tiscareno's complaint in intervention, and on October 1, 2009 they moved to strike his first amended complaint in intervention, on the ground that Tiscareno had failed to obtain court approval for his intervention as Code of Civil Procedure section 387, subdivision (a), requires.2 On November 19, 2009, the court heard and orally granted the motions to strike. In response to Tiscareno's request, the court told him that "I will grant you leave" to move for permission to intervene.

Order denying leave to intervene

On November 20, 2009 Tiscareno filed a motion for leave to file a complaint in intervention, which the Zimmerman parties opposed and the court denied on January 5, 2010. "The motion for leave to file a complaint in intervention is denied with prejudice. There is a remedy available, should [Tiscareno] choose to do it. The remedy may well bein federal court."3 Notice of the court's denial of leave to intervene was filed on January 8, 2010.

Order granting sanctions under section 128.7

On January 12, 2010, the Zimmerman parties filed a motion for sanctions against Tiscareno under section 128.7, based on his filing of the first amended complaint in intervention without having obtained the court's permission pursuant to section 387, subdivision (a), and because the pleading lacked evidentiary support and asserted claims that are not warranted by existing law, or was brought for an improper purpose. In support of the motion the Zimmerman parties offered evidence that they had served the proposed motion for sanctions on Tiscareno by mail on October 19, 2009, and that Tiscareno had not withdrawn or dismissed the improper pleading by November 16, the safe harbor period specified in subdivision (c)(1) of section 128.7.

The court heard the motion for sanctions on February 19, 2010. It orally found that the imposition of sanctions was "appropriate" because Tiscareno's failure to dismiss the first amended complaint in intervention had required the Zimmerman parties to move to strike the pleading, and that Tiscareno had "ample opportunity" under the safe harbor provision of section 128.7, subdivision (c)(1), "to do what was not done here."4 For that, the court imposed sanctions of $3,200, payable to the Zimmerman parties within 30 days of the order.Order denying reconsideration and imposing additional sanctions

On March 10, 2010, Tiscareno moved for reconsideration of the February 19, 2010 order awarding sanctions against him.5 The Zimmerman parties' opposition argued that Tiscareno's motion failed to state the legal grounds for the motion, that the motion was not based on any new or different law or facts as required by section 1008, and that the reconsideration motion was clearly intended to delay the sanction obligation and to cause the Zimmerman parties additional attorney fees. Their opposition argued that "additional attorney fees should be imposed against Tiscareno" for having brought the reconsideration motion without conforming with the requirements of section 1008, and its title—"Opposition . . . To Motion By Tiscareno For Reconsideration of 02/19/10 Sanction Order; Request For Monetary Sanction Against Tiscareno; Memorandum Of Points & Authorities; Declaration of Norwitz," gave specific notice of that request.

At the June 7, 2010 reconsideration hearing, Tiscareno told the court that he had assumed that the court's order allowing him leave to seek to intervene "negated everything up to then." He argued that he had a right to intervene under the terms of section 382, and that he had corrected his mistake (in failing to seek leave to file the pleading) promptly upon being advised of it. The trial court orally denied the motion for reconsideration, sustaining the Zimmerman parties' objections to Tiscareno's declaration, and holding that the Zimmerman parties were entitled to additional sanctions of $4,500 for their attorney's opposition to the reconsideration motion.

On June 8, 2010 the court signed and filed its order imposing sanctions against Tiscareno of $3,200, payable within 30 days, for filing his first amended complaint in intervention without leave of court and for "the improper purpose of harassing the moving parties and needlessly increasing their litigation expenses." On the same date the court signed and filed its order denying reconsideration and granting additional monetary sanctions against Tiscareno of $4,500, payable within 30 days, finding that the motion for reconsideration was filed for the same improper purpose.Notice of appeal

On June 8, 2010—the same date as entry of the orders imposing sanctions— Tiscareno filed a notice of appeal, using Judicial Council Form APP-002. The form calls for the appellant to insert the date of the judgment or order from which the appeal is taken, listing nine possible appealable orders, any one of which the appellant may designate by check box, with a tenth check box providing an option to designate an "[o]ther" appealable order.

In filling out the notice of appeal form, Tiscareno left blank the space that calls for the date of the order from which he intended to appeal. Purporting to identify the order from which he intended to appeal, he checked the box indicating that his appeal was taken from "[j]udgment after an order granting a summary judgment motion." However there was no order granting a summary judgment motion.

Issues raised by Tiscareno's appeal

Tiscareno's opening brief contains no statement of the points upon which he appeals, notwithstanding rule 8.204(a)(1)(B) of the California Rules of Court, which requires that each brief must "[s]tate each point under a separate heading or subheading summarizing the point . . . ." However his opening brief identifies as the basis for his appeal section 904.1, subdivision (b), which makes orders for sanctions of $5,000 or less appealable and his opening brief refers repeatedly to the sanctions orders as the subject of his appeal.6

Motion to dismiss the appeal

The Zimmerman parties contend that the notice of appeal fails to identify any appealable order from which the appeal is taken. They therefore urge us to find that thiscourt lacks jurisdiction to review any of the orders in this case, and to dismiss the appeal.7

1. The motion to dismiss the appeal is denied.

A valid appeal is initiated by a notice of appeal filed in the superior court. (Cal. Rules of Court, rule 8.100(a)(1).) Tiscareno filed such a notice; but that is not the only requirement for validity of a notice of appeal. The rules also specify that "[t]he notice is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.100(a)(1)& (a)(2).)

This rule requires "that the notice affirmatively state, in some form, a present intention to appeal from a designated judgment or order." (Estate of Roberson (1952) 114 Cal.App.2d 267, 269 [construing former rule 1(a)].) It is consistent with the oft-stated proposition that notices of appeal must be liberally construed so as to protect the right of appeal "'if it is reasonably clear what appellant was trying to appeal from.'" (Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298, 1307; Luz v. Lopes (1960) 55 Cal.2d 54, 59 [notice of appeal designating appeal from order of particular date and from "all orders and rulings . . . which are adverse to them" validly includes appeal from underlying judgment]; Yolo County Dept. of Child Support Services v. Lowery (2009) 176 Cal.App.4th 1243, 1246; D'Avola v. Anderson (1996) 47 Cal.App.4th 358, 361-362.)

But liberal construction cannot supply what is not there. Unless the notice of appeal can be construed to identify an appealable judgment or order that is being challenged, the court of appeal lacks jurisdiction to review unspecified orders. (Estate of Roberson, supra, 114 Cal.App.2d at p. 270 [rule's clear meaning is that notice of appeal must state party's intention to appeal "from some specified thing"]; People v. Delaney(1955) 132 Cal.App.2d 838, 839 [appeal dismissed where notice of appeal failed to "specify any judgment or particular part thereof" from which appeal is taken].) The questions here therefore are whether Tiscareno's notice of appeal identified any appealable order sufficient to confer jurisdiction on this court, and if so, which order or orders are within the scope of that...

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