Filed 3/4/14 ASAP Copy and Print v. Canon Business Solutions CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO



ASAP COPY AND PRINT et al.,                                          B238144

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. PC043358)
         v.

CANON BUSINESS SOLUTIONS, INC.,
et al.,

         Defendants and Respondents.




         APPEAL from orders of the Superior Court of Los Angeles County, Stephen
Pfahler, Judge. Appeal dismissed in part; remaining orders affirmed. Sanctions imposed
against appellant Nina Ringgold pursuant to Code of Civil Procedure section 907,
California Rules of Court, rule 8.276(a)(1), and In re Marriage of Flaherty (1982)
31 Cal.3d 637.
         Nina Ringgold, in pro. per., and for Plaintiffs and Appellants ASAP Copy and
Print and Ali Tazhibi.
         Frandzel Robins Bloom & Csato, Andrew K. Alper and Alan H. Fairley, for
Respondent Canon Financial Services, Inc.
       Dorsey & Whitney, Kent J. Schmidt and Lynnda A. McGlinn, for Respondent
Canon Business Solutions, Inc.
       Hemar, Rousso & Heald, and Jeannine Del Monte Kowal, for Respondent General
Electric Capital Corporation.




       This is the fourth appeal in this case filed by ASAP Copy and Print, its owner Ali
Tazhibi (collectively, ASAP), and their attorney, Nina Ringgold.1 The appeal is taken
from six postjudgment orders made on August 4, August 26, October 18, November 4,
and November 30, 2011. (Code Civ. Proc., § 904.1, subd. (a)(2).) We conclude
appellants’ notice of appeal is untimely as to the August 4, 2011 and August 26, 2011
orders, and dismiss the appeal as to those orders. We affirm the remaining orders and
impose sanctions against Ringgold pursuant to Code of Civil Procedure section 907,
California Rules of Court, rule 8.276(a)(1), and In re Marriage of Flaherty (1982) 31
Cal.3d 637.


                       FACTS AND PROCEDURAL HISTORY
       The long and tortured history of this case is well known to the parties and to this
court. We set forth only those facts necessary to resolve this appeal.
       On August 29, 2002, ASAP acquired a photocopier from Canon Business
Solutions, Inc. (CBS). The acquisition was financed through a lease from Canon
Financial Services, Inc. (CFS). The lease agreement also contained an assignment clause,
a maintenance agreement, and a provision for an award of attorney fees in the event of
litigation. Approximately three years into the lease, CFS assigned its rights under the



1     We take judicial notice of the records in ASAP Copy and Print et al. v. Canon
Business Solutions, Inc., et al., case Nos. B224295, B225702, and B232801.
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lease to respondent General Electric Capital Corporation (GE). ASAP subsequently
stopped making payments on the lease.
       A dispute arose concerning ASAP’s failure to pay lease payments and its claim
that respondents had breached the lease agreement. ASAP sued GE, CFS and others,
asserting various contract and tort causes of action. Amended complaints and cross-
complaints ensued. The action ended at the pleading stage after the trial court sustained,
without leave to amend, respondents’ demurrers to ASAP’s Fourth Amended Complaint,
struck a Fifth Amended Complaint ASAP filed without leave of court, and sustained,
without leave to amend, respondents’ demurrers to ASAP’s First Amended Cross-
Complaint. The superior court entered judgment in favor of respondents. We affirmed
the judgment on June 4, 2012. (ASAP Copy and Print et al. v. Canon Business Solutions,
Inc., et al. (June 4, 2012, B224295 & B225702) [nonpub. opn.].)


August 4, 2011 and August 26, 2011 orders.
       The trial court had on its August 4, 2011 calendar two matters relating to previous
sanction orders against Ringgold: (1) an order to show cause re: contempt directed to
Ringgold or, in the alternative, sanctions against Ringgold pursuant to Code of Civil
Procedure section 177.5; and (2) a continued judgment debtor examination of Ringgold.
Appellants had also continued to litigate the merits of a number of orders that the trial
court had made in 2010 (the 2010 orders).2 The trial court had previously denied
appellants’ motion to vacate the orders because they were the subject of pending appeals.


2      These orders are as follows: (1) March 4, 2010 protective order relating to
documents filed under seal (the protective order); (2) March 9, 2010 order striking
ASAP’s Fifth Amended Complaint and dismissing the defendants; (3) March 23, 24 and
25, 2010 orders striking ASAP’s First Amended Cross-Complaint (one order for each
cross-defendant); (4) March 25, 2010 order rejecting documents purporting to have been
filed under seal by ASAP; (5) the April 2, 2010 judgment in favor of CFS; (6) May 3, 10,
and 11, 2010 orders determining that each defendant was a prevailing party entitled to
attorney fees; (7) May 5, 2010 order ordering ASAP’s jury fees forfeited; and
(8) June 8, 2010 order awarding attorney fees to CFS and CBS.
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       On August 2, 2011, two days prior to the order to show cause/judgment debtor
hearing, appellants, in an ex parte application, renewed their requests to have the court
vacate the 2010 orders. Appellants focused in particular on a March 4, 2010 protective
order (erroneously referred to by appellants as a “ sealing order”) encompassing trade
secret documents, which the trial court had made at the request of GE. Appellants also
asked that the August 4, 2011 hearing date be “modified” (in other words, continued) to a
date after the court had heard appellants’ renewed requests concerning the protective
order. The trial court denied the ex parte application on August 2, 2011.
       When court convened on August 4, 2011, Ringgold claimed she did not realize she
was supposed to produce documents at the hearing. The trial court responded that on
April 27, 2011, it had ordered Ringgold to produce documents for a judgment debtor
exam, and had caused the order to be personally served on Ringgold in open court. In
fact, the court read verbatim from its April 27, 2011 order.3 At the conclusion of the
August 4 hearing, the trial court ordered Ringgold to pay monetary sanctions of $350 to
counsel for CBS, for failing to comply with the order to produce documents. The court
continued three other matters to August 25, 2011: sanctions against Ringgold for failure
to produce documents pursuant to prior court orders; the order to show cause re:
contempt directed to Ringgold; and Ringgold’s judgment debtor exam.
       On August 26, 2011, the trial court imposed sanctions against Ringgold in the
amount of $500, payable to the superior court, “on the grounds that Ms. [Ringgold] has
violated the Court’s 4/27/11 order by failing to produce documents for today’s judgment
debtor exam.” (Code Civ. Proc., § 177.5.) The court continued the judgment debtor
exam and two orders to show cause re: contempt to November 30, 2011.
       On December 19, 2011, appellants filed a notice of appeal from the August 4,
2011 and August 26, 2011 orders as postjudgment orders under Code of Civil Procedure



3     We subsequently reversed the April 27, 2011 order in an unpublished opinion
(B232801) filed May 1, 2013. The reversal has no bearing on this appeal.

                                             4
section 904.1, subdivision (a)(2). Appellants contend these “sanction orders” were an
abuse of discretion. We conclude the notice of appeal is untimely as to those orders.4
       Both orders were entered in the court’s minutes. (See Eisenberg, Cal. Practice
Guide: Civil Appeals and Writs (The Rutter Group 2013) ¶ 3:47, p. 3–23.) As to the
August 4, 2011 order, the trial court directed respondents to give notice of entry of the
order. The superior court docket, of which we take judicial notice (Evid. Code, § 452,
subd. (d)), reflects that respondents mailed a notice of ruling to all parties on
August 12, 2011. Pursuant to California Rules of Court, rule 8.104(a)(1)(B), appellants
were required to file a notice of appeal of the order within 60 days of that date, with an
additional five days because the notice was served by mail. (Code Civ. Proc., § 1013.)
The notice of appeal, filed December 19, 2011, was therefore untimely.
       The appeal is also untimely as to the August 26, 2011 order. The superior court
directed its clerk to give notice of entry of the order, and the clerk gave notice to all
parties by mail on September 15, 2011. Appellants were required to file their notice of
appeal of the order within 60 days of that date, with an additional five days because
notice of entry of the order was served by mail. The notice of appeal, filed December 19,
2011, was likewise untimely.
       The time limits for filing a notice of appeal are jurisdictional; “once the deadline
expires, the appellate court has no power to entertain the appeal.” (Van Beurden Ins.
Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51,
56; see also Janis v. California State Lottery Com. (1998) 68 Cal.App.4th 824, 828–829.)
This court therefore lacks jurisdiction to entertain appellants’ appeal of the
August 4, 2011 and August 26, 2011 orders.




4       We will assume, for the purpose of argument only, that these orders meet the
criteria for appealability of postjudgment orders.

                                               5
October 18, November 4, and November 30, 2011 orders.
         On October 18, 2011, the trial court considered the separate motions of ASAP and
Ringgold, filed August 25, 2011, to vacate the 2010 orders and unseal documents
encompassed by the protective order. The motions were entitled “Second Submission
Under Protest—Identical to June 21, 2010 Filing.” The trial court denied the motions,
again finding that the 2010 orders were on appeal and therefore “subject to the automatic
stay provision of Code of Civil Procedure section 916.” The court also found that the
motions were “an improper attempt to seek reconsideration of this Court’s prior orders
denying the same motion to vacate.”
         On November 4, 2011, the court issued a nunc pro tunc order correcting a clerical
error.
         On November 30, 2011, the court issued an order continuing hearings on several
matters and requesting additional briefing on various issues.5
         Appellants contend the trial court abused its discretion when it concluded it could
not consider the motions to vacate because the protective order was on appeal.6 We need
not address appellants’ arguments as to why the automatic stay does not apply to the
protective order, because we affirmed the order on June 4, 2012. Thus, any issues
relating to the protective order, or the other orders encompassed by that appeal, are moot.


Sanctions.
         On the motion of a party or on its own motion, this court may impose sanctions on
a party for taking a “frivolous” appeal (that is, an appeal that indisputably lacks merit) or


5      Although these latter two orders were included in the notice of appeal, we view
them as ministerial and not substantive. Appellants have not raised any issues concerning
these orders in their opening brief.
6       Code of Civil Procedure section 916, subdivision (a), provides in pertinent part
that “the perfecting of an appeal stays proceedings in the trial court upon the judgment or
order appealed from or upon the matters embraced therein or affected thereby . . . .”

                                               6
appealing solely to cause delay. (Code Civ. Proc., § 907; Cal. Rules of Court,
rule 8.276(a)(1); In re Marriage of Flaherty, supra, 31 Cal.3d 637.) We conclude this
appeal indisputably lacks merit, and impose sanctions against Ringgold.
       The issue of whether an appeal “indisputably has no merit” is resolved under an
objective standard. ‘“The objective standard looks at the merits of the appeal from a
reasonable person’s perspective. ‘The problem involved in determining whether the
appeal is or is not frivolous is not whether [the attorney] acted in the honest belief he had
grounds for appeal, but whether any reasonable person would agree that the point is
totally and completely devoid of merit, and, therefore frivolous.’” (In re Marriage of
Flaherty, supra, 31 Cal.3d at p. 649, citation omitted.)
       Ringgold, on behalf of herself and ASAP, filed a notice of appeal from six orders
that purported to be postjudgment orders pursuant to Code of Civil Procedure section
904.1, subdivision (a)(2). The notice of appeal was untimely as to the August 4 and
August 26, 2011 orders. Two others (the November 4 and November 30, 2011 orders)
were simply ministerial, not substantive, and did not meet the requirements for
appealable postjudgment orders. (Lakin v. Watkins Associated Industries (1993)
6 Cal.4th 644, 651–652.)
       The appeal of the October 18, 2011 order is the most egregious. The substance of
the appeal is a challenge to the March 4, 2010 protective order, which, as the trial court
correctly noted, was automatically stayed because the order was on appeal. On June 4,
2012, we affirmed the judgment in favor of respondents and all the orders that were on
appeal at that time, including the March 4, 2010 protective order.7 Yet, more than five
months later, Ringgold filed an opening brief in which she challenged the validity of the
protective order, including an argument that the order violated appellants’ right to due
process because it prevented ASAP from pursuing a case that had already been dismissed




7      Ringgold has filed yet another appeal challenging the protective order. That
appeal (B249588) is pending in this division.
                                            7
at the pleading stage, and prevented Ringgold from challenging the numerous sanction
orders against her. No reasonable attorney would conclude that such an appeal had merit.


                                      DISPOSITION
       The appeal is dismissed as to the orders of August 4 and 26, 2011. The remaining
orders are affirmed.
       Ringgold is directed to pay sanctions in the amount of $8,000, as follows: $5,000
payable to the Clerk of this court, $2,000 payable to counsel for respondent Canon
Financial Services, Inc., and $1,000 payable to counsel for respondent Canon Business
Solutions, Inc. The sanctions are to be paid within 30 days of the date this court issues its
remittitur. Failure to pay the sanctions will result in this court issuing an order to show
cause re: contempt.
       Upon issuance of the remittitur, the Clerk of this court is directed to transmit a
copy of this opinion to the State Bar of California for consideration of discipline against
Ringgold. Ringgold is likewise directed to transmit a copy of the opinion to the State
Bar. (Bus. & Prof. Code, §§ 6068, subd. (o)(3), 6086.7, subd. (a)(c).)
       Appellants’ motion to unseal records lodged conditionally under seal is denied.

       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                            _____________________, P. J.
                                             BOREN
We concur:


__________________________, J.              ________________________, J.
ASHMANN-GERST                                CHAVEZ




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