Filed 2/28/13 Williams v. Safire CA1/5


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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



KEVIN B. WILLIAMS,
         Plaintiff and Appellant,                                        A133759
                   v.
ERIC M. SAFIRE et al.,                                                   (San Francisco City and County
                                                                         Super. Ct. No. CGC-05-440797)
         Defendants and Respondents.

         Plaintiff Kevin B. Williams (appellant) appeals from an order denying his motion
for sanctions against defendants Eric M. Safire and John Houston Scott (respondents)
(Code Civ. Proc., § 128.7),1 in connection with their motion to prohibit him from filing
new litigation in propria persona without first obtaining leave of court. We dismiss the
appeal, as we conclude the order denying appellant’s motion for sanctions is not
immediately appealable.
                                                 BACKGROUND
         This appeal arises from an action for professional negligence appellant filed
against respondents in April 2005. In June 2005, the case was ordered to arbitration.
There is no final judgment in the case.
         On May 25, 2011, respondents filed a motion in the superior court, seeking to
prohibit appellant from filing new litigation in propria persona without obtaining leave of

1   All undesignated section references are to the Code of Civil Procedure.


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court, contending he is a vexatious litigant. (§§ 391, subd. (b), 391.7.) Appellant did not
file an opposition to the motion; instead, on June 9, he filed a motion in propria persona
seeking a separate trial on the special defense of res judicata. The same day, he sent
respondents’ counsel a letter stating he would file a motion for section 128.7 sanctions
against respondents and/or move to strike their vexatious litigant motion unless, within
21 days of service, respondents withdrew the motion.
       On June 15, 2011, acting in propria persona, appellant filed the subject motion for
sanctions, contending: (1) the vexatious litigant motion was not warranted by existing
law, lacked evidentiary support, and was filed to delay the proceedings; (2) respondents
attached exhibits to the motion that contained confidential information regarding
appellant and his family in order to harass him; and (3) respondents were forum-shopping
and failed to file their motion with the judge or department assigned to the case, as
required by the California Rules of Court. The superior court denied the vexatious
litigant motion at a June 22 hearing. At a July 28 hearing, the superior court denied
appellant’s motion for sanctions.
       Appellant filed a timely notice of appeal from the order denying his motion for
sanctions. Thereafter, respondents filed a motion to dismiss the appeal, contending the
order is not appealable. We deferred disposition on respondents’ motion to dismiss until
consideration of the merits of the appeal and address it now.
                                      DISCUSSION
       “The existence of an appealable [order or] judgment is a jurisdictional prerequisite
to an appeal.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) “[If] the judgment or
order is not appealable, the appeal must be dismissed. [Citation.]” (Canandaigua Wine
Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302.) “There are three
categories of appealable judgments or orders: (1) final judgments as determined by case
law, (2) orders and interlocutory judgments made expressly appealable by statute, and
(3) certain judgments and orders that, although they do not dispose of all issues in the
case are considered ‘final’ for appeal purposes and are exceptions to the one-final-



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judgment rule. [Citation]” (Conservatorship of Rich (1996) 46 Cal.App.4th 1233,
1235.)2
       An appeal may be taken from a final judgment or an order made after judgment,
but not from an interlocutory order. (§ 904.1, subd. (a)(1), (2).) Because there is no
judgment in this case, the order denying appellant’s motion for sanctions is not
appealable under section 904.1, subdivision (a)(1) or (2). (Muller v. Fresno Community
Hospital & Medical Center (2009) 172 Cal.App.4th 887, 898.)
       There also is no statute that makes this order appealable. Appellant indicated in
his notice of appeal that this order is appealable under section 904.1, subdivision (a)(3)-
(13), which identifies specific interlocutory orders and judgments that are appealable.
Appellant is mistaken. Although section 904.1, subdivision (a)(11) and (12) permit a
party to appeal from an interlocutory judgment or order directing it to pay monetary
sanctions in excess of $5,000, these provisions do not apply here, where sanctions were
denied. (See Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055 [“[Former
section] 904.1, subdivision (k) permits a party to appeal a judgment or an order directing
it to pay monetary sanctions in excess of $750. [Citation.] However, denial of a motion
for sanctions is not a judgment and is therefore not appealable.”].) Appellant’s reliance
on section 1294, subdivision (d) also is misplaced, as this subdivision permits a party to
appeal from a judgment entered pursuant to title 9 of the Code of Civil Procedure, which
governs arbitration proceedings. No judgment has been entered in the arbitration
proceeding.
       Appellant does not identify any exception to the one final judgment rule that
applies to the order denying his motion for sanctions. He relies on Shelton v. Rancho


2    Section 904.1 codifies the one final judgment rule. (In re Marriage of Griffin (1993)
15 Cal.App.4th 685, 687.) “The theory is that piecemeal disposition and multiple appeals
in a single action would be oppressive and costly and that a review of intermediate
rulings should await the final disposition of the case.” (Ibid.) A judgment is final when
it terminates the litigation between the parties on the merits of the case and leaves
nothing to be done except for its enforcement by execution. (Sullivan v. Delta Air Lines,
Inc. (1997) 15 Cal.4th 288, 304.)


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Mortgage & Investment Corp. (2002) 94 Cal.App.4th 1337, which found an order
denying a motion for sanctions appealable. Shelton is distinguishable, however, as it
addresses a postjudgment order that is appealable under section 904.1, subdivision (a)(2).
          Appellant has not demonstrated that the order denying sanctions is an appealable
order.3
                                       DISPOSITION
          Respondents’ motion to dismiss is granted. The appeal is dismissed, without
prejudice to appellant’s ability to seek review of the order denying his motion for
sanctions upon a timely appeal from the judgment entered in the superior court
proceeding. Respondents shall recover their costs on appeal.




                                                   SIMONS, J.



We concur.




JONES, P.J.




BRUINIERS, J.



3   Appellant contends the order denying sanctions is immediately appealable “because
section 128.7 does not require that a motion for sanctions be filed before the court renders
a dispositive ruling on the pleading or motion as to which sanctions are sought.”
Appellant misses the point. The issue is not the timing of the motion for sanctions, but
rather, the timing of the appeal, i.e., whether the order at issue is immediately appealable
or must be reviewed on appeal from the final judgment.


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