Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. FL086124
ELIA, J.This is Herman Aster's fourth appeal from family court orders dissolving his marriage to Zdenka Aster and dividing the parties' property. In the first appeal (H022230), Herman attempted to challenge the December 2000 termination of marital status as well as the subsequent division of property. Finding no properly presented cognizable issues, we affirmed the order dividing the property. In the second appeal (H027461), he unsuccessfully contested an April 20, 2004 order requiring him to pay Zdenka $576,752.79, the amount that had remained unpaid (plus interest) since the property division. In the April 2004 order the family court added that if Herman did not pay the sum he owed within 30 days, then the parties' San Jose house "shall be sold" in order to satisfy the judgment. In August 2004, the court ordered Herman to cooperate in the division of stock certificates and securities accounts. Again we affirmed (H027866), finding "no legally or factually supported ground" for concluding that Herman was the victim of attempted extortion by Zdenka, "conspiracy" by the attorneys involved in the case, or "persecution" of him by the family court.
Herman still did not pay what he owed Zdenka, which by late 2007 had increased to more than $700,000. On November 14, 2007, Zdenka requested an ex parte order for the sale of the house as set forth in the April 2004 order. An ex parte order was necessary, her attorney explained, because the sale had already been ordered in April 2004 and Herman had exhausted all of his appeals. If Herman were to be given notice of the request, he would "file an appeal of any new order and thus frustrate collection efforts." Zdenka's application characterized the requested relief as only an amendment of the April 2004 order, but with language conforming to the specific wording required by the sheriff.
Following this court's affirmance of that order in H027461, Herman petitioned for review in the United States Supreme Court, which denied review and then denied rehearing. The High Court also denied review following our affirmance of the 2001 judgment (H022230) and the August 2004 order (H027866).
The court granted Zdenka's request and filed the amended order that day, November 14, 2007. The court specifically "upheld" the April 20, 2004 order and issued a Writ of Sale Of Real Property for the parties' house. The court ordered the county sheriff to sell the property immediately, subject only to Herman's homestead exemption of $150,000.
Discussion
Herman's brief in this appeal consists of two and one-half-pages listing factual allegations without proper references to the record. The events to which he refers relate to previous orders, including the division of assets; that order in particular, he asserts, was violated by Zdenka's "fraud" and her "conspiracy" with a New York bank custodian, the subject of a separate superior court action. After accusing Zdenka of extortion and calling her a "ruthless predator" and a "Communist parasite," Herman finally mentions the order from which this appeal is taken. No argument germane to that order follows, however. He merely asserts that the parties have a premarital contract which entitles him to damages. He even recalls his 2002 appeal by stating that "in sense of Canonic Law . . . there are clearly defined obligations for life." Without legal analysis or claim of judicial error, Herman then concludes: "The Appellant begs the Court of Appeals to set aside the entire Order appealed from, recognize no more money are owed and order the house at 2167 Riordan Drive be transferred to him as his un-encumbered sole and separate property and so entered in Santa Clara County records."
This court granted appellant's motion to augment the record to include a premarital "Contract" dated October 1, 1956. In that document the parties agreed only to baptize and rear their children in the Roman Catholic faith.
In this entire brief there is not a single statement that even hints at a cognizable issue on appeal. No argument is presented relevant to the November 2007 order from which he appealed; there is only the above-quoted one-sentence request to set aside the order and give the house to him instead of Zdenka. Such relief is not the province of this court in the first instance. No basis for overturning that order (much less the previous orders he continues to find objectionable) is even offered.
Although Zdenka elected not to file a responsive brief, she did move to dismiss on grounds that included frivolousness of the appeal. We denied her motion to dismiss, but we agree that the appeal is frivolous. Herman's brief falls far short of compliance with California Rules of Court, rule 8.204(a), and clearly evinces his bad faith in resisting compliance with court orders over the last eight years. "Given the past history of this matter and a review of the record before us, we can only conclude that the appeal is totally devoid of merit and was brought merely to harass and delay." (In re Marriage of Schnabel (1994) 30 Cal.App.4th 747, 754.)
"An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts. Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive-- to harass the respondent or delay the effect of an adverse judgment -- or when it indisputably has no merit -- when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
There can be no question that this appeal is prosecuted at least to delay the effect of the November 2007 order, if not also to harass Zdenka. It does not take an attorney of any skill to recognize that the appeal indisputably is "totally and completely without merit." Both parties are elderly. It is pointless to speculate how long Herman intends to drag out these proceedings, but it is clear that without a financial penalty he will continue to "abuse [his] right of access to the judicial system." (In re Marriage of Flaherty, supra, 31 Cal.3dat p. 648.) Accordingly, this court issued a notice pursuant to California Rules of Court, rule 8.276(c) that we were considering the imposition of appellate sanctions, as authorized by Code of Civil Procedure section 907 and by rule 8.276(a).
Zdenka's counsel states that they are in their eighties. The parties' 1956 premarital "Contract" in the Catholic church, however, indicates that Zdenka is now 73 and Herman is 74.
All further references to rules are to the California Rules of Court.
When it appears that an appeal is "frivolous or taken solely for delay," Code of Civil Procedure section 907 authorizes the Court of Appeal to "add to the costs on appeal such damages as may be just." Rule 8.276(a) specifically permits the appellate court to impose sanctions on a party for "(1) Taking a frivolous appeal or appealing solely to cause delay; [¶] (2) Including in the record any matter not reasonably material to the appeal's determination; [¶] (3) Filing a frivolous motion; or [¶] (4) Committing any other unreasonable violation of these rules."
Of the four grounds for sanctions set forth in rule 8.276(a), the first, second, and fourth clearly apply in this case. That Herman is representing himself on appeal is no excuse for abusing the legal process. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121; Muller v. Muller (1959) 174 Cal.App.2d 517, 519.) Consequently, in addition to recovering costs as a successful respondent, Zdenka may submit a motion in superior court to recover any attorney fees she reasonably incurred in the course of this appeal.
The only remaining question is the appropriate amount to require Herman to pay this court for diverting its judicial resources from meritorious appeals. "[T]he appellate system and the taxpayers of this state are damaged by what amounts to a waste of this court's time and resources. [Citations.] Accordingly, an appropriate measure of sanctions should . . . compensate the government for its expense in processing, reviewing and deciding a frivolous appeal." (In re Marriage of Schnabel, supra, 30 Cal.App.4th at p. 755.) Where, as here, "the degree of objective frivolousness and delay is extremely high," there is clear evidence of a bad-faith motive to avoid the effect of prior orders, and an appellant has violated basic procedural rules governing appellate briefs, "our desire to discourage like conduct in the future is very strong." (Keitel v. Heubel (2002) 103 Cal.App.4th 324, 342; see also Pierotti v. Torian (2000) 81 Cal.App.4th 17, 33-34 [discussing factors affecting amount of sanctions].) Accordingly, we have determined that an appropriate amount of sanctions payable to this court is $10,000.
Disposition
The postjudgment order is affirmed. Zdenka is entitled to her costs and attorney fees, if any, in an amount to be determined by the superior court. In addition, Herman is ordered to pay $10,000 to the clerk of this court as a sanction for pursuing a frivolous appeal.
WE CONCUR: RUSHING, P. J., PREMO, J.