Bank of America v. Sloan CA1/4 ( 2013 )

Filed 11/5/13 Bank of America v. Sloan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
BANK OF AMERICA, N.A.,
Plaintiff,
A137739
v.
SAMUEL H. SLOAN, (San Francisco County
Super. Ct. No. PTR33273030)
Objector and Appellant.
SAM WARE,
Movant and Respondent.
Appellant Samuel Sloan appeals from an order granting his attorney’s motion to
be relieved as counsel. Because the order is not appealable, we dismiss the appeal.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
This appeal arises out of a dispute involving a trust established by Kenneth and
Rachel Goodall for the benefit of their only son, Michael. In the 1990s, the Goodall
parents died, and Bank of America assumed responsibilities as trustee of the trust. In
1999, Michael initiated the instant action in San Francisco and petitioned to have Bank of
America removed as trustee. The petition was denied. Michael died in 2010, and the
Marin County Superior Court appointed appellant Sloan as the administrator of Michael’s
estate.
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The San Francisco case was inactive for approximately 11 years until 2011 when
Bank of America filed two motions: one to confirm the assets of the Goodall Trust and
another to determine the trust’s proper beneficiaries. Shortly thereafter, Sloan retained
attorney Sam Ware to represent him. The superior court ordered the assets of the Goodall
Trust to be distributed to Rachel Goodall’s siblings and a charity, Guide Dogs for the
Blind, Inc.
After about a year of representing Sloan, Ware filed a motion to be relieved as his
counsel in the San Francisco case. Ware’s short, three-line declaration in support of his
motion alleged a “personality conflict” that made it “unreasonably difficult” for him to
represent Sloan. Sloan filed no opposition. Meanwhile, Bank of America filed a motion
for sanctions, which the court continued until after Ware’s motion to be relieved was
heard.
At the hearing on the motion to withdraw, the court gave Ware an opportunity to
elaborate on why he was seeking to withdraw. Ware explained that there was a
“fundamental difference” between how he and Sloan approached the case, and that Sloan
had twice filed paperwork that contained inappropriate language without his advice or
consent. Sloan orally opposed the motion, contending that it was improper for Ware to
withdraw to avoid Bank of America’s threat of sanctions. In granting Ware’s motion, the
trial court stated that “Mr. Ware has made it clear that there is a breakdown in the
attorney-client relationship that requires the Court to allow him to withdraw at this time.”
The order was signed and filed two weeks later at the hearing on Bank of America’s
motion for sanctions.1 This appeal followed.
1
The trial court denied Bank of America’s motion for sanctions. Sloan appealed from
that order (A137740), but this court dismissed the appeal on February 27, 2013, because
Sloan was not an “aggrieved” party. (Code Civ. Proc., § 902.) Sloan has also previously
appealed from two other orders (A137189, A137190). Both appeals were dismissed, one
for being untimely and the other because the order was not appealable. (Cal. Rules of
Court, rule 8.104(a)(1)(C); Code Civ. Proc., § 1008, subd. (g).)
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II.
DISCUSSION
In his opening brief, Sloan asserts myriad theories purporting to support a reversal
of the trial court’s order. His main argument seems to be that Ware’s withdrawal should
have been denied because Ware wanted to withdraw out of fear of Bank of America’s
efforts to obtain sanctions. Sloan’s other arguments are scattered amid a rambling
narrative of the case and include, among other assertions, that Bank of America lacks
standing to appear and that the entire case should be dismissed. Ware, in his three-page
response, contends that Sloan has not been aggrieved and that the trial court’s order was
“well supported in the record” because Sloan twice filed pleadings that contained
objectionable language without consulting him.
Although neither party raises the issue, we conclude that the order granting Ware’s
motion to be relieved as counsel is not appealable. A reviewing court must raise the issue
on its own motion if there is any doubt as to the appealability of an order, because “[t]he
existence of an appealable judgment is a jurisdictional prerequisite to an appeal.”
(Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) “There are three categories of
appealable 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-judgment rule.
[Citations.] . . . . [¶] Our inquiry is thus narrowed to the third category of appealable
orders, i.e., judicially recognized exceptions to the final judgment rule. The only
plausible exception applicable here is what we will refer to as the ‘collateral order’ class
of appealable orders: ‘When a court renders an interlocutory order collateral to the main
issue, dispositive of the rights of the parties in relation to the collateral matter, and
directing [the] payment of money or performance of an act, direct appeal may be taken.’
[Citation.]” (Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1235, original
italics.)
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Messih v. Lee Drug, Inc. (1985) 174 Cal.App.3d 312 applied the collateral-order
rule to orders granting an attorney’s motion to be relieved as counsel. As with Sloan, the
appellant in Messih attempted to appeal from an order granting his attorney’s motion to
withdraw. (Id. at p. 314.) The court held that “absent a provision for the payment of
money, in an order ruling on an attorney’s motion to withdraw, such an order is a
nonappealable interim order which may be reviewed immediately only by way of a
petition for extraordinary writ.” (Id. at p. 315, fn. omitted, italics added; see also
Conservatorship of Rich, supra, 46 Cal.App.4th at p. 1236 [order denying motion to
substitute one attorney for another is not an appealable order].)
The order granting Ware’s motion to be relieved as counsel does not direct the
payment of money or the performance of an act, and therefore does not come within the
“collateral order” class of appealable orders. (Conservatorship of Rich, supra,
46 Cal.App.4th at p. 1235; Messih v. Lee Drug, Inc., supra, 174 Cal.App.3d at p. 315.)
Neither party requests that we treat this appeal as a writ petition, and we decline to
exercise our discretion to do so under the circumstances of this case. (Olson v. Cory
(1983) 35 Cal.3d 390, 401; see also Clovis Ready Mix Co. v. Aetna Freight Lines (1972)
25 Cal.App.3d 276, 281 [nonappealable order treated as a writ “in the interests of justice
and to avoid unnecessary delay”].) As in Messih, the “total lack of substantive merit” in
the contentions on appeal persuades us that this is not a circumstance where we should
exercise our discretion. (Messih at p. 315, fn. 4.)
III.
DISPOSITION
The appeal is dismissed. Sloan’s request for oral argument is denied.
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_________________________
Humes, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Rivera, J.
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