Pozdro v. Hayward CA1/3

Filed 5/25/16 Pozdro v. Hayward CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION THREE
THOMAS JOHN POZDRO,
Plaintiff and Respondent, A144471
v. (San Mateo County
LAURA BERNADETTE HAYWARD, Super. Ct. No. FAM0114986)
Defendant and Appellant.
LAURA BERNADETTE HAYWARD,
A145431
Plaintiff and Appellant,
v. (San Mateo County
THOMAS JOHN POZDRO, Super. Ct. No. CIV527654)
Defendant and Respondent.
In a dissolution action and related civil action, the former wife appeals orders
permitting her ex-husband’s new wife to appear in the actions as counsel pro hac vice.
We shall dismiss the appeals. Orders granting pro hac vice applications and denying
motions to strike pro hac vice admission are not appealable.
Statement of Facts
Laura Bernadette Hayward and Thomas John Pozdro were married in March 2004
and are the parents of a son they adopted in 2007. Both parties are employed as
commercial pilots, Pozdro with Allegiant Air and Hayward with United Parcel Service.
Pozdro moved from California to Las Vegas, Nevada in August 2011 and, in September,
petitioned in San Mateo County Superior Court for dissolution of marriage (No.
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FAM0114986). The dissolution action is ongoing, with pending claims concerning child
support and property division. A separate civil action was initiated in March 2014 (No.
CIV527654). In the civil action, Hayward sued Pozdro for defamation and related claims
arising out of Pozdro’s communications to Hayward’s employer and other third parties
accusing her of disability insurance fraud.1
Pozdro remarried in December 2013. He married Crystal Eller, an attorney
licensed to practice law in Nevada. In June 2014, Eller filed in the civil case an
application to appear on behalf of Pozdro as counsel pro hac vice. (Cal. Rules of Court,
rule 9.40.) The application was granted, without opposition, in July 2014. Six months
later, in January 2015, Eller sought pro hac vice admission in the dissolution proceedings.
Her application was granted ex parte.
On February 23, 2015, Hayward filed a notice of appeal from the January 20, 2015
order granting pro hac vice admission in the dissolution proceedings. At this time,
Hayward also sought to appeal the July 2014 order granting pro hac vice admission in the
civil case but this court dismissed the appeal as untimely. In April 2015, Hayward filed a
motion in the civil case “to strike the admission pro hac vice” of Eller. The motion to
strike was denied in June 2015 and Hayward filed a notice of appeal from that order.
Thus, the consolidated appeals at issue are Hayward’s challenge to the order granting
Eller’s pro hac vice admission in the dissolution proceedings and the order denying a
motion to strike Eller’s pro hac vice admission in the civil case.
Discussion
Pozdro contends, as a preliminary matter, that the challenged orders are not
appealable. The contention is correct, mandating dismissal of the appeals.
“Generally, a reviewing court acts in the procedural context of either a direct
appeal or a writ proceeding.” (Griset v. Fair Political Practices Com. (2001) 25 Cal. 4th
688, 696.) “A reviewing court has jurisdiction over a direct appeal only when there is
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We recently affirmed an order denying Pozdro’s anti-SLAPP motion to strike the civil
complaint. (Code Civ. Proc., § 425.16; Hayward v. Pozdro (Mar. 30, 2016, A143939)
[nonpub. opn.].)
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(1) an appealable order or (2) an appealable judgment.” (Ibid.) “Analytically, there are
three broad categories of appealable judgments and orders”: (1) final judgments;
(2) orders and interlocutory judgments made appealable by Code of Civil Procedure
section 904.1 or other statutes; and (3) “[c]ertain judgments and orders that, although
they do not dispose of all issues in the case, are considered ‘final’ for appeal purposes
and thus are exceptions to the ‘one final judgment rule.’ ” (Eisenberg et al., Cal. Practice
Guide: Civil Appeals & Writs (The Rutter Group) ¶ 2:20, p. 2-19, italics omitted.)
In her opening appellate brief, Hayward argues that the orders are appealable
under Code of Civil Procedure section 904.1, subdivision (a)(6) as orders granting an
injunction or as collateral orders that should be considered final for appeal purposes. Her
argument relies heavily upon Meehan v. Hopps (1955) 45 Cal. 2d 213 (Meehan), in which
the California Supreme Court held appealable an order denying a motion to disqualify
opposing counsel for a conflict of interest based upon counsel’s prior representation of
the moving party. In Meehan, the order was held appealable on two bases: (1) as an order
denying an injunction because defendant’s motion sought “an order ‘restraining and
enjoining’ plaintiffs’ attorneys, not only to prevent them from participating in the case
but also to restrain them from using or making available out of court the information they
had derived from the former confidential relationship” and (2) as a final collateral order
“[b]ecause the trial court’s order denying [defendant’s] motion left nothing further of a
judicial nature for a final determination of his rights regarding opposing counsel.” (Id. at
pp. 215, 217.)
Meehan is inapplicable. At issue here is pro hac vice admission of opposing
counsel, not a disqualification motion. There are sound policy reasons why an order
denying a motion to disqualify counsel is appealable prior to final judgment. As
explained by the Meehan court, if the moving party is not allowed to immediately appeal
the denial of a motion for disqualification, the damage resulting from the alleged conflict
of interest, i.e., the revelation of confidential communications, which the moving party
sought to avoid, would be accomplished by the time final judgment is entered. (Meehan,
supra, 45 Cal.2d at p. 218.) Pro hac vice admission does not present the same concerns.
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Hayward has not cited any case in which an order granting pro hac vice admission,
or an order denying a motion to strike pro hac vice admission, has been found appealable.
Cases that have reviewed orders granting or denying pro hac vice orders have done so by
petitions for a writ of mandate. (E.g., Magee v. Superior Court (1973) 8 Cal. 3d 949, 951-
952; Walter E. Heller Western, Inc. v. Superior Court (1980) 111 Cal. App. 3d 706, 708;
see also Sheller v. Superior Court (2008) 158 Cal. App. 4th 1697, 1709 [order sanctioning
pro hac vice counsel reviewable by writ, not appeal].)
“It is of course fundamental that an appellate court has no appellate jurisdiction to
entertain and pass upon an appeal from a nonappealable order.” (Efron v. Kalmanovitz
(1960) 185 Cal. App. 2d 149, 152.) We do have the authority to treat an infirm appeal as a
writ petition but will do so only under extraordinary circumstances. (Estate of Weber
(1991) 229 Cal. App. 3d 22, 25.) Hayward has not requested that relief here and the
circumstances do not warrant it, as the record fails to establish a prima facie case of abuse
of discretion.
Disposition
The purported appeals from the orders on pro hoc vice admission are dismissed.
Appellant Hayward’s request to augment the record on appeal is denied. Respondent
Pozdro’s request for judicial notice in connection with that motion is denied. Respondent
shall recover costs incurred in the proceedings in this court upon timely application in the
trial court. (Cal. Rules of Court, rule 8.278(c)(1).)
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_________________________
Pollak, Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
A144471, A145431
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