Miller v. Superior Court CA1/1

Filed 3/23/15 Miller v. Superior Court CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

HELENE MILLER, Plaintiff and Appellant, A142052 v. SUPERIOR COURT OF ALAMEDA (Alameda County COUNTY, Super. Ct. No. RG14716325) Defendant and Respondent; ANNA MARIE POSTAG, Real Party in Interest.

Helene Miller appeals from an order of the appellate division of the Superior Court of Alameda County (Appellate Division). In its order, the Appellate Division affirmed the trial court’s denial of plaintiff’s motion for an order of contempt against real party in interest Anna Marie Postag. Postag filed a motion to dismiss Miller’s appeal in this court for lack of jurisdiction. We grant Postag’s motion, and dismiss Miller’s appeal. FACTUAL AND PROCEDURAL BACKGROUND The underlying action is a limited jurisdiction case that resulted in a final judgment. The facts leading up to the action are not relevant to this appeal. In brief, the action concerned an alleged breach of a settlement agreement involving a prior lawsuit. Below, the plaintiff was captioned as “Bette B. Postag Trust By Ann Postag, Trustee”

and the defendants were captioned as “Helene Miller, An Individual; and The Helene Miller Revocable Trust By Helene Miller, Trustee.” On December 14, 2011, judgment was entered. The trial court ordered Miller to pay Postag the sum of $2,100, plus interest. Within its ruling, the court addressed a mutual release proposed by Postag, stating that “Postag the individual is a necessary party to the settlement agreement and must sign in that capacity as well as her capacity as trustee. Postag shall add her name as an individual to the signature line, execute it, have her counsel execute it and send it to Miller for her and her attorney’s signature.” The civil contempt motion at issue here was initiated after Postag and her attorney failed to execute the document. On February 22, 2012, Postag, acting as trustee, filed a motion to vacate the judgment as to Ann Postag individually. On July 25, 2012, the trial court denied the motion to vacate. On December 27, 2013, Miller’s attorney filed a declaration requesting an order of contempt requiring Postag and her attorney to execute the release. On February 3, 2014, Postag filed her opposition to the contempt motion. On February 5, 2014, the trial court, with a different judge than the one who had presided over the earlier proceeding, denied Miller’s motion for an order re contempt. The judge concluded a contempt finding was not possible as the court never had jurisdiction over Postag as an individual, nor did it have jurisdiction over her attorney. On March 6, 2014, Miller filed a petition for writ of review with the Appellate Division. On May 30, 2014, the Appellate Division issued an order affirming the trial court’s order denying the motion for contempt. On June 6, 2014, Miller filed a notice of appeal from the May 30, 2014 ruling, indicating that her appeal was being taken under the authority of Bermudez v. Municipal Court (1992) 1 Cal.4th 855 (Bermudez). On August 11, 2014, Postag filed a motion to dismiss the appeal.