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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

v.

SUPERIOR COURT OF ALAMEDA 

COUNTY,

Defendant and Respondent;

ANNA MARIE POSTAG,

Real Party in Interest.

 A142052

 (Alameda County

 Super. Ct. No. RG14716325)

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” 
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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. 
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On August 27, 2014, we issued an order denying Postag’s unopposed motion to 

dismiss without prejudice. We directed Miller to address in her opening brief whether 

she was appealing from an appealable order. 

On September 2, 2014, we acknowledged receipt of Miller’s belated opposition 

and issued an order deferring our ruling on the motion to dismiss pending briefing. 

Both parties filed briefs addressing the issue of this court’s jurisdiction to review 

the Appellate Division’s order. In addition to addressing the question of this court’s 

jurisdiction, the parties also included in their briefs arguments related to the merits of the

purported appeal. 

DISCUSSION

We conclude this court does not have jurisdiction to review the Appellate 

Division’s order. A state appellate court does not have jurisdiction to review limited 

jurisdiction decisions of an appellate division by way of direct appeal. (See Anchor 

Marine Repair Co. v. Magnan (2001) 93 Cal.App.4th 525, 528 (Anchor Marine) [“the 

general statute conferring jurisdiction on the Court of Appeal expressly excludes appeals 

in limited civil cases”], citing Code Civ. Proc., § 904.1, subd. (a).) “There are only two 

procedures that permit us to review decisions of the appellate division under certain 

circumstances: certification and extraordinary writ.” (Anchor Marine, supra,

93 Cal.App.4th at p. 528.)

Under California Rules of Court, rule 8.1005(a)(1), an appellate division may 

certify a case for transfer to the Court of Appeal, either on its own motion or on the 

motion of a party. The appellate division’s certification must “[b]riefly describe why 

transfer is necessary to secure uniformity of decision or to settle an important question of 

law . . . .” (Cal. Rules of Court, rule 8.1005(d)(2).) Similarly, the Court of Appeal may 

order a case transferred to it for hearing and decision if it determines that transfer is 

necessary. (Cal. Rules of Court, rule 8.1002.) 

Neither of these transfer processes applies here. The Appellate Division did not 

certify the case for transfer, and this court did not order transfer of the case. Further, 
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Miller never petitioned to have the case transferred, and never made any showing that 

transfer of the case to this court is necessary.

1

There are additional limited circumstances in which the Court of Appeal may 

review a decision of an appellate division, even where the appellate division has denied a 

motion for certification and transfer. (Anchor Marine, supra, 93 Cal.App.4th at p. 528.) 

Specifically, the Court of Appeal can review an order of the Appellate Division on a 

petition for writ of mandate or other extraordinary writ. (Ibid.) However, Miller did not 

petition for an extraordinary writ, and has made no attempt to show that writ relief would 

be proper in this circumstance.

“ ‘We may [nevertheless] treat an improper appeal as a petition for an 

extraordinary writ . . . where the matter presents an issue of first impression, the issue has 

been thoroughly briefed and our determination is purely one of law.’ [Citation.]” 

(Anchor Marine, supra, 93 Cal.App.4th at p. 530.) The Appellate Division’s affirmance 

of the trial court’s denial of Miller’s request for contempt does not present an issue of 

first impression, nor does it require a determination that is purely one of law. We 

therefore decline to treat Miller’s improper appeal as a petition for writ relief. 

Consequently, Miller’s appeal must be dismissed.

 

1 Miller’s reliance on Bermudez is misplaced. That case construed former Code of Civil 

Procedure section 904.1, subdivision (a)(4), which provided, in part, that an appeal could 

be taken from a superior court judgment except a judgment “ ‘granting or denying a 

petition for issuance of a writ of mandamus or prohibition directed to a municipal court

. . . which relates to a matter pending in the municipal court.’ ” (Bermudez, supra,

1 Cal.4th at p. 860, second italics added.) The Supreme Court held the Legislature had 

not thereby precluded review of a judgment following a ruling on a petition for a writ of 

certiorari relating to a matter pending in the municipal court. (Id. at p. 864.) That entire 

provision has since been deleted from the statute, which now operates to preclude review 

of all limited civil cases. (See Code. Civ. Proc., § 904.1 [“An appeal, other than in a 

limited civil case, is to the court of appeal. An appeal, other than in a limited civil case,

may be taken from any of the following: . . .” (italics added)].) The other two cases 

Miller relies on, Freeman v. Superior Court (1955) 44 Cal.2d 533 and Brady v. Superior 

Court of San Mateo County (1962) 200 Cal.App.2d 69, are also inapposite in that they 

were also, obviously, decided prior to present version of Code of Civil Procedure section 

904.1.
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DISPOSITION

The motion to dismiss the appeal is granted.

_________________________

Dondero, J.

We concur:

_________________________

Humes, P.J.

_________________________

Margulies, J.