Filed 3/23 /15 M iller v. Superior Cour t CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 Mille r appeals from an order of the a ppellate d ivision of the Superior Court of Alameda County ( A ppellate D ivision). In its order, the A ppellate D ivision 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 co ncerned 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”2

and the defendants were captioned as “Helene Miller, An Individual; and The Helene

Miller R evocable 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, t he 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 signa t ure line, execute it, have

her counsel execute it and s end 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 ju dgment 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 A ppellate

D ivision.

On May 30, 2014 , the A ppellate D ivision 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 au thority of Bermudez v. Municipal

Court (1992) 1 Cal.4th 855 ( Bermudez )

. On August 11, 2014, Postag filed a motion to dismiss the appeal.3

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 acknowledge d receipt of Miller’s belated opposition

and issued an order deferring our ruling on the motion to dismiss pendi ng briefing. Both parties filed briefs addressing the issue of this court ’ s jurisdiction to review the Appellate Division’s order

. I n addition to addres sing the question of this court’ s jurisdiction, the parties also included in their brief s arguments r elated to the merits of the purported appeal

. DISCUSSION We conclude this court does not have jurisdiction to review the A ppellate

D ivision’ s order. A state appellate court does not have jurisdiction to review limited jurisdiction decisions of an appel late 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 t ransfer is necessary. (Cal. Rules of Court, rule 8.1002.) Neither of these transfer processes applies here. The A ppellate D ivision did not certify the case for transfer, and this court did not order transfer of the case. Further,4

Miller never petitio ned 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 appe llate 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 A ppellate D ivision 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 A ppellate D ivision’s affirmance

of the tria l 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. Conseque ntly, 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 preclud ed 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

o f 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 ot her 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 Civi l Procedure section 904.1.5 DISPOSITION The motion to dismiss the appeal is granted.

_________________________ Dondero, J.

We concur:

_________________________ Humes, P.J.

_________________________ Margulies, J.