Filed 4/4/24 Deen v. Deen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ISHA DEEN et al., D079971
Plaintiffs, Cross-Defendants, and
Appellants,
(Super. Ct. No. 37-2016-
v. 00022636-CU-OR-CTL)
CHODRY DEEN et al.,
Defendants, Cross-Complainants,
and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Ronald F. Frazier, Judge. Dismissed.
Todd Daniel Beld for Plaintiffs, Cross-Defendants, and Appellants.
Sana Deen and Sidrah Deen, in pro. per., for Defendants, Cross-
Complainants, and Respondents.
INTRODUCTION
This appeal arises from a dispute between two factions of a family over
a home purchased in Rancho Santa Fe. Each side⎯Isha Deen and her
husband, Kashif Khwaja (the Khwaja family) and Sana and Sidrah Deen,
sisters of Isha, and their now-deceased father Chodry Deen (the Deen family)
⎯sought quiet title as to the other, as well as to remove any cloud on title, in
an action in the superior court.
Isha filed a notice of removal to remove the action in its entirety,
including all cross claims, to the United States Bankruptcy Court. Shortly
after filing her notice of removal, Isha voluntarily dismissed her bankruptcy
proceeding, and then asserted this constituted a dismissal of the entire
action. The bankruptcy court disagreed and remanded the case back to the
superior court. The Khwaja family appealed the remand order to the
Bankruptcy Appellate Panel (BAP), and although they initially sought a stay
pending appeal, they later voluntarily withdrew that motion for a stay.
Following the remand order from the bankruptcy court, the Khwaja
family filed in the superior court a “Motion for Injunction.” Despite how they
styled their motion, in substance, the Khwaja family sought a stay of the
superior court proceedings pending their appeal in the BAP. The superior
court denied the motion, resulting in this appeal.
On our de novo review, we conclude the relief sought in the Khwaja
family’s “Motion for Injunction” was to stop or stay the superior court
proceedings. Because a motion to stay is not appealable, we lack jurisdiction
to consider this appeal.1 We also decline to exercise our discretion to treat
the appeal as a petition for writ relief. For these reasons, we shall dismiss
the appeal in its entirety.
1 On our own motion, we took judicial notice of the superior court records
in this case and requested supplemental briefing on the question of
appealability.
2
FACTUAL AND PROCEDURAL BACKGROUND
Although this case has a long and complicated history, we focus only on
the facts necessary to our consideration of appealability.
In July 2016, the Khwaja family commenced an action in superior court
against the Deen family to quiet title to a home purchased in Rancho Santa
Fe. The Deen family cross-complained with a competing quiet title cause of
action. The superior court bifurcated trial on the quiet title causes of action
from other causes of action, and denied both claims. The Khwaja family
appealed the judgment. In March 2019, we dismissed that appeal as an
appeal of a non-final judgment given the remaining unadjudicated causes of
action. (Deen v. Deen (Mar. 13, 2019, D073538) app. dism.)
As trial on the remaining claims approached, in September 2019, Isha
filed a voluntary Chapter 13 bankruptcy petition. In December 2019, Isha
filed a notice of removal to remove the superior court action to the United
States Bankruptcy Court, commencing an adversary proceeding.2
In April 2020, Isha requested a dismissal of her bankruptcy petition,
which the court granted. On April 10, in the adversary proceeding, the
bankruptcy court issued a notice to the parties pursuant to Local Bankruptcy
Rule 7041−23 stating that Isha’s bankruptcy petition was dismissed and the
2 An adversary proceeding is a proceeding, in bankruptcy court and
connected to a bankruptcy proceeding, “to determine a claim or cause of
action removed under 28 U.S.C. § 1452.” (Fed. Rules Bankr. Proc., rule
7001(10); March & Shapiro, Cal. Practice Guide: Bankruptcy (The Rutter
Group 2023) ¶ 20:1.)
3 At that time, Local Bankruptcy Rule 7041–2 provided that, after
dismissal of a bankruptcy proceeding, a related adversary proceeding “may be
dismissed” unless a party moves to continue the adversary proceeding. (U.S.
Bankruptcy Court, Southern Dist. of Cal., Local Bankruptcy Rules, rule 7041-
2(a) (February 1, 2020, revision).)
3
adversary proceeding would be closed unless a party sought to continue the
proceeding. In May 2020, the bankruptcy court closed the adversary
proceeding.
In December 2020, the Deen family moved to reopen the adversary
proceeding and remand this case back to superior court. In February 2021,
the bankruptcy court granted the motion, reopening the adversary proceeding
and remanding this case to the superior court.
The Khwaja family filed a notice of appeal of the reopening and remand
order and a motion to stay the order pending appeal in bankruptcy court.
Shortly thereafter, the Khwaja family withdrew the motion to stay the order.
In February and March 2021, the Khwaja family filed two “notices” in
bankruptcy court claiming that Isha’s adversary proceeding had been
dismissed and stating they were voluntarily dismissing the adversary
proceeding citing Local Bankruptcy Rule 7041–2 and related federal rules of
procedure.
In March 2021, the BAP denied a motion by the Khwaja family for stay
pending appeal, directing them to make the motion first in bankruptcy court
as required by bankruptcy rules. From the record before us, it does not
appear the Khwaja family did so.
In November 2021, the Khwaja family filed the “Motion for
Injunction.”4 In sum, the Khwaja family contended that the superior court
lacked jurisdiction because Isha had removed the case to bankruptcy court,
4 The Khwaja family also sought dismissal in a “Motion to Vacate Dates
or Dismiss for Lack of Jurisdiction,” which the superior court denied. The
Khwaja family does not challenge this ruling on appeal, recognizing that
there is no basis in Code of Civil Procedure section 904.1, subd. (a)(1)–(13) for
appeals of an order to dismiss.
4
the case had been dismissed in bankruptcy court, and the order to reopen the
case was on appeal in the BAP, which therefore held jurisdiction.
Based on the alleged absence of jurisdiction, the Khwaja family sought
a court order requiring the Deen family to “[s]top discovery and litigation of
the case in [s]uperior [c]ourt as the case is removed, dismissed and is under
appeal” and to strike or withdraw certain documents. They asserted the
court should grant a preliminary injunction as defined by Code of Civil
Procedure5 section 525. Continuing the litigation in superior court during
the BAP appeal, they argued, would result in waste and irreparable injury
(§ 526, subd. (a)(2)), a violation of their rights in the Property (§ 526,
subd. (a)(3)), and a multiplicity of proceedings (§ 526, subd. (a)(6)). The
Khwaja family also argued the BAP appeal operates as a stay of the
conflicting superior court proceedings under section 916.
At the hearing on the “Motion for Injunction,” Isha cited section 526,
subdivision (a)(6), but spent the remainder of her argument discussing
section 916 and the BAP appeal.
In December 2021, the superior court denied the Khwaja family’s
“Motion for Injunction.” It found that the bankruptcy court had remanded
the case and the Khwaja family had not obtained a stay from any federal
court. It is this denial order the Khwaja family now appeals.6
5 Further undesignated statutory references are to the Code of Civil
Procedure.
6 After they filed this appeal, in March 2023, the Khwaja family filed a
petition to this court for writ of supersedeas seeking to enforce a section 916
automatic stay or to obtain a discretionary stay of the superior court
proceedings during the pendency of this appeal and their appeal before the
BAP. We summarily denied the writ petition.
5
In June 2022, the BAP issued a decision affirming the order reopening
and remanding the case. Relevant here, the BAP concluded Isha’s adversary
proceeding had merely been administratively closed, not dismissed. The BAP
also determined the bankruptcy court did not abuse its discretion in
remanding the case to the superior court. The Khwaja family has now
appealed the BAP decision to the Ninth Circuit.
In April 2023, the bankruptcy court issued a “Notice of Remand of
Case” clarifying that, “pursuant to the order of this Court entered on
2/12/21,” (the remand order) the case “has been remanded” to the Superior
Court of San Diego.7
DISCUSSION
I.
Appellate Jurisdiction Is Lacking
“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 (1) an appealable order or (2) an appealable
judgment.” (Ibid.) A trial court order is not appealable unless “made so by
statute.” (Ibid.; see also Smith v. Smith (2012) 208 Cal.App.4th 1074, 1083
[“In the absence of a statute authorizing an appeal, we lack jurisdiction to
review a case even by consent, waiver, or estoppel.”].) Section 904.1,
subdivision (a), provides the statutory bases for appeals.
The Khwaja family asserts appellate jurisdiction exists under section
904.1, subdivision (a)(6), which permits an appeal from an order “refusing to
7 On our own motion, we take judicial notice of the bankruptcy court’s
current docket in the Adversary Proceeding, including the Notice of Remand.
(Evid. Code, §§ 459, subd. (a), 452, subd. (d); see Van Zant v. Apple Inc. (2014)
229 Cal.App.4th 965, 971, fn. 3.)
6
grant or dissolve an injunction.” We first examine whether the “Motion for
Injunction” truly sought an injunction. Because it does not, we conclude
appellate jurisdiction is lacking.
It is the nature of the relief sought, rather than the label placed on a
motion, that determines the nature of a motion. (PV Little Italy, LLC v.
MetroWork Condominium Assn. (2012) 210 Cal.App.4th 132, 142–143; Sole
Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193 [“The
proposition that a trial court may construe a motion bearing one label as a
different type of motion is one that has existed for many decades. ‘The
nature of a motion is determined by the nature of the relief sought, not by the
label attached to it. The law is not a mere game of words.’ ”].) This principle
applies in the context of an injunction. (Brown v. Upside Gading, LP (2019)
42 Cal.App.5th 140, 145 (Brown) [“Whether a particular order constitutes an
appealable injunction depends not on its title or the form of the order, but on
‘the substance and effect of the adjudication.’ ” (Internal quotation marks
omitted.)].) Consequently, it is not dispositive that the Khwaja family titled
their motion as a “Motion for Injunction,” or that the superior court borrowed
the Khwaja family’s chosen title in the drafting of its minute order.8
To determine the nature of the relief sought, we look to the language of
the motion. In the motion, the Khwaja family pointed to section 525, which
describes an injunction as “a writ or order requiring a person to refrain from
a particular act.” The motion sought “to stop Respondent from proceeding
with this action” and to “[s]top discovery and litigation of the case in
8 The Khwaja family cites to Lytwyn v. Fry’s Electronics, Inc. (2005) 126
Cal.App.4th 1455, 1468, an unpublished case after being superseded by
Supreme Court grant of review in Lytwyn v. Fry’s Electronics Inc. (Cal. 2005)
28 Cal.Rptr.3d 3, and not republished. We therefore decline to address it.
(Cal. Rules of Court, rule 8.1115(a).)
7
[s]uperior [c]ourt as the case is removed, dismissed and is under appeal in the
BAP.” As they explained in their opening brief on appeal, the Khwaja family
“seek[s] to preserve the status quo while substantial issues of law,
challenging the jurisdiction of both the bankruptcy court and the superior
court below to proceed with the State Court Action, whether in the adversary
proceeding in federal bankruptcy court or in the action below on the
complaint, are determined in the pending appeals.”
These requests mirror “[t]he purpose of the automatic stay provision of
section 916, subdivision (a) ‘[which] is to protect the appellate court’s
jurisdiction by preserving the status quo until the appeal is decided.’ ”
(Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (Varian).)
In substance, then, the Khwaja family sought a court order staying the
superior court proceedings pending the BAP appeal.9
That the relief sought was for the Deen family to stop an action does
not automatically render the requested relief injunctive in nature: “[a] court
order nearly always requires some action or inaction from one or both parties
or their counsel” which “does not render nearly all court orders injunctive in
nature.” (Brown, supra, 42 Cal.App.5th at p. 145.) When an order involves
the court’s authority to control the litigation before it, the order is not, in
substance, an injunction. (Ibid.) Here, the Khwaja family sought an order
requiring the Deen family to refrain from action in the court’s own
proceeding, which is not injunctive relief.
Rather, injunctions necessary to prevent the “multiplicity of judicial
proceedings” (Code Civ. Proc., § 526, subd. (a)(6); Civ. Code, § 3423) are
9 At the time of the motion, the appeal was in front of the BAP. The BAP
since rendered decision, and the Khwaja family has appealed to the Ninth
Circuit.
8
issued by one California court as to a concurrent action involving the same
dispute in a different California tribunal or court of a different state. (See
Advanced Bionics Corp. v. Medtronic, Inc. (2002) 29 Cal.4th 697, 705–706.)
In the case cited by the Khwaja family, for example, Scott v. Industrial Acc.
Com. (1956) 46 Cal.2d 76, 79–82, the petitioner sought in superior court to
halt concurrent proceedings in front of the Industrial Accident Commission
arising out of the same personal injuries. The Khwaja family fails to cite any
authority for the proposition that a court order denying a request to prevent
an action within its own proceeding is an order denying an injunction.
We are also unpersuaded by the Khwaja family’s argument on reply
that they sought a permanent injunction “to avoid the litigation itself” not “to
keep the subject of litigation in status quo” because of their belief the case
had been dismissed in bankruptcy court. This argument contradicts the text
of their “Motion for Injunction” and the text of their opening brief on appeal.
In addition, federal court orders are final and have res judicata effect until
they are reversed on appeal. (See Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437
F.3d 923, 928 [“[I]n federal courts, a district court judgment is ‘final’ for
purposes of res judicata. This is so even during the pendency of an appeal.
Moreover, ‘[a] federal [district court] judgment is as final in California courts
as it would be in federal courts.’ ” (Internal citations and quotation marks
omitted.)]; Lumpkin v. Jordan (1996) 49 Cal.App.4th 1223, 1230 [“A federal
judgment ‘has the same effect in the courts of this state as it would have in a
federal court.’ The federal rule is that ‘a judgment or order, once rendered, is
final for purposes of res judicata until reversed on appeal or modified or set
aside in the court of rendition.’ ” (Internal citations and quotation marks
omitted.)].)
9
The BAP’s decision affirming the reopening of this case based on the
conclusion that the adversary proceeding had not been dismissed is currently
final and holds res judicata effect. The nature of potential relief in superior
court was a stay pending appeal, not a determination of the merits of the
issue on appeal.
Because the Khwaja family sought a stay of the superior court
proceedings, not an injunction, section 904.1, subdivision (a)(6) does not
apply. The Khwaja family suggests no other statutory basis for immediate
appellate jurisdiction, nor do we see any. (Brown, supra, 42 Cal.App.5th at
p. 144 [“the appellant bears the burden of establishing the appealability of
[an interlocutory] ruling” ].) Rather, orders refusing to enforce the stay of
proceedings pending appeal are reviewable by writ or from the final judgment
in the case. (See Varian, supra, 35 Cal.4th at p. 201 [“[T]he trial court’s and
Court of Appeal’s refusals to stay proceedings pending appeal could be
reviewed on an appeal from the judgment.”]; Hedwall v. PCMV, LLC (2018)
22 Cal.App.5th 564, 572 [“the appropriate method of challenging the denial of
an order to enforce the stay arising under section 916 is a petition for writ of
supersedeas”].) We thus lack jurisdiction to consider this appeal.10
10 To the extent the Khwaja family appeals the denial of the portions of
the motion seeking to strike pleadings based on “forged documents,” the
superior court’s ruling is likewise appealable only upon final judgment in the
case. (Walnut Producers of California v. Diamond Foods, Inc. (2010) 187
Cal.App.4th 634, 641.)
It is also unclear whether the Khwaja family additionally sought to
have the recordation of these documents undone. The Khwaja family failed
to include grounds for the withdrawal of recorded documents in the notice of
motion or the “Motion for Injunction.” The motion merely stated that the
court can “request Respondent to administratively withdraw, all false
documents and allegations.” Because they “made at best a brief conclusory
argument on this ground, unsupported by any legal authority,” we conclude
the Khwaja family failed to adequately move for an order requiring the
10
II.
We Decline to Exercise Writ Review
On reply, the Khwaja family alternatively requests that we exercise
writ review. Although we have the power to treat an appeal as a petition for
writ of mandate, “we should not exercise that power except under unusual
circumstances.” (Olson v. Cory (1983) 35 Cal.3d 390, 401; accord San
Joaquin County Dept. of Child Support Services v. Winn (2008) 163
Cal.App.4th 296, 300.) A case may present sufficiently unusual
circumstances where the trial court made a substantive error and judicial
economy would not be served by deferring resolution until final judgment.
(See Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 746.)
Here, we discern no unusual or extraordinary circumstances that
support immediate review of the motion for stay. To the contrary, there are
several circumstances that make writ review inappropriate.
First, we have already considered and denied the Khwaja family’s
petition for writ of supersedeas. They have provided no new information or
arguments suggesting writ review is warranted.
Second, a reversal by the Ninth Circuit would render this appeal
unnecessary, one policy reason for the one final judgment rule. (Vivid Video,
Inc. v. Playboy Entertainment Group, Inc. (2007) 147 Cal.App.4th 434, 443
[“Until a final judgment is rendered the trial court may completely obviate an
appeal by altering the rulings from which an appeal would otherwise have
been taken.” (Internal citations omitted.)].)
Third, we see no risk of contradictory decisions. Distinct issues remain
in front of different courts. In the Ninth Circuit, there is the procedural
withdrawal of recorded documents. (LAOSD Asbestos Cases (2023) 87
Cal.App.5th 939, 954.)
11
bankruptcy question, governed by bankruptcy statutes and rules, whether
Isha’s adversary proceeding was dismissed or merely closed. On the other
hand, the merits of the state law causes of action are in front of the superior
court on remand.
Finally, the BAP’s decision determining that the adversary proceeding
was not dismissed, but rather was properly reopened, is final unless and until
it is reversed by the Ninth Circuit. The mere existence of the appeal in
federal court does not prevent the superior court from proceeding: “ ‘[t]he
appeal of a remand order does not deprive the state court of jurisdiction
unless a stay is obtained from the federal court.’ ” (Martinez v. Landry’s
Restaurants, Inc. (2018) 26 Cal.App.5th 783, 794.)
In sum, no unusual circumstances exist to warrant an immediate
second review of the denial of a stay pending appeal, or an immediate
determination of the merits of an issue on appeal in the Ninth Circuit.
DISPOSITION
The appeal is ordered dismissed. The appellants, the Khwaja family,
shall bear costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
DO, J.
WE CONCUR:
DATO, Acting P. J.
BUCHANAN, J.
12