Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FFL092824
Swager, J.
In this paternity action, Cherry Baena-Levstek (appellant) appeals the trial court’s ruling granting standing to Edwin H. Rayford (respondent) to establish his parental relationship to appellant’s daughter. She also appeals the orders granting respondent’s request for DNA testing and ordering mandatory visitation. As we shall explain, at least two of these orders are not appealable. As to the other order, even if it is appealable, the issue is moot. Accordingly, we dismiss the appeal in its entirety.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The parties have failed to provide this court with a record that would permit a meaningful review of the issues raised by appellant. Accordingly, our recitation of the facts is severely limited.
The record before us does not contain any of the papers filed by respondent or appellant in connection with the request for DNA testing, nor does it contain any papers filed by appellant or respondent in connection with the motion to quash.
On December 14, 2006, the trial court considered respondent’s motion for DNA testing and his request for custody and visitation with appellant’s daughter. The court also considered appellant’s motion to quash respondent’s summons and petition. The motion to quash was denied, the court having found that respondent had standing to bring a paternity action under Family Code section 7630, subdivision (b). The court ordered genetic testing on its own motion pursuant to sections 7541 and 7551. The custody and visitation issues were continued pending the results of the DNA test.
The court also considered a request for harassment restraining orders arising out of a separately filed case.
Family Code section 7630, subdivision (b), provides: “Any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under subdivision (d) or (f) of Section 7611.” All subsequent statutory references are to the Family Code unless indicated otherwise.
Section 7541, subdivision (a), provides, in part: “Notwithstanding Section 7540, if the court finds that the conclusions of all the experts, as disclosed by the evidence based on blood tests performed . . . are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.”
Section 7551 provides, in part: “In a civil action or proceeding in which paternity is a relevant fact, the court may upon its own initiative or upon suggestion made by or on behalf of any person who is involved . . . order the mother, child, and alleged father to submit to genetic tests. If a party refuses to submit to the tests, the court may resolve the question of paternity against that party or enforce its order if the rights of others and the interests of justice so require. A party’s refusal to submit to the tests is admissible in evidence in any proceeding to determine paternity. For the purposes of this chapter, ‘genetic tests’ means any genetic test that is generally acknowledged as reliable by accreditation bodies designated by the United States Secretary of Health and Human Services.”
On April 16, 2007, the court considered respondent’s order to show cause for custody and visitation. Appellant objected to the proceedings, arguing her husband was the sole presumed father of the child, notwithstanding the fact that the marriage occurred in April 2006 and the child was born some four months later. She also alleged that respondent lacked standing. The court observed that it had already ruled on the issue of standing when it denied appellant’s motion to quash and that it was too late for the court to reconsider its ruling.
While the record contains no evidence regarding the results of the DNA testing, the court’s actions indicate that the results showed that respondent is the child’s biological father. Respondent so states in his opening brief, and appellant’s briefs do not assert otherwise.
Appellant was awarded temporary custody of the child subject to respondent’s rights of visitation. Respondent was granted one day per week of supervised visitation, up to a maximum of 90 minutes. Appellant filed her notice of appeal on May 8, 2007.
DISCUSSION
I. Failure to Comply with California Rules of Court.
Rule 8.204(a)(2)(B) of the California Rules of Court provides that an appellant’s opening brief must “[s]tate that the judgment appealed from is final, or explain why the order appealed from is appealable.” This rule serves multiple purposes. “First, it requires an appellant to make the preliminary and fundamental determination that the order appealed from is, in fact, an appealable order or judgment. [Citation.] Second, it demonstrates both to other parties and to the Court of Appeal, before work on the merits of a case is begun, why the order is appealable.” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 556 [construing predecessor to current rule 8.204(a)(2)(B)].)
All further references to rules are to the California Rules of Court.
Appellant’s opening brief contains no “statement of appealability.” It indicates only that “The court has noted on the record that neither the issue of ‘standing’ nor the results of the DNA tests have yet resulted in any Orders for a Judgement of Paternity which would establish a parent/child relationship in this matter.” The failure to comply fully with the requirement that an appellant provide a statement of appealability may result in an appellate court’s declining to file the opening brief, or striking it (rule 8.204(e)(1) & (e)(2)(B)) and a further failure to comply fully with rule 8.204 may result in our dismissal of the appeal for failure to submit a brief in compliance with the California Rules of Court. (Lester v. Lennane, supra, 84 Cal.App.4th 536, 557; see also Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)
We also note that neither party includes citations to the record in their briefs. Rule 8.204(a)(1)(C) provides that each brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” Moreover, the clerk’s transcript provided to us is devoid of many of the documents that the parties refer to in their briefs. In sum, the briefing in this case leaves much to be desired.
For example, respondent cites to the page and line number of a declaration prepared by appellant. The declaration is not contained in the record.
We refer the parties to a leading guide on civil appellate court practice, Eisenberg et al., California Practice Guide: Civil Appeals and Writs (The Rutter Group 2007).
II. Temporary Custody/Visitation Order and Order Denying Motion to Quash are Not Appealable.
We need not resort to dismissing this appeal based on the parties’ failure to comply with the applicable rules of court, however, as at least two of the challenged orders are interlocutory in nature, and no appeal may be taken from an interlocutory order unless expressly authorized by statute.
The “one final judgment rule” provides that an appeal may be taken from a final judgment, but not an interlocutory order. (Code Civ. Proc., § 904.1, subd. (a)(1).) By definition, a judgment is the final determination of the rights of the parties. (Code Civ. Proc., § 577.) A judgment is final when it decides the rights and duties of the parties, terminates the litigation between the parties on the merits, and leaves no issue for future judicial determination except compliance with the judgment’s terms. (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304; Olson v. Cory (1983) 35 Cal.3d 390, 399.)
Stated in the inverse, a judgment that leaves issues to future judicial determination is not a final, appealable determination of the parties’ rights. (See In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 689 [order in dissolution proceedings leaving spousal support and property issues to be tried is not final]; cf. Montenegro v. Diaz (2001) 26 Cal.4th 249, 258–259 [unless stipulated custody agreement contains “clear, affirmative indication” parties intended it to be “a final judicial custody determination,” the trial court must conduct a de novo review of the facts in devising a parenting plan that serves the best interests of the child when one party seeks modification of that agreement]; In re Marriage of Richardson (2002) 102 Cal.App.4th 941, 949–952 [same].)
Among the exceptions to this general rule is that an appeal may be taken from an order made appealable by the provisions of the Family Code. (Code Civ. Proc., § 904.1, subd. (a)(10).) However, none of those provisions provide for an appeal of a temporary child custody/visitation order or a motion to quash. Such orders fall within the general rule that interlocutory orders are not appealable.
It is well established that temporary custody orders are not appealable: “A temporary custody order is interlocutory by definition, since it is made pendente lite with the intent that it will be superseded by an award of custody after trial.” (Lester v. Lennane, supra, 84 Cal.App.4th 536, 559.) Since it is not expressly made appealable, no appeal will lie from such an order. (Id. at pp. 559–560.) It appears to us that the temporary custody/visitation order issued in this case is reviewable only by way of writ petition.
See Lester v. Lennane, supra, 84 Cal.App.4th 536, 565 (“The very nature of such orders compels the swiftest possible review of any challenge. The writ process, not the appeal process, is the way to get that review.”).
Similarly, the denial of a motion to quash is not reviewable on appeal. Code of Civil Procedure section 904.1, subdivision (a)(3), provides that an appeal may be taken “[f]rom an order granting a motion to quash service of summons or granting a motion to stay the action on the ground of inconvenient forum . . . .” (Italics added.) An order denying a motion to quash service of summons is reviewable by petition for writ of mandate. (Code Civ. Proc., § 418.10, subd. (c); Hunt v. Superior Court (2000) 81 Cal.App.4th 901, 905.)
“[E]xcept as provided by the Legislature, the appellate courts have no jurisdiction to entertain appeals. An appealable judgment or order is essential to appellate jurisdiction, and the court, on its own motion, must dismiss an appeal from a nonappealable order.” (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645.) We, therefore, dismiss the appeal as to the denial of the motion to quash and the custody/visitation order.
We can consider an appeal from a nonappealable order or judgment to be a petition for extraordinary writ if (1) the briefs and record before the court contain in substance all the elements required by rule 8.490 for an original mandate proceeding, and (2) there are extraordinary circumstances justifying the exercise of that discretionary power. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 745–747.) This case does not meet either of those requirements.
III. The Appeal From the DNA Testing Order is Moot.
With respect to the appeal from the order for DNA testing, we need not decide whether the order is appealable, as the testing has already occurred, rendering this issue moot. “It is well settled that an appellate court will decide only actual controversies. Consistent therewith, it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events.” (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10.) “A question becomes moot when, pending an appeal from a judgment of a trial court, events transpire which prevent the appellate court from granting any effectual relief.” (Lester v. Lennane, supra, 84 Cal.App.4th 536, 566.)
Even if we were to agree that the court erred in ordering DNA testing, the fact is that the testing has already occurred, the results have been obtained and are on file with the trial court. For this reason, we believe the better course for appellant would have been to promptly challenge the order by filing a writ petition. In any event, we are unable to evaluate the merits of this claim due to the absence in the record of any underlying documentation.
DISPOSITION
The appeal is dismissed.
We concur: Marchiano, P. J., Margulies, J.