Opinion
G060655
06-14-2022
In re Marriage of WENJIN LIANG and LU SHI. v. LU SHI, Appellant. WENJIN LIANG, Respondent,
John L. Dodd & Associates and John L. Dodd for Appellant. The Law Offices of Saylin & Swisher, Brian G. Saylin and Lindsay L. Swisher for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from postjudgment orders of the Superior Court of Orange County, Super. Ct. No. 17D008174, Barry S. Michaelson, and Nancy J. Kasch, Temporary Judges. (Pursuant to Cal. Const., art. VI, § 21.) Motion to dismiss decided in conjunction with appeal, granted in part and denied in part. Postjudgment order affirmed.
John L. Dodd & Associates and John L. Dodd for Appellant.
The Law Offices of Saylin & Swisher, Brian G. Saylin and Lindsay L. Swisher for Respondent.
OPINION
O'LEARY, P. J.
Lu Shi (Father) filed an appeal on August 31, 2021, challenging two postjudgment rulings in his marital dissolution case. The first challenged ruling directed Father to pay Wenjin Liang (Mother) $100,000; the second ruling denied Father's motion to vacate the first ruling.
Because the first challenged ruling was made in a February 8, 2021, minute order that did not direct a further written order to be prepared, Father's appeal from the ruling is untimely and must be dismissed. On the second challenged ruling, although the trial court's underlying denial qualifies as an appealable order that was timely challenged, Father has forfeited any assertion of reversible error for failure to adequately brief the issue. Accordingly, we dismiss the appeal as to Father's first challenged ruling and affirm the court's postjudgment order on the second challenged ruling.
FACTS
I. Stipulated Judgment
Mother and Father were married in 2011, and their child was born the following year. In 2017, the parents separated and began the underlying dissolution proceedings. Two years later, the parties entered into a February 2019 marital settlement agreement the trial court incorporated into its judgment of dissolution the following month.
In December 2020, Mother filed a declaration requesting the trial court to order, among other things, that Father "refund" her $100,000. Mother alleged that, as part of her assent to the marital settlement agreement, she agreed to accept $100,000 less in the parties' division of community assets so that Father could use the money to pay for any child support obligations the court ordered in the future.
II. The February 8, 2021, Payment Ruling
The trial court held a February 8, 2021, hearing on Mother's requests; she appeared and Father did not. After determining Father had received notice of the hearing, the court received evidence and heard oral argument by Mother's counsel. In a minute order the same day, the trial court granted Mother's request and ordered Father to pay Mother $100,000. The minute order did not direct a further written order to be prepared, but Mother's counsel did later submit a formal order the court signed on April 1, 2021. We will refer to the two orders collectively as the court's payment ruling.
Father unsuccessfully moved the trial court to vacate its payment ruling. Father based his motion on Code of Civil Procedure section 473, subdivision (b), and asserted he had "not appear[ed] at the February [8], 2021 hearing due to [a health situation] and inadvertently sle[pt] through the hearing." The court denied the motion at an August 4, 2021, hearing and Father filed this appeal on August 31, 2021, challenging both the payment ruling and the court's denial of his request to vacate it.
DISCUSSION
I. Timeliness of Appeal
Two weeks before oral argument in this court, Mother belatedly moved to dismiss Father's challenges as untimely.. Despite her timing, Mother is partially correct because the record shows the trial court's February 8, 2021, minute order triggered a 180-day deadline to appeal based on an "entry of judgment" as defined in California Rules of Court, rule 8.104(a)(1)(C), which lapsed on Monday, August 9-i.e., 22 days before Father filed his appeal. (Code Civ. Proc., §§ 10 & 12a [deadline computation for holidays]; see Cal. Rules of Court, rule 8.104(e) [the term '"judgment' includes an appealable order if the appeal is from an appealable order"].)
We ordered the motion would be decided in conjunction with the appeal.
All dates in this section will be for the year 2021.
To refute application of the 180-day deadline, Father relies on rule 8.104(c)(2), which provides: "The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed; a written order prepared under rule 3.1312 [entitled "Preparation and submission of proposed order"] or similar local rule is not such an order prepared by direction of a minute order." (Italics added.) Based on the italicized language, Father contends the trial court's minute order in this case did not trigger the deadline because at the underlying hearing for the court's payment ruling, the court orally stated to Mother's counsel: "I will ask you to prepare an order after [the] hearing."
Notwithstanding the trial court's oral statement at the hearing, Father's point is unavailing because the court's minute order itself did not direct a written order to be prepared. In other words, given that the record shows the February 8 minute order was entered in the court's permanent minutes, applying the plain language of California Rules of Court, rule 8.104(c)(2), to the minute order means a 180-day deadline to appeal was triggered by the order. (See Hughey v. City of Hayward (1994) 24 Cal.App.4th 206, 208-209 [discussing plain language of predecessor rule]. It follows that Father's appeal from the court's payment ruling is untimely (see Cal. Rules of Court, rule 8.108(c) [even under deadline extension rules based on motions to vacate order, outer time limit remains "180 days after entry of judgment"]), and must be dismissed (ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 118 Cal.App.4th 1031, 1035).
Less than a week before oral argument, the parties filed letters attempting to present previously unbriefed case authorities. All of the opinions were available for the parties' earlier briefing and therefore cannot be relied upon now. (Cal. Rules of Court, rule 8.254(a); see Center for Healthcare Ed & Research, Inc. v. International Congress for Joint Reconstruction, Inc. (2020) 57 Cal.App.5th 1108, 1129, fn. 9.) In any case, we note none would alter our conclusions for the disposition of this appeal.
Mother's motion for dismissal is only partially correct, however, because Father's appeal from the trial court's August 4 denial of his motion to vacate the payment ruling was timely. The motion was based on Code of Civil Procedure section 473, subdivision (b), and, generally, "an appeal from an order refusing to vacate a judgment will lie when the record available to the appellate court on such appeal raises issues which are not disclosed or could not be disposed of on appeal from the judgment itself. [Citations.]" (Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 359.)
Stated alternatively, "the issues raised by the appeal from the order [refusing to vacate] must be different from those arising from an appeal from the judgment. [Citation.] 'The reason for this general rule is that to allow the appeal from [an order raising the same issues as those raised by the judgment] would have the effect of allowing two appeals from the same ruling and might in some cases permit circumvention of the time limitations for appealing from the judgment.' [Citation.]" (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651.) Applying Lakin here, Father's appeal from the court's August 4 denial of his motion to vacate the court's payment ruling was timely and not subject to dismissal to the extent it raises issues unique from those raised by the court's payment ruling. (Cal. Rules of Court, rule 8.104(a) [shortest "normal time" deadline is 60 days].) II. Father's Appeal From the Trial Court's August 4 Denial Order
Notwithstanding its timeliness, Father's challenge to the trial court's denial of his motion to vacate fails on the merits for its lack of adequate briefing. (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 [issue forfeited by failure to clearly identify in a heading, citing Cal. Rules of Court, rule 8.204(a)(1)(B)]; see Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 ["'The absence of cogent legal argument ... allows this court to treat the contention as waived"'].) We discern no reasoned discussion as to why we should conclude the trial court abused its considerable discretion on Father's motion to vacate.
DISPOSITION
Mother's motion to dismiss that was ordered to be decided with the appeal is granted in part. Father's appeal from the trial court's February 8, 2021, minute order and April 1, 2021, signed order is dismissed as untimely. The court's August 4, 2021, postjudgment order denying Father's motion to vacate is affirmed. Mother shall recover her costs on appeal.
WE CONCUR: BEDSWORTH, J., GOETHALS, J.