Opinion
G058871 G059106
03-15-2021
In re Marriage of DAVID CANTARELLA and RUTH HERRERA. DAVID CANTARELLA, Appellant, v. RUTH HERRERA, Respondent.
David Cantarella, in pro. per., for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 06D006157) OPINION Appeals from postjudgment orders of the Superior Court of Orange County, Claudia Silbar, Judge. Dismissed. David Cantarella, in pro. per., for Appellant. No appearance for Respondent.
Appellant David Cantarella (father), a vexatious litigant, appeals from orders regarding custody of his minor child (child) with respondent Ruth Herrera (mother). Father contends the trial court erred by refusing to order a custody evaluation by a court-appointed expert under Evidence Code section 730. He also requests an order assigning this case to a different judge on remand.
We dismiss the appeals as untimely because they arise from minute orders entered more than a year before father's notices of appeal were filed.
FACTS AND PROCEDURAL HISTORY
This is the fourth separate opinion of this court generated in this case. Our prior opinions decided multiple consolidated appeals. Counting by case numbers or by notices of appeal, father has now raised issues in this case to this court at least 12 times, not counting matters dismissed before an opinion was issued.
The background facts are set forth in our earlier opinion (In re Marriage of Cantarella and Herrera (Nov. 23, 2020, G057197, G058304, G058332, G058413, G058383, G058484) [nonpub.opn.]) and are not repeated here.
At hearings on December 6, 2018 and February 6, 2019, father asked the court to appoint an expert to conduct a "custody evaluation" of child under Evidence Code section 730. Father also made the same request in writing in advance of the February 6, 2019 hearing. At the February 6, 2019 hearing, the trial court declined to appoint an expert, in part because the parties could not afford one.
The record appears to reflect two subsequent court orders, both dated January 17, 2020. The first order arose from the December 6, 2018 hearing, but the second order appears to have arisen from an unrelated January 23, 2019 hearing. The record also includes an unrelated court order dated September 18, 2020 dealing with child support.
Father filed two notices of appeal, dated February 11, 2020 and March 16, 2020, both purporting to appeal from a judgment entered January 17, 2020.
DISCUSSION
Father's opening brief discusses orders dated December 6, 2018 and January 23, 2019. The only notices of appeal in the record are dated February 11, 2020 and March 16, 2020. Thus, if father's characterization of his appeals is correct, they are untimely because California Rules of Court, rule 8.104(a)(1)(C) requires a notice of appeal to be filed, at the latest, 180 days after entry of an appealable order.
But it appears father's characterization of his appeals is incomplete. While the record reflects the existence of hearings on December 6, 2018 and January 23, 2019, and while minute orders were generated on those dates, formalized orders reflecting the results of those hearings were only entered on January 17, 2020. Thus, the dispositive question is whether father's time to appeal ran from the December 6, 2018 and January 23, 2019 minute orders or from the January 17, 2020 formal orders.
California Rules of Court, rule 8.104(c)(2) controls this question: "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 or similar local rule is not such an order prepared by direction of a minute order." Thus, the fact that a separate formal order was subsequently prepared and filed is irrelevant unless the minute order itself expressly calls for the preparation of a formal order. (In re Marriage of Adams (1987) 188 Cal.App.3d 683, 689.)
The December 6, 2018 minute order does not direct preparation of a written order. Accordingly, father's appeal from that minute order is untimely and we dismiss it. The January 23, 2019 order requires counsel to prepare a temporary order. But the court signed and entered an order the same day, as the minute order discusses. On our own motion, we take judicial notice of that order. Father's appeal from the January 23, 2019 order is thus also untimely and we dismiss it.
DISPOSITION
The appeals are dismissed.
No costs are awarded, as no appearance was made on behalf of respondent.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.