Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK62803. Marilyn H. Mackel, Juvenile Court Referee.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of County Counsel, James M. Owens, Assistant County Counsel, Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
BOREN, P.J.
Appellant father, Robert C., appeals following the February 20, 2009, termination of his parental rights. (Welf. & Inst. Code, §366.26.) Appellant contends that the juvenile court lacked sufficient evidence to issue its January 5, 2009, restraining order (§ 213.5) because of the purported absence of any threat to the children or caregivers, and that his trial attorney was unprepared and failed to provide effective assistance of counsel at the hearing on the restraining order. Respondent Department of Children and Family Services (DCFS) argues that appellant’s notice of appeal is fatally insufficient because he did not appeal from the restraining order and that, in any event, the contentions are without merit.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
We find that appellant’s appeal seeking to challenge the restraining order, which was “directly appealable” in its own right (In re Cassandra B. (2004) 125 Cal. App.4th 199, 208), must be dismissed because appellant never appealed from that order. Rather, on February 24, 2009, appellant filed a notice of appeal only from the order of “termination of parental rights on 2/20/09.” The notice of appeal is silent about the separate and distinct restraining order filed January 5, 2009, which expires by its terms after one year, and which is the only focus of appellant’s complaints in the present appeal.
“The notice of appeal must be liberally construed, and is sufficient if it identifies the particular judgment or order being appealed.” (Cal. Rules of Court, rule 8.400(c)(2).) As reflected in the first part of the above quoted rule, “It is axiomatic that notices of appeal will be liberally construed to implement the strong public policy favoring the hearing of appeals on the merits.” (Norco Delivery Service, Inc. v. Owens Corning Fiberglas, Inc. (1998) 64 Cal. App.4th 955, 960.) “‘[N]otices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’” (D’Avola v. Anderson (1996) 47 Cal. App.4th 358, 361.)
Thus, for example, appellant attempts to rely on Norco Delivery Service, Inc. v. Owens Corning Fiberglas, Inc., supra, 64 Cal. App.4th at pages 960-961, where the appellate court construed a notice of appeal as being from a different order than the order specified in the notice. However, in that case one party’s motion to contest good faith was simply the mirror image of the other party’s application for a determination of good faith, and both motions raised the exact same issue of whether the settlement was in good faith, thus warranting the court’s liberal construction of the notice of appeal to apply to the order actually complained of on appeal. The present case is readily distinguishable because the two orders and the fundamental issues at stake in them are not at all similar. The order terminating parental rights is vastly different from the restraining order, which is the object of appellant’s intended appeal.
Also unavailing is appellant’s reliance on In re Jeremy W. (1992) 3 Cal. App.4th 1407, 1413, footnote 9. In that case, DCFS argued that the appeal was from the court’s order terminating parental rights, and not from the order denying a section 388 hearing. The Court of Appeal reasoned, in pertinent part, that although writ review would ordinarily permit an earlier resolution of section 388 issues, “In light of the circumstances where [the parent] timely sought review in the manner explicitly advised by the juvenile court, we reject this technical argument.” (Ibid.) No such misdirection by the court occurred here.
The applicable rule was explained long ago by the Supreme Court in Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 91-92, and its reasoning is instructive here: “[T]hat portion of the judgment denying the appellants a lien, and which is attacked by the plaintiffs in their brief herein, is not properly a subject of review upon this appeal because of the insufficiency of the notice of appeal. The notice states that the appeal is ‘from so much of the judgment herein as denies relief to the plaintiffs against the said defendant, Clotilde G. Castruccio... ’ The notice of appeal makes no mention of that separate and distinct portion of the judgment denying plaintiffs a lien. It is elementary that an appeal from a portion of a judgment brings up for review only that portion designated in the notice of appeal. [Citation.] While it is true that notices of appeal are to be liberally construed with a view to hearing causes on their merits [citation], we are of the opinion that the notice filed in the present case does not present ‘a mere misdescription’ of the judgment, calling for the application of said rule, but rather... that portion of the judgment appealed from is so clear and unmistakable as to preclude a description of that portion of the judgment denying appellants a lien.” (See also Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal. App.4th 612, 624-625 [notice of appeal unambiguously specified appeal from nonsuit as to some but not all causes action at issue and thus was ineffective to cover all causes of action complained of]; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d35, 46 [notice of appeal specified only the judgment and was silent about postjudgment award of attorney fees, which was separately appealable]; Dimity v. Dixon (1925) 74 Cal.App. 714, 718 [unmistakable description of one judgment precluded review of another judgment].)
As explained in Norman I. Krug Real Estate Investments, Inc. v. Praszker, supra, 220 Cal.App.3dat page 47: “The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders.” In the present case, appellant’s notice of appeal is not in the least ambiguous. It specifically states an intention to appeal from the “termination of parental rights on 2/20/09.” It mentions or implies nothing regarding the restraining order of January 5, 2009.
The portion of the judgment appealed from is, in the words of the Supreme Court, “clear and unmistakable.” (Glassco v. El Sereno Country Club, Inc., supra, 217 Cal. at p. 92.) Appellant’s notice of appeal unambiguously refers to something else and fails to “identif[y] the particular judgment or order being appealed.” (Cal. Rules of Court, rule 8.400(c)(2).) As a result, we are without authority to liberally construe the notice of appeal, and we lack jurisdiction to review the restraining order.
DISPOSITION
The appeal is dismissed.
We concur: DOI TODD, J., ASHMANN-GERST, J.