Opinion
G060882
12-09-2022
In re Marriage of TRUNG PHUONG and HANH THI NGUYEN. v. HANH THI NGUYEN, Appellant. TRUNG PHUONG NGUYEN, Respondent,
Hanh Thi Nguyen, in pro. per., for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 21D002032 Barry S. Michaelson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Hanh Thi Nguyen, in pro. per., for Appellant.
No appearance for Respondent.
OPINION
MOORE, ACTING P. J.
Appellant Hanh Thi Nguyen, representing herself, appeals from an order granting her former husband a default judgment dissolving their marriage. Although Nguyen attempts to raise many issues, most of them are outside the scope of the default judgment and/or the record. The only matter we can review is whether the default judgment was properly granted based on the record. We conclude the court did not err in granting the default judgment, and therefore, we affirm the judgment.
I
FACTS
Nguyen's husband, respondent Trung Phuong Nguyen (Trung) filed the instant marital dissolution action on April 2, 2021. On May 18, Nguyen wrote a letter to the court (which was filed on June 1) stating that she was the petitioner in a dissolution action filed in Fairfax County, Virginia. Nguyen attached what she stated was the petition in the Virginia dissolution action, but it was not file stamped or date stamped. She also included what appeared to be an e-mail message stating that an unspecified hearing was scheduled for May 21. In the letter, Nguyen requested transfer of the California case to Virginia. Nguyen's letter also stated she had been aware of the California dissolution matter since May 18.
Due to the shared surname, we refer to Trung by his first name. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1.)
On June 10, Trung filed a proof of service as to Nguyen in the California dissolution action, stating she had been served by certified mail. A certified return receipt, dated April 29, was included. On the same date, Trung asked the court to enter a default judgment and filed related documents. On June 30, the court entered the default judgment. The judgment stated there were no assets or debts to divide, terminated jurisdiction as to spousal support, and ordered each party was to bear their own attorney fees and costs. Notice of entry of judgment was mailed by the clerk to Nguyen's Virginia address on July 12.
On July 19, Nguyen filed a motion to vacate or set aside the judgment. Nguyen claimed in her points and authorities that she lacked actual notice and had not received any document relating to the California dissolution action prior to receiving the notice of entry of judgment. A hearing on her motion was set for October 29.
Numerous other documents were filed that are not of import to this appeal. On September 24, Trung filed a response to the request to set aside the judgment, seeking $1,584 in sanctions against Nguyen. Nguyen filed a document that stated she opposed the contents of Trung's opposition.
On October 29, the court ordered the motion to set aside the default off calendar "pursuant to the written request of the respondent [Nguyen], dated 9/24/2021." Trung also apparently asked that his request for sanctions be taken off calendar, which the court granted. The request itself is not in the record, but there is a two-page "Request - Other" listed in the register of actions.
On November 2, 2021, Nguyen filed a notice of appeal.
II
DISCUSSION
When considering an appeal, this court begins with the presumption that an order of the trial court is presumed correct; therefore, the appellant must affirmatively show reversible error by an adequate record. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.)
Opening briefs must" (A) [s]tate the nature of the action, the relief sought in the trial court, and the judgment or order appealed from; [¶] (B) State that the judgment appealed from is final, or explain why the order appealed from is appealable; and [¶] (C) Provide a summary of the significant facts limited to matters in the record." (Cal. Rules of Court, rule 8.204 (a)(2), italics added.)
Subsequent references to rules are to the California Rules of Court.
Nguyen does not clearly state what appealable judgment or order she wishes to appeal. Her brief states she "request[s] a review of the decision to remove the entire content of the final ruling, the content of the decision issued by the Superior Court of California, County of Orange . . . has been issued." It also states she "appeal[s] against all contents of the 'Minute Order' issued on October 29, 2021, by a judge."
We have no jurisdiction to review a minute order taking a matter off calendar. We can only review judgments or one of the orders enumerated in Code of Civil Procedure section 904.1, which does not include an order taking a matter off calendar. The only appealable judgment or order, as best we can determine, is the final judgment in this case, which was the default judgment issued on June 30, 2021.
Further, we cannot review matters outside the record, and Nguyen's brief raises many such matters. Indeed, most of her brief is addressed to such issues. "We cannot address matters that are outside of the record on appeal or issues that do not arise from the portion of the litigation underlying the appeal in question." (Kinney v. Overton (2007) 153 Cal.App.4th 482, 485.)
Further, our scope of review is limited to issues that have been adequately raised and are supported by analysis. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) The same procedural rules apply to self-represented litigants as to parties represented by attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.) While we have done our best to understand Nguyen's arguments, due to the significant and repeated violations of the California Rules of Court in her brief, we deem waived any issue that was not properly briefed. (See rule 8.204(a)(1)(B), (C); Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768; Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 108-109; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
The only issue we can review is whether the default judgment was properly granted. The record reflects that Trung's dissolution petition was filed on April 2. He later provided a certified mail receipt, dated April 29, with a signature that bears Nguyen's name. Trung's attorney later submitted a declaration executed under penalty of perjury that stated that on April 4, she caused the summons and petition to be served on Nguyen by certified mail, return receipt requested, at her address in Virginia. The return receipt was executed on or about April 28 and the proof of service, signed by a nonparty, was filed on June 10. Nguyen informed the court the address she was served at was correct.
There is some question about the timeliness of the appeal. While rule 8.108(c) extends the time to appeal when a motion to vacate default is filed, it offers no guidance when a proper motion is filed but later taken off calendar by the same party. But case law acknowledges a "well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases 'when such can be accomplished without doing violence to applicable rules.' [Citation.] [T]here are many cases in which this policy, implemented in accordance with 'applicable rules,' will lead to a determination, based on construction and interpretation, that timely and proper notice of appeal must be deemed in law to have been filed within the jurisdictional period." (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674; see Garg v. Garg (2022) 82 Cal.App. 5th 1036, 1050.) Accordingly, we deem the applicable deadline to be 180 days after entry of judgment, in accordance with rule 8.108(c)(3). Nguyen filed her appeal within that time frame.
In addition to Trung's attorney's declaration and the documentary evidence, there was no question that by no later than May 18, the date of her letter to the court, that Nguyen had actual knowledge of the California dissolution case. The letter itself states as much. Accordingly, in addition to service, she unquestionably had actual notice several weeks before default was entered, and she therefore had time to file responsive papers to avoid default.
The letter to the court was not a proper motion, and there were no grounds for treating it as such. Further - the most important claim in her letter, that the V irginia dissolution action was filed first - was not supported by evidence. While Nguyen included a copy of the petition and an e-mail that informed her of an unspecified type of hearing, the petition did not include a date stamp indicating the date it was filed.
Further, Trung's June 10 request for default was procedurally proper and without any obvious defects. The court entered the judgment on June 30. The judgment indicated the court found there was no property or debts to divide and ordered each party to bear their own fees and costs. Notice of entry of judgment was properly served by the clerk on July 12.
In sum, we find no fault with the court's actions here. The deadlines were observed, the proper paperwork was filed, and the court made the appropriate findings. Nor do we find that any gross unfairness or prejudice to Nguyen occurred by ordering the dissolution. Nguyen has not carried her burden on appeal to establish error. (Osgood v. Landon, supra, 127 Cal.App.4th at p. 435.)
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: SANCHEZ, J. MOTOIKE, J.