Opinion
G044435
01-06-2012
PETER MICHAELS, Petitioner, v. PEGGY TURK, Respondent.
J. Scott Bennett for Petitioner. Peggy Turk, in pro. per., for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 06P000504)
OPINION
Appeal from an order of the Superior Court of Orange County, Richard G. Vogl, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
J. Scott Bennett for Petitioner.
Peggy Turk, in pro. per., for Respondent.
Petitioner Peter Michaels appeals from the court's June 21, 2010 order denying petitioner's request to restore, to the court's calendar, his June 6, 2008 order to show cause (OSC) seeking to modify his child support obligation to respondent Peggy Turk for their son. We affirm the court's order.
According to his notice of appeal, petitioner appeals from the court's September 8, 2010 order denying his motion for reconsideration of the court's June 21, 2010 order. However, the majority view, with which we concur, is that a denial of a motion for reconsideration is not appealable. (Tate v. Wilburn (2010) 184 Cal.App.4th 150, 158-159; Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1575.) Nonetheless, we deem petitioner's appeal to be from the June 21, 2010 order (as requested in his opening brief), which order is appealable as a post judgment order under Code of Civil Procedure section 904.1, subdivision (a)(2). (An Oct. 2006 judgment required petitioner to pay child support to respondent for their son.)
FACTS
On June 6, 2008, petitioner filed an OSC to modify his monthly child support obligation of $2,500.
After multiple continuances, the matter came on for hearing on May 4, 2009. Petitioner requested a continuance because he had not received certain discovery from respondent and because he needed time to retain an attorney. Commissioner Craig E. Arthur denied petitioner's continuance motion. But Commissioner Arthur gave petitioner the choice of: (1) proceeding on the June 2008 OSC as scheduled, or (2) taking the OSC off calendar, subject to it being restored with "the same retroactivity" if petitioner filed a motion to restore it to the court calendar within 90 days. Petitioner chose to have the June 2008 OSC taken off calendar, subject to restoration. Accordingly, on May 4, 2009, the court declared a mistrial and, at "[p]etitioner's request," ordered the June 2008 OSC to be taken off calendar subject to its restoration upon petitioner's filing of a motion within 90 days.
The 90th day of the restoration grace period fell on a Sunday, August 2, 2009. Accordingly, the last day on which petitioner could file a motion and maintain his claimed retroactivity was the following day, Monday, August 3, 2009. (See Code of Civ. Proc., §§ 12a ["If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday"], 135 ["Every full day designated as a holiday by Section 6700 of the Government code . . . is a judicial holiday"]; Gov. Code, § 6700 [Every Sunday is a holiday].)
On August 4, 2009, Petitioner filed an OSC seeking to restore his June 2008 OSC to the court's calendar and to hear the underlying OSC to modify child support (the restoration OSC). Thus, he filed his restoration OSC one day after the expiration of the 90-day restoration grace period provided by the court. A hearing date of October 15, 2009, was set to hear petitioner's restoration and modification request.
Quite unbelievably, the August 2009 restoration OSC was not ruled upon until June 21, 2010, not because it was set for hearing that day, but because the issue came up in a status conference. The nature of the proceeding before the court on June 21 is not altogether clear, as no minute order appears in the record, nor does the docket reflect any minute order having been prepared on that date. We do have a reporter's transcript of a hearing on April 12 in which a status conference date of June 21 was set, along with an order signed by the court (by now Comm. Richard G. Vogl) titled "Tentative Decision of the Court on Submitted Matter," which recited a tortured history of the proceedings in this case.
The "Tentative Decision of the Court on Submitted Matter" also contained the following recitation as it relates to the status of the June 2008 OSC: "The child support modification issue came on regularly before Comm. Arthur on May 4, 2009, and as to that OSC, the court ordered the matter off calendar subject to a restoration upon filing of a motion within 90 days. [¶] Ninety days from May 4, 2009 would be August 4, 2009. On August 4, 2009, Petitioner did file a request to modify the child support.The matter was set for hearing for October 15. [¶] But on October 15, 2009, no order was made for child support. It would seem, therefore, that after Oct. 15, 2009, the child support issue was not pending." The "Tentative Decision of the Court on Submitted Matter" concluded, "This is not a final ruling."
As noted above, the 90th day was actually August 2, which, because it fell on a Sunday, was extended by law to August 3.
The OSC also requested the restoration of the June 2008 OSC to the calendar.
This was undoubtedly true because at a contempt hearing scheduled for August 14, 2009, Commissioner Arthur had advanced the hearing on the August 4 OSC to October 13. The appellate record does not contain any information about what happened on October 13. It is nevertheless the case that the court did not rule on either the request to restore the June 2008 OSC or the underlying modification request in October.
At the June 21, 2010 status conference, Commissioner Vogl made the order that petitioner challenges in this appeal. Commissioner Vogl found the issue of modification was not pending, either pursuant to the June 2008 OSC, or the August 2009 restoration OSC; there was no OSC concerning modification on the calendar.Commissioner Vogl noted that Commissioner Arthur had not prepared any final order on the August 2009 OSC.
In his April 2009 tentative ruling, Commissioner Vogl had stated August 4, 2009 was the 90th day of the refiling period. But at the hearing, Commissioner Vogl explained he had not used a calendar and had "shot from the hip," whereas the County of Orange had "pulled the calendar and counted the number of days."
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DISCUSSION
As petitioner's sole argument on appeal, he asserts he filed his August 4, 2009 OSC "within the permitted 90 day period." He correctly notes Code of Civil Procedure section 12 provides: "The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded." When the days are counted in that fashion, the 90th day falls on Sunday, August 2, 2009. Accordingly, the law permitted Petitioner to file his request on the next court day, August 3, 2009. (Code Civ. Proc., § 12a.) Petitioner asserts he tried to file his OSC on August 3, 2009, but the pertinent court department was closed. But his record reference for this assertion is only the argument of his counsel. He cites no evidence of that fact, and none appears in the appellate record. Even if that were true, there is no explanation of why he could not have filed his papers with the counter clerk. And even if the filing counter was closed on a regular court day (which we doubt), rule 2.210 of the California Rules of Court requires the clerk's office to provide a drop box for filing between 8:30 a.m. and 4:00 p.m. and that documents deposited in the drop box up to and including 4:00 p.m. are deemed deposited for filing on that day. Petitioner cites Code of Civil Procedure section 12b, which defines "holiday" to include a day when a "city, county, state, or public office, other than a branch office, is closed for the whole of any day," and argues that the department being dark when he attempted to file means it was a court holiday. Nonsense. There is no evidence that either the department, or the clerk's counter, was "closed for the whole of [the] day."
At bottom, when petitioner appeared on May 4, 2009, for the hearing on his modification OSC, he was not prepared to proceed, despite the matter having been pending for nearly one year. The court, in an apparent act of mercy, not compelled by any law of which we are aware, ruled that petitioner could restore his OSC to the court's calendar by renoticing it within 90 days. Petitioner simply failed timely to take advantage of the court's mercy. The court correctly found petitioner failed to restore his June 2008 OSC to the court calendar within the 90-day period established by Commissioner Arthur's May 4, 2009 order.
DISPOSITION
The order is affirmed. Respondent is entitled to her costs on appeal.
IKOLA, J.
WE CONCUR:
ARONSON, ACTING P. J.
FYBEL, J.