Opinion
B321253
07-31-2023
JAMES BONEBREAK, Plaintiff and Respondent, v. ZUOLIN CAO, Defendant and Appellant.
Zuolin Cao, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BD502983 Alexander C.D. Giza, Judge. Dismissed.
Zuolin Cao, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MORI, J.
Zuolin Cao purports to appeal from postjudgment orders denying her motions to reconsider an order directing her former spouse, James Bonebreak, to pay Cao $25,000 under a prior marital settlement agreement and dissolution judgment and a subsequent order imposing $1,000 in sanctions against Cao under Family Code section 271. Finding the appeal to be taken from nonappealable orders, we dismiss.
BACKGROUND
Bonebreak and Cao married in November 2000 and separated in January 2009. Following separation, the parties executed a 2009 marital settlement agreement providing for the division of community property. Under its terms, Bonebreak would receive sole ownership of a residence in North Hills, ownership of a flooring company, and other furnishings and inventory; Cao would receive sole ownership of a car, other furnishings, and "$130,000.00, which includes half of [the flooring company] inventory [¶] $60,000.00 at signing, and balance to be paid $10,000.00/month."
On January 28, 2010, the court entered a jointly executed dissolution judgment. The judgment awarded Bonebreak sole ownership of the North Hills home and various furnishings, and Cao sole ownership of a car. The judgment did not equalize division of community property, but confirmed as Bonebreak's sole property various furnishings and business receivables totaling $29,000; and as Cao's sole property cash in the amount of $130,000.00.
More than 10 years after the dissolution judgment, on February 16, 2021, Cao filed a request for order (RFO) "to execute the [2009 marital settlement agreement] which is also confirmed by the [2010 dissolution judgment]." Cao argued under the agreement and judgment that Bonebreak was to pay her $130,000 with $60,000 at signing and $10,000 every month on the remaining balance, which Cao alleged was not paid on time or in full. Cao estimated an outstanding amount of "$67,658.86 that should be paid in 10 days with a lien on the property." Cao also sought an order removing her name from a mortgage on the North Hills home.
In a written opposition, Bonebreak argued that Cao's RFO was procedurally and substantively defective, and it was "difficult to decipher what relief" she requested. To the extent Cao requested additional money, Bonebreak argued there was only one judgment, entered on January 28, 2010, imposing an amount owed to Cao. Cao's "request that she be paid any sum by [Bonebreak] is not properly before the Court, nor has she met her burden in [sic] establishing that any sums are actually owed to her" by Bonebreak.
Following a hearing on Cao's RFO April 20, 2021, the court ordered Cao's name removed from the mortgage. After finding insufficient evidence to rule on Cao's request for additional money, the court set the matter for an evidentiary hearing on July 21, 2021.
Both parties submitted exhibit lists prior to the hearing on July 21, 2021. At the hearing, the parties testified and presented argument on the amount of money Bonebreak owed Cao. A minute order filed the same day showed that the court ordered Bonebreak to pay Cao $25,000.00 by September 21, 2021, and ordered his counsel to prepare a final order after hearing. A final order after the hearing of July 21, 2021, appears to have been signed on August 23, 2021.
The notice designating the record on appeal did not identify the final order after hearing, and the order does not appear on the Case Summary. What appears to be a conformed copy of the final order is in the appellate record as an attachment to a declaration by Bonebreak's trial counsel, served on July 26, 2022, in support of an opposition to the reconsideration motion Cao filed on November 16, 2021. A proof of service indicated service on Cao of the proposed final order after hearing on July 27, 2021. (See Cal. Rules of Court, rule 5.125(b) [within 10 calendar days of court hearing, the party ordered to prepare the proposed order must serve the order on the other party for approval].) Subsequent references to rules are to the California Rules of Court.
On August 6, 2021, Cao filed her first motion for reconsideration, requesting that the court reconsider its ruling of July 21, 2021, regarding the amount Bonebreak owed under the marital settlement agreement and dissolution judgment.
During a hearing on Cao's first reconsideration motion on November 11, 2021, the court informed Cao that she had not provided "any additional evidence regarding the issue that was addressed on July 21st." The court summarized Bonebreak's written opposition as arguing that Cao's request did not use the mandatory family law form (FL-300; see Rule 5.90, 5.92(a)(1)(B)), and was not based on new or different facts. The court agreed with both arguments. The court stated: "I don't find that there's new evidence. Respondent is unhappy with the court's order. And that's not the basis for reconsideration." The court referenced its prior hearing on July 21, 2021, in which it found "conflicting evidence. The documents were vague or there was a lack of evidence relating to the amounts that were due between the parties and when they were due or the amounts vested." Following the hearing the same day, the court issued a minute order denying Cao's first reconsideration motion "as improper format."
Cao has not furnished a reporter's transcripts of the underlying proceedings. However, the reporter's transcript of the hearing on November 11, 2021, was also attached to the declaration by Bonebreak's trial counsel in support of his opposition to Cao's reconsideration motion filed November 16, 2021.
On November 16, 2021, Cao filed her second motion for reconsideration, again seeking reconsideration of the court's ruling of July 21, 2021. Cao contended in her second reconsideration motion that Bonebreak owed her a total of $285,018.24 as computed by principal and interest owing under the marital settlement agreement and dissolution judgment, and as based on increased property value of the North Hills residence. Cao sought interest on this amount and monetary sanctions against Bonebreak and his attorney.
At a hearing on February 8, 2022, the court denied Cao's second reconsideration motion. By minute order and notice of entry of order served on the parties the same day, the court ordered Cao to pay $1,000 in sanctions pursuant to Family Code section 271 and Code of Civil Procedure section 177.5.
Cao filed her third motion for reconsideration on February 22, 2022, this time seeking reconsideration of the sanctions ordered on February 8, 2022. In her motion, Cao argued she had not engaged in sanctionable conduct, and that the order would cause her financial hardship.
On March 4, 2022, the court entered a final order after hearing on Cao's first reconsideration motion. The final order, which was submitted by Bonebreak with a proof of service verifying prior service on Cao on November 11, 2021, provided that Cao's motion was denied as procedurally improper and based on the absence of new facts.
In an RFO filed March 9, 2022, Cao argued that Bonebreak had violated Rule 5.125 by secretly filing the proposed final order after hearing without providing her notice. (See Rule 5.125(b).) The court denied the RFO the same day, indicating that it was in substance a procedurally improper ex parte application that lacked exigent circumstances. The court notified the parties of its ruling via email.
On April 11, 2022, the court held a hearing on Cao's third reconsideration motion. As provided in a minute order filed the same day, the court found service of the motion to be improper, but as Bonebreak did not challenge service, the court considered the motion on the merits. The court denied a reduction in sanctions but clarified by an order nunc pro tunc that the "sanctions were pursuant to Family Code Section 271 only and not Code of Civil Procedure Section 177.5. The $1000 order for sanctions is payable from [Cao] directly to [Bonebreak] at the rate of $100 per month commencing on May 1, 2022, ...." The minute order expressly stated that it "serves as the Order After Hearing."
On April 29, 2022, the court filed a final order after hearing on Cao's second reconsideration motion. The court found the efforts of Cao "to relitigate or attempt to relitigate" fully litigated claims to be "improper and [] disallowed." The court also found that Cao had improperly filed her reconsideration motion in violation of Family Code section 271, warranting $1,000 in monetary sanctions.
An attached proof of service verified that Cao had been served with the proposed final order after hearing more than two months before the court signed it.
Cao filed her notice of appeal on May 3, 2022. As provided in that notice and the civil case information statement she filed with this court, Cao purports to appeal from the following orders:
(1) The final order after hearing, filed March 4, 2022, relating to the hearing on November 10, 2021, on Cao's first reconsideration motion;
(2) The final order after hearing, filed April 29, 2022, relating to the hearing on February 8, 2022, on Cao's second reconsideration motion; and
(3) The minute order of April 11, 2022, denying Cao's third reconsideration motion.
DISCUSSION
Cao has filed an appeal from the court's orders denying her three reconsideration motions. We must dismiss her appeal.
"[W]e have an independent obligation in this as in every matter to confirm whether jurisdiction exists." (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 252.) "The existence of an appealable order or judgment is a jurisdictional prerequisite to an appeal." (Kirk v. Ratner (2022) 74 Cal.App.5th 1052, 1060 (Kirk); see Griset v. Fair Political Practices Com'n (2001) 25 Cal.4th 688, 696 ["[a] reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment"].) Appeals taken from nonappealable orders must be dismissed. (Baker v. Castaldi (2015) 235 Cal.App.4th 218, 226.)
We must dismiss Cao's appeal because the orders from which she appealed-orders denying her motions for reconsideration-are not independently appealable. (Coastline JX Holdings LLC v. Bennett (2022) 80 Cal.App.5th 985, 1016; see Fleur du Lac Estates. Assn. v. Mansouri (2012) 205 Cal.App.4th 249, 255 (Mansouri) ["'[s]ection 904.1 of the Code of Civil Procedure does not authorize appeals from such orders'"]; see also Code Civ. Proc., § 1008, subd. (g) [order denying motion for reconsideration "is not separately appealable"].) "'[T]o hold otherwise would permit, in effect, two appeals for every appealable decision and promote the manipulation of the time allowed for an appeal.'" (Mansouri, supra, at p. 255; see Morton v. Wagner (2007) 156 Cal.App.4th 963, 967 ["[c]are must be taken in drafting the notice of appeal to identify the order or judgment being appealed so as not to mislead or prejudice the respondent"].) Cao's notice of appeal specifically identifies the orders denying her motions for reconsideration as the orders from which she appeals. Because those are nonappealable, Cao's appeal must be dismissed.
Even if we construed Cao's appeal as having been taken from the rulings that were subject to her motions for reconsideration, we do not have an adequate appellate brief and record to permit meaningful review. It is axiomatic that a judgment is presumed correct, and an appellant must affirmatively demonstrate error in the proceedings below by an adequate record. (See Rule 8.120(a) &(b), 8.140(b)(1); Hotels Nevada, LLC. v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.) The appellant must summarize all significant evidence in the record (and only in the record) with appropriate citations and must support his or her contentions with citations to legal authority. (Rule 8.204(a)(1)(C), 8.204(a)(2)(C); Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) An appellant's failure to present a complete and accurate evidentiary record supporting cogent legal argument forfeits his or her arguments on appeal. (Lee v. Kim (2019) 41 Cal.App.5th 705, 721; Foust v. San Jose Const. Co., Inc. (2011) 198 Cal.App.4th 181, 187 (Foust); Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 (Wagner).) These principles apply with equal force to self-represented litigants. (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574 (Kroutik) ["[a] selfrepresented party is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants"].)
Here, Cao purports to challenge the trial court's rulings following hearings on July 21, 2021 (Cao's initial RFO), November 11, 2021 (first reconsideration motion), February 8, 2022 (second reconsideration motion), and April 11, 2022 (third reconsideration motion). However, the clerk's transcript does not contain complete briefing of the RFO or of Cao's motions for reconsideration. The transcript lacks briefs and evidence proffered by Bonebreak below. In addition, these proceedings were reported by a certified court reporter. In Cao's notice designating the record on appeal, she checked the box which stated that she elected to proceed "WITHOUT a record of the oral proceedings . . . in the superior court. I understand that without a record of the oral proceedings . . ., the Court of Appeal will not be able to consider what was said during those proceedings in deciding whether an error was made in the superior court proceedings." With one exception-the November 2021 hearing on Cao's first reconsideration motion-the appellate record contains no reporter's transcripts (or suitable substitutes) from the hearings.
The record only contains Bonebreak's opposition to the initial RFO and an opposition to Cao's second motion for reconsideration.
On this limited record, we cannot resolve Cao's appellate contentions. (Accord, Foust, supra, 198 Cal.App.4th at pp. 186-187 [listing similar circumstances in which "appellate courts have refused to reach the merits of an appellant's claims because no reporter's transcript of a pertinent proceeding or a suitable substitute was provided"]; Kroutik, supra, 247 Cal.App.4th at p. 576 ["by knowingly forgoing the preparation of a reporter's transcript or a settled statement, [appellant] made success on appeal unattainable"].) This limited record precludes Cao from relying on any errors occurring at the initial RFO hearing or at hearings on her reconsideration motions, which included the imposition of sanctions. (See, e.g., Rule 8.163; Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [declining to review appellate contentions absent a reporter's transcript or settled statement of the relevant trial proceedings]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447-448 ["[t]he absence of a record concerning what actually occurred at the trial precludes a determination that the trial court abused its discretion"].)
Cao's appellate contentions are also unsupported by sufficient reasoned argument and citations to relevant legal authority. (Rule 8.204(a)(1)(B) [appellate briefs must state "each point under a separate heading . . . and support each point by argument and, if possible, by citation of authority"]; see Vines v. O'Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174, 190 [review by appellate court is "limited to issues that have been adequately raised and supported"]; County of Sacramento v. Singh (2021) 65 Cal.App.5th 858, 861 [treating as forfeited any "point that is not supported by cogent legal argument"].) The authorities on which Cao purports to rely are Rule 5.125(f) and various canons of the Code of Judicial Conduct prescribing judicial officer integrity, independence, fairness, and impartiality. Cao does not present sufficient evidence or legal argument to show how the trial court violated any of these rules or canons.
Rule 5.125(f) provides that before signing a proposed order "without the other party's approval, the court must first compare the proposed order after hearing to the minute order; official transcript, if available; or other court record." Cao argues that because several orders after hearing include findings beyond those listed in the minute orders, the trial court must have violated Rule 5.125(f). However, Rule 5.125(f) contemplates the court's ability to compare any official transcript or "other court record" beyond the related minute order. Without transcripts of the relevant hearings, this court cannot independently compare the orders after hearing to determine if the trial court abused its discretion.
The only reporter's transcript appearing in the record, taken of the hearing on Cao's second motion for reconsideration, supports the court's order. At various points in the hearing, the court stated that it was denying Cao's motion based on the absence of "any additional evidence regarding the issue that was addressed on July 21st."
We can only presume that the trial court properly discharged its official duty in accordance with Rule 5.125(f). (Kroutik, supra, 247 Cal.App.4th at p. 575 [if invalidity does not appear on the face of appellate record, we presume "'that what ought to have been done was not only done but rightly done'"].)
To the extent Cao asserts that the trial court exhibited bias by finding Bonebreak and his trial counsel more credible, finding their evidence more persuasive, and making findings adverse to her, Cao does not show it acted outside the normal function of a trial court in considering, weighing, and issuing findings based on its view of the evidence. "The mere fact that the trial court issued rulings adverse to [Cao] on several matters in this case, even assuming one or more of those rulings were erroneous, does not indicate an appearance of bias, much less demonstrate actual bias." (Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 674.) Nor has Cao demonstrated how any violation of the judicial canons constitutes reversible error. (See Adams v. Commission on Judicial Performance (1994) 8 Cal.4th 630, 661-662 [the canons of the Code of Judicial Conduct "do not have the force of law or regulation" but reflect a judicial consensus regarding appropriate behavior].)
In sum, we conclude that Cao has appealed from nonappealable orders. Even construing Cao's appeal as having been taken from potentially appealable rulings, we conclude that we have not been provided with an adequate record and appellate briefs to permit meaningful review.
DISPOSITION
The appeal is dismissed.
We concur: COLLINS, Acting P. J. ZUKIN, J.