Opinion
F085663
04-23-2024
CONNIE HERNANDEZ, Plaintiff and Respondent, v. OCTAVIO MENDOZA LOPEZ, Defendant and Appellant.
Octavio Mendoza Lopez, in pro. per., for Defendant and Appellant. Connie Hernandez, in pro. per., for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 21FL-00958. David A. Foster, Judge.
Octavio Mendoza Lopez, in pro. per., for Defendant and Appellant.
Connie Hernandez, in pro. per., for Plaintiff and Respondent.
OPINION
THE COURT [*]
This appeal is the third appeal brought by appellant Octavio Mendoza Lopez to this court involving the same parties. In the first appeal, (Hernandez v. Mendoza (Dec. 8, 2022, F083011) [nonpub. opn.], mod. on Dec. 28, 2022), we affirmed the issuance of a protective order, which is again the subject of this appeal. In the second appeal, appellant sought to obtain a guardianship over the child of one of the individuals protected by the protective order. (Lopez v. Hernandez, et al. (Jan. 19, 2022, F083167) [nonpub. opn.].) In this third matter, appellant seeks to have the protective order, which again was affirmed in the first appeal, vacated or dismissed. Because we conclude appellant failed to properly preserve his right to appeal the trial court's denial of his petition to terminate the protective order, we must dismiss this appeal.
Throughout this matter the order entered by the court is alternatively referred to as a restraining order or a protective order. We choose to refer to this order as a protective order here for purposes of consistency.
PROCEDURAL AND FACTUAL SUMMARY
We take judicial notice of the procedural and factual summary provided in the first appeal, Hernandez v. Mendoza, supra, F083011, addressing the issuance of the protective order. (Evid. Code, § 459.)
After the protective order was issued, but sometime prior to the hearing held on September 2, 2021, appellant filed a petition to terminate the protective order. During the hearing held on September 2, 2021, the court stated:
"Much of the paperwork that you filed with the [c]ourt was making arguments why-basically, arguments that are appealing the [c]ourt's prior decision. I'm not the appellate court. That order was issued by Commissioner Shaver after an evidentiary hearing.
We have not been provided any documents appellant submitted to the trial court asking that the protective order be set aside. These documents were apparently presented to the trial court sometime soon after the issuance of the protective order. A record of the lower court proceedings is required to both support allegations of claimed error, and to facilitate an appellate court's review of those claims. (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498-499.)
"Your burden in bringing a petition to terminate a [protective] order is-let me pull this up-is to show that there's a material change in the facts, that the relevant law has changed or that doing so would serve the ends of justice. That's standard under Code of Civil Procedure [section] 533. I find you have not met your burden. There isn't material change in facts. The law has not changed. And the ends of justice would not be served by terminating the [protective] order that was just entered less than three months ago."
Appellant filed a notice of appeal challenging the rejection of his petition by the trial court on January 13, 2023. Thereafter, appellant sent two letters to this court. The first, filed on March 24, 2023, asked that the matter be referred for mediation. The second, filed on March 5, 2024, asked this court to set aside the judgment because the individuals listed in the protective order no longer lived in Merced County.
DISCUSSION
I. This Appeal is Not Timely
Appellant filed his notice of appeal soon after this court issued its opinion on the first appeal addressing the issuance of the protective order on December 8, 2022. However, by that time, the ability to challenge the ruling in the trial court denying his separate request to terminate the protective order had long since passed.
A protective order such as the one entered in this case is a form of an injunction. (See Rivera v. Hillard (2023) 89 Cal.App.5th 964, 975.) An order refusing to dissolve an injunction is appealable under Code of Civil Procedure, section 904.1, subdivision (a)(6). Pursuant to California Rules of Court, rule 8.104(a), a notice of appeal must usually be filed within 60 days after the rendition of the judgment or the making of an appealable order. If a notice of entry of judgment or order has not been properly served, this period of time could be extended to 180 days. (Cal. Rules of Court, rule 8.104(a)(1)(C).) "Absent statutory authorization to extend the jurisdictional period, if the notice of appeal is not actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss it." (Ventura Coastal, LLC v. Occupational Safety and Health Appeals Board (2020) 58 Cal.App.5th 1, 36.)
Whether or not an appealability challenge is raised, "[t]he existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.) The requirement to raise the issue on our own is also applicable to an untimely notice of appeal. (Rivera v. Hillard, supra, 89 Cal.App.5th at pp. 974-975.)
Because any appeal in this case challenging the rejection of appellant's petition to terminate the protective order is untimely, we must dismiss this appeal.
II. The Request to "Set Aside the Judgment"
In his March 5, 2024 letter to this court, appellant asks that we set aside the judgment entered by the trial court. If appellant is referencing the protective order, such an action would first require a new finding of facts. That must first be accomplished in the trial court. (See California Farm Bureau Federation v. State Water Resources Control Bd. (2011) 51 Cal.4th 421, 442.) Our role is to review the decisions made by a trial court, not to make the factual findings that support those decisions. (Ibid.) Even if this appeal did not have to be dismissed, we would still be required to deny appellant's request to set aside the judgment.
Similarly, because of the dismissal of this appeal, appellant's request for mediation is moot, especially given the fact the respondents in this case have never appeared.
DISPOSITION
Appellant's appeal of the denial of his petition to terminate the protective order is dismissed. Appellant must bear his own costs on appeal. --------- Notes: [*] Before Levy, Acting P. J., Pena, J. and Smith, J.