Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. fl000628
RUSHING, P.J.
Appellant Charles Michael Whittinghill appeals from a post-judgment order entered by the family court arising out of a condition in his marriage settlement agreement with his ex-wife, respondent Linda Whittinghill. While the appeal was pending in this court respondent filed a motion to dismiss the appeal as taken from a non-appealable order. Appellant failed to oppose the motion to dismiss. Finding the order appealed from to be a non-appealable order, we dismiss the appeal.
Factual and Procedural Background
In 1995, the parties entered into a settlement agreement (Agreement) resolving their marital dissolution action. The Agreement provided for the sale of a particular piece of property by appellant 10 years after the dissolution was final. When the 10 years had passed and appellant continued to refuse to sell the property, respondent filed a request for order to show cause to enforce the sale provision. As part of the litigation on the order to show cause, a sub-issue arose regarding the buyout option and the deduction of post-Agreement promissory notes.
The family court bifurcated the promissory note issue and proceeded to hear and decide this issue separately. The trial court issued an order adjudicating the promissory note issue on December 12, 2006, leaving the remainder of the order to show cause (OSC) issues unresolved. This appeal ensued.
While the appeal was pending, respondent moved to dismiss the appeal as taken from a non-appealable order. The appellant did not oppose the motion.
Discussion
As a preliminary matter, the “failure to oppose a motion may be deemed a consent to the granting of the motion.” (Calif. Rules of Court, rule 8.54, subd. (c).) As appellant has failed to oppose the motion to dismiss, we presume that he consents to the granting of the motion.
Even if we had not deemed appellant’s silence to constitute consent, the motion to dismiss is properly granted. In her motion, respondent contends that while appeals of post-judgment orders are authorized by Code of Civil Procedure section 904.1, subdivision (a)(2), not all post judgment orders are appeal able. Respondent contends that in order for a post-judgment order to be appeal able it must finally resolve the underlying claim raised in the post-judgment motion. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651.)
Here, the trial court bifurcated and resolved a sub-issue regarding deduction of post-Agreement encumbrances which arose out of the OSC re: sale of property. The OSC, itself, remained pending at the time the notice of appeal was filed. Therefore, there has been no final resolution of the OSC motion filed by the respondent. The order regarding the deduction of post-Agreement encumbrances is, thus, not separately appeal able.
Disposition
The appeal is dismissed as taken from a non-appeal able order.
WE CONCUR: PREMO, J., ELIA, J.