Opinion
G056148
05-25-2018
In re Marriage of WALLACE LOY TIM and AMY JU WONG. ELIZABETH WONG, as Successor Trustee, etc., Appellant, v. AMY JU WONG, Respondent.
Sitzer Law Group, P. C., Michael Ferdinand Sitzer and Stefanie Michelle Sitzer for Appellant. Seastrom Seastrom & Tuttle and Thomas W. Tuttle; Law offices of Marjorie G. Fuller and Marjorie Gross Fuller 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 95D011667) OPINION Appeal from an order of the Superior Court of Orange County, Mark Millard, Judge. Motion to dismiss appeal granted. Sitzer Law Group, P. C., Michael Ferdinand Sitzer and Stefanie Michelle Sitzer for Appellant. Seastrom Seastrom & Tuttle and Thomas W. Tuttle; Law offices of Marjorie G. Fuller and Marjorie Gross Fuller for Respondent.
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Before O'Leary, P. J., Ikola, J., and Goethals, J.
On April 2, 2018, appellant filed separate notices of appeal purporting to appeal from orders entered on August 18, 2017 and September 15, 2017. According to the notices of appeal, the September 2017 order "modified" the August 2017 order, and both orders were in turn "modified" by a January 31, 2018 order. Appellant asserts all three orders are appealable as postjudgment orders (Code Civ. Proc., § 904.1, subd. (a)(2)) and as orders granting (or refusing to dissolve) an injunction (§ 904.1, subd. (a)(6).)
All statutory references are to the Code of Civil Procedure.
The gap between the entry of the August and September 2017 orders and the filing of the notices of appeal was significant — 227 and 199 days, respectively. Assuming for the sake of argument that these were appealable orders, the notices of appeal were untimely. (See Cal. Rules of Court, rules 8.104, 8.108; see Anderson v. Chikovani (2010) 181 Cal.App.4th 1397, 1401 ["latest possible deadline" for filing notice of appeal is 180 days from entry of order or judgment].)
It appears that the April 2018 notices of appeal are timely with regard to the January 2018 order. Appellant attempts to save her appeals by claiming that the January 2018 order "modified" the prior orders and somehow thereby "extended the time to appeal" the August 2017 and September 2017 orders. But appellant's own theory of appealability in this case is that postjudgment orders and/or orders ruling on injunctive relief requests are each appealable — there is no need to wait for a final determination of the issue in question. The flip side of appellant's assertion is that without a timely appeal of such an immediately appealable order, this court cannot review it. (See, e.g., McLellan v. McLellan (1972) 23 Cal.App.3d 343, 357 [party did not appeal temporary restraining order; appellate court could not review the order on appeal from the judgment].)
Appellant's notices of appeal do not directly claim to be appealing from the January 2018 order. Even if the notices of appeal are liberally construed (Cal. Rules of Court, rule 8.100(a)(2)) to include an appeal from the January 2018 order on its own terms (rather than as mechanism to review the prior orders), this matter must be dismissed.
A brief description of each order is required to understand the import of the January 2018 order. The August 2017 order required appellant to place approximately $17.5 million in a designated escrow account and provide specified disclosures concerning the funds to respondent. The September 2017 order, among several other rulings, clarified that the funds could be maintained in a different account. The January 2018 order declined to grant appellant's ex parte application to void prior orders in the case (including the August and September 2017 orders). Instead, the court invited additional briefing and deferred a substantive ruling until a hearing scheduled for February 16. The January 2018 order granted appellant's request for an order shortening time to proceed with the February hearing on shortened notice. And the January 2018 order included ambiguous language concerning the effect of prior orders pending any future ruling. The order states: "The orders . . . in this proceeding are temporarily stayed and are not subject to enforcement pending the hearing. This means no party may take any action contrary to the pending orders subject to further order of this court."
No part of the January 2018 order is appealable. It granted in part relief sought by appellant, namely an order shortening time on a request for relief and a "stay" of prior orders. Appellant was not aggrieved by affirmative relief provided to her at her request. (§ 902.) Moreover, to the extent the order merely held in place the prior orders pending a full noticed hearing, this does not restart the time for an appeal of the relief granted in a prior order. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1133.) Finally, to the extent that the court deferred determination of an ex parte application for substantive relief in favor of a noticed hearing in the future, such an order is not appealable. The court has not yet issued an order refusing to dissolve or void its prior injunction. (See In re Marriage of Levine (1994) 28 Cal.App.4th 585, 589 [dismissing a portion of the appeal arising from an order reserving issues for later determination; "an essential element of an appealable postjudgment order is that the order be one which is not preliminary to later proceedings"].)
DISPOSITION
Respondent's motion to dismiss the appeal is granted. The appeal is dismissed. Respondent shall recover costs incurred on appeal.