Filed 3/26/14 Marriage of Lin CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of GINA and AUGUSTIN
A. LIN.
GINA S. LIN,
G049307
Respondent,
(Super. Ct. No. 10D001389)
v.
OPINION
AUGUSTIN A. LIN,
Appellant.
Motion to dismiss the appeal from an order of the Superior Court of Orange
County, Ronald P. Kreber, Judge. Motion denied.
Honey Kessler Amado for Appellant.
Law Offices of Brian G. Saylin and Brian G. Saylin; Phillips, Whisnant,
Gazin, Gorczyca & Curtin, Gary S. Gorczyca and Daniel Gorczyca for Respondent.
THE COURT:*
There are no unique jurisdictional time limits for appeals from domestic
violence restraining orders. As with other appeals, there is a 60-day time limit for
restraining orders which are properly served, either through a notice of entry of judgment,
or through service by the clerk or party of a file-stamped copy of the order. (Cal. Rules
of Court, rule 8.104(a).) Otherwise, the outside 180-day filing limit applies.
Because the court record does not facially establish service of the domestic
violence restraining order upon the restrained party, we apply the outside 180-day limit to
his appeal. While the restrained party’s personal presence in the courtroom at the time
the restraining order was issued may make it easier to enforce the restraining order
against him, it does not shorten the time limits for filing a notice of appeal.
I
Gina Lin (hereafter Respondent) and Augustin Lin (hereafter Appellant) are
involved in marital dissolution proceedings.
On July 19, 2013, the trial court issued a domestic violence restraining
order in favor of Respondent and against Appellant. Appellant and his counsel were
personally present in the courtroom for the hearing on the domestic violence restraining
order. Neither Respondent nor the court clerk served a document entitled “Notice of
Entry” of the restraining order or a file-stamped copy of the judgment, showing the date
either was served.
On November 15, 2013, Appellant filed a notice of appeal from the
domestic violence restraining order. Appellant’s notice of appeal was filed 119 days after
the restraining order was filed.
Respondent filed a motion to dismiss the appeal as untimely because
Appellant did not file it within 60 days. Respondent contends that the shorter 60-day
* Before O’Leary, P. J., Bedsworth, J., and Moore, J.
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time limit applies rather than the 180-day outside limit because Appellant was present at
the hearing, and the Judicial Council form (DV-130) provides that a restrained person is
considered “served” when so present.
Appellant similarly asked us to issue an early ruling on timeliness rather
than address the issue following briefing on the merits. “Such early determination will
save judicial resources by not requiring a review of the substantive issues if the Court is
without jurisdiction to proceed and will save the parties’ financial resources if they need
not prepare briefs on the merits of the appeal.”
Respondent filed a supplemental brief in which she attached a declaration
from the deputy superior court clerk in the department that issued the restraining order.
The deputy clerk declared that she prepared a corrected version of the restraining order
and “I then handed the restraining order after hearing . . . to [Appellant’s trial counsel.] I
do not recall if [Appellant] was in the courtroom at the time I handed it to [Appellant’s
trial counsel.]”
Appellant contends the clerk’s post-facto declaration neither triggers nor
justifies the shorter 60-day filing period.
II
Because appellate time limits are jurisdictional and cut off litigants’ access
to the courts, we strictly construe statutes and rules concerning the time in which to file a
notice of appeal. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902
(Alan).) “On numerous occasions, California courts have resolved ambiguities
concerning appellate jurisdictional time limits to extend, rather than limit, the right to
appeal, even where such interpretations may be considered hypertechnical in other
contexts.” (In re Marriage of Mosley (2010) 190 Cal.App.4th 1096, 1103 (Mosley).)
Rules that measure jurisdictional time limits “must stand by themselves without
embroidery.” (20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 672.)
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Under the court rules, a notice of appeal must be filed within 60 days after
service (whether by the superior court clerk or by a party) of a notice of entry of
judgment or a file-stamped copy of the judgment. The triggering document must show
the date on which it was served. (Cal. Rules of Court, rule 8.104(a)(1).)
If there is no notice, the notice of appeal must be filed within 180 days after
entry of the judgment. (Cal. Rules of Court, rule 8.104(a)(1)(C).) “This outside time
limit is jurisdictional and cannot be extended, even if notice was not given. Appellants
have a maximum of 180 days to come to a judgment, and cannot wait for a judgment to
come to them.” (Mosley, supra, 190 Cal.App.4th at p. 1099.)
Without dispute, neither the superior court clerk nor Respondent served a
file-stamped copy of the domestic violence restraining order in the manner required by
California Rules of Court, rule 8.104(a)(1)(A) or rule 8.104(a)(1)(B). Under the rule’s
plain language, the shorter 60-day filing period therefore does not come into play.
In Alan, supra, 40 Cal.4th 894, our Supreme Court declined to apply the
60-day rule to a situation where the superior court clerk simultaneously mailed two
separate documents that together provided written notice of a decision, but that singly fell
short of the statutory requirements. The Supreme Court refused to adopt a construction
requiring litigants “to glean the required information from multiple documents or to
guess, at their peril, whether such documents in combination trigger the duty to file a
notice of appeal.” (Id. at p. 905.) “Neither parties nor appellate courts should be required
to speculate about jurisdictional time limits.” (Ibid.)
Respondent relies instead upon a statutory provision in the Family Code
that does away with the need to personally serve restraining orders upon restrained
parties who are personally present in the courtroom when such orders are issued. Family
Code section 6384, subdivision (a) provides: “If a [restrained party] named in an order
issued under this part after a hearing has not been served personally with the order but
has received actual notice of the existence and substance of the order through personal
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appearance in court to hear the terms of the order from the court, no additional proof of
service is required for enforcement of the order.”
This provision may obviate the need for service of an order for purposes of
enforceability, but it has no impact upon the service requirement to shorten the time for
appealability from 180 days to 60 days. There is nothing in the pertinent court rules to
support Respondent’s interpretation that Appellant somehow “waived” his right to appeal
the domestic violence restraining order simply because he received actual notice of the
trial court’s ruling.
Indeed, the court rules expressly provide that a party’s waiver of notice of
ruling does not automatically trigger the shorter 60-day jurisdictional time limits for
filing notices of appeal, even where the party’s waiver of notice occurs in open court and
is entered into the minutes, as allowed under Code of Civil Procedure section 1019.5.
Notwithstanding the statutory waiver of notice, the prevailing party still must comply
with the service provisions in the court rules in order to shorten the appeals period from
180 days to 60 days. (Cal. Rules of Court, rule 8.104(a)(3); see also E.M. v. Los Angeles
Unified School Dist. (2011) 194 Cal.App.4th 736, 744.)
In Thiara v. Pacific Coast Khalsa Diwan Society (2010) 182 Cal.App.4th
51, the respondents sought to dismiss an appeal based on the running of the 60-day time
limit because they mailed a copy of the judgment to appellant with a cover letter, but
without a proof of service. They argued the cover letter accomplished the same purposes
as a proof of service and therefore should trigger the 60-day period. The Court of Appeal
disagreed, refusing to disregard the clear and unambiguous requirement in the court rules
for a proof of service, which proof could not be waived. “We do not believe a party
should be required to speculate whether a cover letter accompanied by a copy of a
judgment mailed to the party’s attorney was intended to or did constitute a ‘“Notice of
Entry” of judgment or a file-stamped copy of the judgment, accompanied by proof of
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service,’ sufficient to commence the running of the time for filing a notice of appeal
under rule 8.104(a)(2).” (Id. at p. 58.)
As in Thiara, the deputy clerk’s declaration regarding service, which was
not filed until this court was considering Respondent’s motion to dismiss, changes
nothing. Under the court rules, the deputy clerk’s proof of service triggers the start of the
60-day filing period when it accompanies a file-stamped copy of the judgment; it cannot
be used after the fact to show that the 60-day period already has run. “Strict compliance
with the provisions of the rule is required.” (Thiara, supra, 182 Cal.App.4th at p. 58.)
According to the Advisory Committee comment, “The proof of service establishes the
date that the 60-day period under subdivision (a)(1)(A) begins to run.” (Advisory Com.
com., 23 pt. 2 West’s Ann. Codes, Rules (2014 supp.) foll. rule 8.104(a), p. 257, italics
added.)
DISPOSITION
The motion to dismiss is denied.
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