Marriage of Hill CA4/1

Filed 9/29/16 Marriage of Hill CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of CARLA and
RONALD S. HILL.
D066542
CARLA HILL,

Appellant, (Super. Ct. No. ED79539)

v.

RONALD S. HILL,

Respondent.

APPEAL from a judgment and orders of the Superior Court of San Diego County,

Steven E. Stone, Judge. Dismissed in part and affirmed in part.

Carla A. Hill, in pro. per., for Appellant.

Ronald S. Hill, in pro. per., for Respondent.

This is an appeal in marriage dissolution proceedings involving Carla Hill and

Ronald S. Hill. Carla appeals from the stipulated judgment and multiple orders. As we
will discuss, the appeal from the judgment and some of the orders must be dismissed as

untimely. After reviewing the remaining orders, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Carla and Ronald married in January 2009 and separated about ten months later.

Carla petitioned to end the marriage and the parties met with a special master to mediate

their disputes. The parties signed a stipulated judgment. The clerk served a notice of

entry of judgment on October 3, 2011. At this time, both parties were represented by

counsel.

The stipulated judgment awarded Ronald all community property assets and debts

(if any) in exchange for an equalization payment of $50,000 to Carla. Ronald's

equalization payment terminated his obligation to pay spousal support. The parties also

agreed that they were settling "without a full and complete assessment of the value of the

property," "[e]ach party has instructed his or her attorney not to undertake any assessment

or investigation" and acknowledged that the parties were satisfied with the agreed

property division.

In April 2012, Carla appeared in propria persona to set aside the stipulated

judgment, citing Family Code sections 2120, 2122 and the disclosure requirements of

Family Code sections 2102-2109. In November 2013, the family court held a hearing on

the motion. Both parties were again represented by counsel. The family court denied the

motion explaining that Carla had knowledge of the items she now claims were required to

be disclosed and that the alleged nondisclosure did not materially affect the judgment.

The family court also found that Carla voluntarily entered into the agreement to resolve

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the dispute and there was no evidence of a mistake required to set aside the judgment.

The court noted that the parties had conducted extensive discovery and Carla had

competent counsel at the settlement conference. The court also denied Ronald's request

for sanctions based on Carla's financial situation. The family court issued a minute order

that same day denying the motion.

Thereafter, the court considered numerous ex parte applications and motions,

which we will not detail here. Carla filed four notices of appeal, appealing from the

judgment and various orders.

DISCUSSION

I. General Legal Principles

In addressing an appeal, we begin with the presumption that a judgment or order

of the trial court is presumed correct and reversible error must be affirmatively shown by

an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Denham v. Superior

Court (1970) 2 Cal.3d 557, 564.) The appellant must "present argument and authority on

each point made" (County of Sacramento v. Lackner (1979) Cal.App.3d 576, 591; Cal.

Rules of Court, rule 8.204(a)(1)(B)1 and cite to the record to direct the reviewing court to

the pertinent evidence or other matters in the record that demonstrate reversible error.

(Rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)

It is not our responsibility to comb the appellate record for facts, or to conduct legal

research in search of authority, to support the contentions on appeal. (Del Real v. City of

1 Undesignated Rule references are to the California Rules of Court.
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Riverside (2002) 95 Cal.App.4th 761, 768.) If the appellant fails to cite to the record or

relevant authority, we may treat the issue as waived. (Mansell v. Board of Administration

(1994) 30 Cal.App.4th 539, 545-546.) Although Carla is representing herself in

propria persona, she is not exempt from the rules governing appeals. A self-represented

party is to be treated like any other party and is entitled to the same, but no greater,

consideration than other litigants having attorneys. (Nwosu v. Uba (2004) 122

Cal.App.4th 1229, 1246-1247.)

The notice of appeal defines the scope of the appeal by identifying the particular

judgment or order being appealed. (Rule 8.100(a)(2).) A notice of appeal must be

carefully drafted to identify the order or judgment being appealed so as not to mislead or

prejudice the respondent. (Morton v. 4 Wagner (2007) 156 Cal.App.4th 963, 967.)

While a notice of appeal must be liberally construed (Rule 8.100), the rule of liberal

construction does not permit us to address issues pertaining to an order or judgment not

specified in the notice of appeal. (Norman I. Krug Real Estate Investments, Inc. v.

Praszker (1990) 220 Cal.App.3d 35, 46-47.) Where several judgments or orders

occurring close in time are separately appealable, each appealable judgment and order

must be expressly specified in either a single notice of appeal or multiple notices of

appeal in order to be reviewable on appeal. (Sole Energy Co. v. Petrominerals Corp.

(2005) 128 Cal.App.4th 212, 239.)

II. Analysis

Carla filed four separate notices of appeal. We address each notice of appeal to

determine what orders Carla is appealing from and whether the appeal as to each order is

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timely. As we will discuss, Carla timely appealed from orders filed on August 13, 2014

and September 23, 2014. As to these orders, we first examine whether each order is

appealable. To the extent each order is appealable, we then address the merits of Carla's

appeal.

A. Timeliness of Appeal

The timely filing of a notice of appeal is a jurisdictional prerequisite to the

appellate court's power to entertain the appeal. (Van Beurden Ins. Services, Inc. v.

Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) If the

appeal is untimely, this court has no jurisdiction to consider it, and it must be dismissed.

(Rule 8.104(b).) Under rule 8.104(a)(1), "a notice of appeal must be filed on or before

the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party filing the

notice of appeal . . . a file-endorsed copy of the judgment, showing the date [it] was

served; [¶] (B) 60 days after the party filing the notice of appeal . . . is served with a

document entitled 'Notice of Entry' of judgment or a file-endorsed copy of the judgment,

accompanied by proof of service . . . ." The word "judgment" as used in subdivision

(a)(1) includes an appealable order if the appeal is from an appealable order. (Rule

8.104(e).)

Under rule 8.108, the deadline for filing a notice of appeal may be extended by the

superior court's denial of certain posttrial motions. Nonetheless, a rule 8.108 extension

cannot lengthen the time for noticing an appeal beyond 180 days after the date of entry of

the appealable judgment or order. The 180-day deadline is the outside limit in all such

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cases. (Rule 8.108(b)(1)(C), (c), (d) & (e); Marriage of Eben-King & King (2000) 80

Cal.App.4th 92, 109.)

Carla's first notice of appeal is dated August 14, 2014. This notice stated that

Carla appealed from the judgment and an order dated November 14, 2013. Under rule

8.104(a)(3), the latest a notice of appeal can be filed under any circumstance is 180 days

after entry of the judgment or order from which the appeal is taken. Because Carla's

notice of appeal was filed over two years after entry of the judgment, the appeal from the

judgment is untimely and must be dismissed. Carla's appeal from the November 14,

2013 order must also be dismissed as it was filed over eight months after the family court

entered the order.

Carla's second notice of appeal, dated September 24, 2014, again appeals from the

order issued November 14, 2013. Carla's appeal from the November 14, 2013 order must

be dismissed as untimely. The second notice of appeal also lists an order dated August

13, 2014 (the August order) denying her motions to set aside the judgment, void the

judgment and for reconsideration. The appeal from the August order is timely.

Carla's third notice of appeal, dated October 20, 2014, lists a September 23, 20142

order (the September order) granting sanctions against her and denying her motion to

reconsider withdrawal of attorney Ed Castro as her counsel of record. Carla's appeal,

filed about a month after entry of the September order, is timely.3

2 All further date references are to 2014, unless otherwise indicated.
3 Ronald's March 24, 2016 request for judicial notice of the findings and order after
hearing dated September 23 is granted. (Evid. Code, § 452, subd. (a).)
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 Finally, Carla filed a fourth notice of appeal on November 20, appealing from the

judgment and orders dated: May 14, August 14 and September 24. As addressed above,

the appeal from the judgment is untimely. Our review of the clerk's transcript does not

show any orders dated May 14, August 14 or September 24. As we discussed above,

Carla timely appealed from orders dated August 13 and September 23. We construe

Carla's reference to orders dated August 14 and September 24 to be typographical errors.

B. Appealability and Merits of Appeal

Having concluded that Carla timely appealed from the August and September

orders, we next address whether these orders are appealable. An appealable order is

essential to appellate jurisdiction and an order is not appealable unless expressly made so

by statute. (Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688, 696;

Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) "[T]he question whether an order is

appealable goes to the jurisdiction of an appellate court, which is not a matter of shades

of grey but rather of black or white." (Farwell v. Sunset Mesa Property Owners

Association, Inc. (2008) 163 Cal.App.4th 1545, 1550.) If a doubt exists as to whether a

judgment or order is appealable, the appellate court must consider the issue sua sponte

(i.e., on its own motion) and must ordinarily dismiss an appeal from an order or judgment

found to be nonappealable. (Jennings v. Marralle, supra, at p. 126.) As discussed below,

all but one of the orders is appealable.

1. August Order

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 The August order denied Carla's motions to set aside the judgment under Family

Code section 2120, void the judgment under Code of Civil Procedure4 section 473,

and for reconsideration under sections 1008 and 473, subdivisions (b) and (d). A

postjudgment order denying a motion for reconsideration is not appealable. (§ 1008,

subd. (g); Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 927,

fn. 6.) Rather, an order denying a motion for reconsideration is reviewable through the

judgment, but only if the notice of appeal from the judgment is timely. (§ 1008, subd.

(g); Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 874 ["denial of [a] motion

for reconsideration [is] not appealable but [is] reviewable on [a] timely appeal of the

underlying order"].) As noted above, Carla did not timely appeal from the judgment.

Accordingly, the order denying her motion for reconsideration is not reviewable and the

appeal from that order must be dismissed.

The denial of a Family Code section 2120 motion to set aside is an appealable

order. (See Marriage of Jones (1998) 60 Cal.App.4th 685, 689 [entertaining appeal from

order denying motion to set aside dissolution judgment under Family Code section 2120

et seq.]; Marriage of Varner (1997) 55 Cal.App.4th 128, 136 [same].) An order denying

a statutory motion to vacate a judgment under section 473 is also appealable as an order

after judgment. (§ 904.1, subd. (a)(2); Generale Bank Nederland v. Eyes of the Beholder

Ltd. (1998) 61 Cal.App.4th 1384, 1394.) Thus, we examine the merits of Carla's appeal

as to that portion of the August order denying these motions.

4 All further undesignated statutory references are to the Code of Civil Procedure.
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a. Section 473

Carla moved to void the stipulated judgment citing subdivisions (b) and (d) of

section 473. Section 473, subdivision (b) provides for both discretionary and mandatory

relief from a judgment. The discretionary provision allows the trial court to grant relief if

the moving party demonstrates mistake, inadvertence, surprise, or excusable neglect.

Where a party seeks relief under the discretionary provision, the application must be

made "within a reasonable time, in no case exceeding six months, after the judgment,

dismissal, order, or proceeding was taken." (§ 473, subd. (b).) The mandatory or

"attorney fault" provision requires that the motion be accompanied by "an attorney's

sworn affidavit" attesting to the attorney's mistake, inadvertence, surprise, or neglect. On

the filing of such an affidavit, the court must grant relief "unless the court finds that the

default or dismissal was not in fact caused by the attorney's mistake, inadvertence,

surprise, or neglect." (§ 473, subd. (b).)

Here, Carla did not submit an attorney's declaration of fault with her motion.

Accordingly, the mandatory relief provision of section 473 does not apply. Relief under

the discretionary provision of section 473 is also unavailable as Carla filed her motion

well after the six-month deadline. The outside six-month limit on seeking relief is

jurisdictional. (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725,

735, fn. 3.) While the family court did not cite the timeliness of the motion in its ruling,

we review the trial court's ruling and not its reasoning. (Coral Construction, Inc. v. City

and County of San Francisco (2010) 50 Cal.4th 315, 336.)

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 Under subdivision (d) of section 473, a trial court has the authority to set aside a

void judgment or order at any time. A trial court also has inherent authority to vacate a

judgment void on its face. (Rochin v. Pat Johnson Manufacturing Co. (1998) 67

Cal.App.4th 1228, 1239.) Whether a judgment is void is a question of law, which we

review do novo. (Nixon Peabody LLP v. Superior Court (2014) 230 Cal.App.4th 818,

822.) A judgment is void when the court lacks jurisdiction in a fundamental sense. Lack

of fundamental jurisdiction " 'means an entire absence of power to hear or determine the

case, an absence of authority over the subject matter or the parties.' " (People v.

American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.)

In her sworn declaration supporting the motion, Carla asserted mistakes existed in

the judgment, she entered the judgment under duress, Ronald failed to disclose certain

information and that the judgment was unconscionable. Carla, however, provided no

evidence showing the family court lacked jurisdiction to enter the judgment.

Accordingly, the family court properly denied relief under subdivision (d) of section 473

as Carla failed to show that the stipulated judgment was void.

b. Family Code

Carla also filed a motion to set aside the judgment under Family Code section

2120. The family court denied the motion as untimely, noting that the alleged fraud

should have been discovered no later than the time of Carla's April 3, 2012 motion to set

aside the judgment and no evidence existed showing Ronald had committed fraud. On

appeal, Carla contends the family court erred in interpreting Family Code sections 2100

to 2113 when it ruled on her renewed motion to set aside the judgment. Citing Family

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Code section 2105, Carla asserts the judgment must be set aside because she and Ronald

stipulated to the judgment before the required disclosures had been exchanged.

Family Code sections 2100 through 2113 pertain to the disclosure of all marital

assets and liabilities, and income and expenses. (See Fam. Code, § 2100, subd. (c).)

These statutes, however, do not address the requirements for setting aside a marital

dissolution judgment. Rather the requirements for setting aside such a judgment are

contained in Family Code sections 2120 through 2129. Family Code "[s]ection 2122 sets

out the exclusive grounds and time limits for an action or motion to set aside a marital

dissolution judgment." (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684.)

After expiration of the statutorily-prescribed time periods contained in Family Code

section 2122, " 'set-aside relief is not available and the judgment is effectively final for

all purposes.' " (In re Marriage of Georgiou and Leslie (2013) 218 Cal.App.4th 561,

571.)

Six grounds exist to set aside a judgment, or portion thereof, including actual

fraud, perjury, duress, mental incapacity, mistake, and the failure to fully disclose the

value of assets under Family Code section 2100 et seq. (Fam. Code, § 2122, subds. (a)-

(f).) The time limit to file a motion based on duress or a mistake in the stipulated

judgment is, respectively, one and two years after the date of entry of the judgment.

(Fam. Code, § 2122, subds. (c), (e).) Here, Carla filed her motion to set aside the

judgment on February 14, 2014, more than two years after the date of the October 3,

2011 stipulated judgment. Thus, to the extent Carla relied or duress or mistake, the

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family court properly concluded that her motion to set aside the stipulated judgment was

untimely.

The time period to set aside a judgment based on either actual fraud or failure to

comply with the notice requirements of Family Code section 2100 et. seq. is one year

after the date on which the complaining party either discovered, or should have

discovered, the fraud or the failure to comply. (Fam. Code, § 2122, subds. (a), (f).) The

family court made a factual finding that Carla should have discovered the alleged fraud

no later than the time of her April 2012 motion. The record supports this finding.

In Carla's 2012 motion, she argued that Ronald had committed fraud. She also

argued that Ronald had failed to comply with the Family Code disclosure requirements.

Thus, Carla knew of Ronald's alleged fraud and failure to disclose more than two years

before she filed her motion to set aside the judgment on February 14, 2014. To the extent

Carla sought to set aside the judgment based on fraud or Ronald's failure to comply with

the Family Code disclosure requirements, her motion was untimely. Accordingly, the

family court properly denied Carla's renewed motion to set aside the judgment.

2. September Order

The September order granted Ronald's request for sanctions under Family Code

section 271 and, alternatively, under Code of Civil Procedure section 128.7, in the

amount of $19,365, payable in the amount of $200 per month.5 An order awarding

5 The September order also denied Carla's motion to reconsider withdrawal of
attorney Ed Castro as her counsel of record, noting that Carla had not met her burden
under Code of Civil Procedure section 1008. Carla, however, presented no argument
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attorney's fees under Family Code section 271 is appealable. (In re Marriage of Burgard

(1999) 72 Cal.App.4th 74, 82.) The court's alternative order granting sanctions under

section 128.7 is also appealable. (§ 904.1, subd. (a)(12).)

In her opening brief, Carla contends that the sanctions order should be reversed.

Carla asserts the family court abused its discretion because: she is indigent and cannot

afford the sanctions; her behavior was not sanctionable; and the sanctions impose an

unreasonable financial burden even with the payment plan.

A family court may award attorney's fees and costs as a sanction where the

conduct of a party or attorney frustrates the policy to promote settlement of litigation and

reduce the cost of litigation. (Fam. Code, § 271, subd. (a).) In awarding sanctions under

Family Code section 271 the court must consider "all evidence concerning the parties'

incomes, assets, and liabilities" and it cannot impose a sanction that constitutes an

unreasonable financial burden on the sanctioned party. (Ibid.) The financial need of the

party requesting an award of attorney's fees and costs under Family Code section 271 is

irrelevant. (Ibid.) We review an award of Family Code section 271 sanctions for abuse

of discretion. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225-1226.)

In awarding sanctions under Family Code section 271, the court made a number of

findings. The court noted that it held multiple hearings on Carla's motion to set aside the

judgment and previously found that Carla's actions warranted sanctions, but declined to

regarding this portion of the September order. Thus, we deem any appeal as to this
portion of the September order as abandoned. (Rossiter v. Benoit (1979) 88 Cal.App.3d
706, 710-711.)
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issue sanctions at that time. Thereafter, Carla filed three unmeritorious motions and

made four ex parte appearances. The family court explained:

"I've given the petitioner every opportunity to think about her
actions. She's been given more than ample time in court. She's been
given a lot of time to have her matter heard, heard fully and make
sure this court understood her arguments and to give her the leeway
that the court must give a self-represented litigant.
"It's not about being on one side or another. It's about following
the law. It's about the facts of this case. It's about the evidence that's
presented. Again, this court has done almost everything possible not
to sanction the petitioner. I didn't award sanctions after the first
hearing when [counsel] represented her, but the motions continued
motion after motion.
"This court at this point believes that this type of conduct, as
documented in the record, is precisely what Family [Code section]
271 intends to prevent. I, therefore, believe and find that sanctions
under [Family Code section] 271 independently are warranted."

The record supports the family court's finding that Carla's conduct warranted

sanctions. Carla filed her petition to dissolve the marriage in March 2010 and the parties,

while represented by counsel, entered into a stipulated judgment about 20 months later.

In November 2013, the family court denied Carla's motion to set aside the judgment and

Ronald's request for sanctions. Thereafter, Carla filed three motions to avoid the

judgment, essentially rearguing the same issues. She also filed five ex parte applications.

"Somewhere along the line, litigation must cease." (In re Marriage of Crook

(1992) 2 Cal.App.4th 1606, 1613.) After spending a considerable amount of time with

Carla, the family court found Carla was intelligent and that her arguments regarding her

disability, the merits of her motions and her alleged lack of understanding to be

incredible. We may not reweigh evidence and are bound by the family court's credibility

determinations. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) Carla

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had a full and fair opportunity to litigate her claims and the family court, under the

circumstances, properly exercised its discretion to sanction Carla to deter further

unmeritorious motions.

Regarding Carla's ability to pay the sanctions, the family court correctly noted that

Carla had filed two income and expense declarations in September showing she received

monthly disability or social security income of either $2,600 or $2,800. Thus, the record

adequately supports the family court's finding that Carla had the ability to pay the

sanctions and Carla cited no evidence showing the sanctions, in light of the payment plan,

imposed an unreasonable financial burden on her. (In re Marriage of Corona (2009) 172

Cal.App.4th 1205,1227 [party challenging sanctions award had burden to show reversible

error or an abuse of discretion].)

Carla also contends the trial court erred in relying on section 128.7 as an

alternative basis for the award of sanctions against her claiming this statute pertains to

attorneys and does not apply to motions. Because we affirm the sanction award under

Family Code section 271, there is no need for us to consider these arguments. In any

event, we note that Carla is mistaken.

Section 128.7 requires attorneys or unrepresented parties certify, through their

signature on documents filed with the court, that every pleading, motion or other similar

paper presented to the court has merit and is not being presented for an improper purpose.

(Musaelian v. Adams (2009) 45 Cal.4th 512, 516; § 128.7, subd. (b)(1)-(4).) If, after

notice and a reasonable opportunity to respond, the court determines the certification was

improper under the circumstances, it may impose an appropriate sanction. (§ 128.7,

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subd. (c).) By its express terms, section 128.7 applies to unrepresented parties, such as

Carla, who have signed, filed, submitted or advocated "a pleading, petition, written notice

of motion, or other similar paper." (§ 128.7, subd. (b).) As another court noted, when a

party abuses the legal system by filing baseless motions the conduct victimizes not only

the opposing litigant, but other litigants by "useless diversion of the courts' attention" and

wasting "the court's time and resources." (Marriage of Falcone & Fyke (2008) 164

Cal.App.4th 814, 830.) Carla's actions are the precise type of conduct section 128.7 was

intended to deter. To the extent the family court based the sanction award on section

128.7, its ruling is amply supported by the record.

C. Remaining Issues

Finally, Carla's opening brief contains a number of other arguments pertaining to

the dissolution proceeding. There is no need for us to address these arguments to resolve

the issues in this appeal and we decline to do so.

DISPOSITION

The appeal from the judgment and the November 14, 2013 order is dismissed as

untimely. The orders dated August 13, 2014, and September 23, 2014 are affirmed.

Respondent is awarded his costs on appeal.

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 O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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