Annette F. v. Sharon S.

• Decision Date: 12 July 2005
• Docket Number: No. D043723.,D043723.
• Citation: 130 Cal.App.4th 1448,30 Cal.Rptr.3d 914
• Court: California Court of Appeals Court of Appeals
• Parties: ANNETTE F., Plaintiff and Respondent, v. SHARON S., Defendant and Appellant.

30 Cal.Rptr.3d 914

130 Cal.App.4th 1448

ANNETTE F., Plaintiff and Respondent, v. SHARON S., Defendant and Appellant.

No. D043723.

Court of Appeal, Fourth District, Division 1.

July 12, 2005.

Rehearing Denied July 22, 2005.

Review Denied September 21, 2005.^*

Blatchley & Blatchley, William E. Blatchley, San Diego; John L. Dodd &

Associates and John L. Dodd, Tustin, for Defendant and Appellant.

National Center for Lesbian Rights, Shannon Minter and Courtney Joslin, San Francisco, for Plaintiff and Respondent.

McDONALD, J.

Sharon S. (Sharon) appeals an order awarding Annette F. (Annette) attorney fees in Annette's action raising custody and visitation issues as to their son Zachary. On appeal Sharon contends the trial court: (1) acted in excess of its jurisdiction by awarding attorney fees without statutory authority; and (2) abused its discretion by awarding Annette $17,500 in attorney fees in the circumstances of this case. Annette contends Sharon's appeal is untimely and should be dismissed. Because we conclude Sharon's notice of appeal was not timely filed, we dismiss her appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Sharon and Annette were in a committed relationship from 1989 through mid-2000. (Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 422, 2 Cal.Rptr.3d 699, 73 P.3d 554.) In 1996 Sharon gave birth to Zachary. (Ibid.) In 1997 Annette adopted Zachary through a second-parent adoption.

In 1999 Sharon gave birth to Joshua. (Sharon S. v. Superior Court, supra, 31 Cal.4th at p. 422, 2 Cal.Rptr.3d 699, 73 P.3d 554.) Sharon signed an independent adoption placement agreement in which she consented to Annette's adoption of Joshua. (Ibid.) Annette filed a petition to adopt Joshua through a second-parent adoption, but Sharon subsequently moved for court approval to withdraw her consent to the adoption. (Id. at p. 423, 2 Cal. Rptr.3d 699, 73 P.3d 554.) Litigation ensued regarding Annette's petition to adopt Joshua, ultimately resulting in a decision by the California Supreme Court in Sharon S. v. Superior Court, supra, and remand for further proceedings. (Id. at p. 446, 2 Cal.Rptr.3d 699, 73 P.3d 554.)

In September 2000 Annette filed a petition to establish a parental relationship, seeking a court determination that she is the parent of Zachary and Joshua.¹ Her petition also sought physical custody of and reasonable visitation with the children. In conjunction with her petition, Annette also filed an order to show cause seeking orders for custody, visitation, attorney fees and costs, and case consolidation (apparently to consolidate the instant petition with her separate petition to adopt Joshua).

In December the court stayed Annette's petition to establish a parental relationship with Joshua, whose proposed adoption by Annette was subject to ongoing proceedings in the juvenile court, but the court allowed her action to proceed as to Zachary. The court then ordered Annette to pay Sharon $907 per month in child support for Zachary.

On November 21, 2002, at a hearing on pending child support, visitation, and discovery issues, the trial court granted Annette's request for an award of attorney fees and ordered Sharon to pay Annette $17,500 in attorney fees. Annette's counsel offered to prepare and submit for the court's approval a written order reflecting its oral rulings at the hearing.

On March 14, 2003, Sharon apparently submitted for filing with the court a motion seeking reconsideration of the court's award of attorney fees to Annette.²

On March 17 the court issued a written order reflecting its oral ruling at the November 21, 2002 hearing ordering Sharon to pay Annette $17,500 in attorney fees. The March 17 order did not address Sharon's motion for reconsideration.

On April 10 the court set a hearing on Sharon's motion for reconsideration. On October 2, after two continuances of the hearing date, Sharon's motion for reconsideration was heard and denied by the trial court. On January 8, 2004, the court issued a "corrected" written order reflecting its rulings at the October 2, 2003 hearing.

On February 5, 2004, Sharon filed a notice of appeal regarding "the order denying rehearing entered January 8, 2004, and the order of November 21, 2002, granting Annette . . . attorney fees, and the whole thereof, including all prior orders."

On August 16 we sent a letter to counsel noting that under California Rules of Court, rule 2,³ the last day a timely notice of appeal could be filed from the March 17, 2003 order awarding Annette attorney fees was September 13, 2003, and an order denying a motion for reconsideration is not appealable. We requested that each counsel submit a letter explaining why Sharon's appeal should not be dismissed on the grounds that the January 8, 2004 order denying her motion for reconsideration is not an appealable order and the notice of appeal is untimely as to the March 17, 2003 order awarding Annette attorney fees.

On August 24 Sharon filed a letter brief responding to our August 16 letter. Subsequently, the parties filed briefs addressing the substantive issues of Sharon's appeal, as well as the issues raised in our August 16 letter.

DISCUSSION

I Sharon's Appeal Must Be Dismissed

Sharon argues her appeal should not be dismissed because: (1) her notice of appeal was timely filed because the trial court granted a hearing on her motion for reconsideration of its March 17, 2003 order awarding Annette attorney fees, the effect of which was to vacate that order; and (2) we should consider the trial court's order denying her motion for reconsideration to be appealable in the circumstances of this case. Alternatively, Sharon requests that we consider her appeal to be a petition for writ relief.

A

We first address the timeliness of Sharon's notice of appeal of the trial court's March 17, 2003 order awarding Annette attorney fees and whether its grant of a hearing on her motion for reconsideration of that order vacated that order for purposes of appeal under appellate rules.

"A timely notice of appeal vests jurisdiction in the Court of Appeal. [Citations.]" (Adoption of Alexander S. (1988) 44 Cal.3d 857, 864, 245 Cal.Rptr. 1, 750 P.2d 778.) "The time for appealing a judgment [or appealable order] is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal. [Citation.]" (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56, 61 Cal.Rptr.2d 166, 931 P.2d 344.) "In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune [citations] . . . . If it appears that the appeal was not taken within the [relevant jurisdictional period], the court has no discretion but must dismiss the appeal of its own motion even if no objection is made. [Citations.]" (Estate of Hanley (1943) 23 Cal.2d 120, 123, 142 P.2d 423.) "If a notice of appeal is not timely, the appellate court must dismiss the appeal. ([Rule 2(b).]) The latest possible time within which a notice of appeal must be filed is 180 days after entry of judgment or entry of an appealable order. ([Rule 2(a)(3), (d)(3), & (f).])" (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 582, 120 Cal.Rptr.2d 213.)

Rule 2 provides:

"(a) Unless a statute or rule 3 provides otherwise, a notice of appeal must be filed on or before the earliest of:

"(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled `Notice of Entry' of judgment or a file-stamped copy of the judgment, showing the date either was mailed;

"(2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled `Notice of Entry' of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or

"(3) 180 days after entry of judgment.

"(b) Except as provided in rule 45.1, no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal. [¶] . . . [¶]

"(d) For purposes of this rule:

"(1) The entry date of a judgment is the date the judgment is filed under Code of Civil Procedure section 668.5, or the date it is entered in the judgment book.

"(2) The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed . . . . [¶] . . . [¶]

"(f) As used in (a) . . ., `judgment' includes an appealable order if the appeal is from an appealable order." (Italics added.)

Rule 3(d) provides:

"If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the earliest of:

"(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;

"(2) 90 days after the first motion to reconsider is filed; or

"(3) 180 days after entry of the appealable order." (Italics added.)

Because the minute order for the November 21, 2002 hearing directed Annette's counsel to prepare a written order for the trial court's approval, the court's oral ruling at the November 21 hearing awarding attorney fees to Annette, as reflected in that minute order, did not constitute the entry date of an appealable order for purposes of rule 2. (Rule 2(a), (d)(2); County of Alameda v. Johnson (1994) 28 Cal.App.4th 259, 261, fn. 1, 33 Cal.Rptr.2d 483.) Rather, the applicable entry date was March 17, 2003, when the trial court issued its written order reflecting its oral rulings at the November 21, 2002 hearing. (Rule 2(d)(2); County of Alameda, at p. 261, fn. 1, 33 Cal.Rptr.2d 483.) Accordingly, the...