Marriage of Macfarlane & Lang, In re

• Decision Date: 21 July 1992
• Docket Number: Nos. A055215,A055218,s. A055215
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Joy Macdonald MACFARLANE and Arthur J. Lang. Joy Macdonald MACFARLANE, Appellant, v. Arthur J. LANG, Respondent.

Page 157

10 Cal.Rptr.2d 157

8 Cal.App.4th 247

In re the MARRIAGE OF Joy Macdonald MACFARLANE and Arthur J. Lang.

Joy Macdonald MACFARLANE, Appellant, v. Arthur J. LANG, Respondent.

Nos. A055215, A055218.

Court of Appeal, First District, Division 3, California.

July 21, 1992.

Rehearing Denied Aug. 12, 1992.

Review Denied Nov. 12, 1992.

Bernard N. Wolf, San Francisco, M. Lee Hunt, Hunt, Oliver & Berkov, San Rafael, for appellant.

Robert J. Cleek, Novato, for respondent.

CHIN, Associate Justice.

These consolidated appeals ¹ arise from appellant Joy Macdonald Macfarlane's attempts

                to dissolve her marriage with respondent Arthur J. Lang.  In action No. A055218, Macfarlane appeals after the denial of her motion to vacate an order dismissing her initial dissolution petition for failure to bring it to trial within five years.  (Code Civ.Proc., §§ 583.310, 583.360.) 2  In action No. A055215, she appeals the granting of Lang's motion to quash in a second dissolution proceeding she filed after the dismissal of her first petition.  We find that, because there was a partial trial of the initial petition, it was error to dismiss that petition under the five-year statute.  Therefore, we reverse in action No. A055218.  Our reversal of the dismissal of the initial petition moots the second petition and the appeal in action No. A055215.  However, rather than simply dismiss that appeal, we reverse the order and remand with instructions to dismiss the second petition
                

FACTUAL AND PROCEDURAL BACKGROUND

On October 11, 1985, Macfarlane filed a petition for dissolution of her 14-year marriage to Lang. Lang moved for bifurcation of the proceedings and for judgment on the issue of dissolution of marital status. On April 15, 1987, the court granted the motion and, after the parties presented evidence, ordered termination of the marriage and reserved jurisdiction over all other issues. The accompanying judgment provided for termination "Forthwith."

Pursuant to its reservation of jurisdiction, the court, again at Lang's request, held separate hearings on two of the remaining issues. On November 8, 1988, the court took evidence, by declaration, on the issue of whether the parties had entered into a transmutation agreement and determined that they had not. On September 29, 1989, the court took evidence, by the sworn testimony of Macfarlane and Lang, regarding the validity of certain quitclaim deeds that Macfarlane had executed. It later rendered judgment on this issue. Macfarlane noticed an appeal from this judgment in February 1990, sought certification of probable cause for immediate appellate review, and filed an unsuccessful petition for writ of mandate and/or prohibition following the trial court's denial of her certification motion. We dismissed her appeal as being from a nonappealable interlocutory order.

On November 5, 1990, Lang moved under sections 583.310 and 583.360 for dismissal of the dissolution petition for failure to bring the matter to trial within five years. Superior Court Commissioner Shapiro heard the motion on December 11, 1990. On February 14, 1991, the court mailed the parties Commissioner Shapiro's unsigned minute order granting the motion. On April 10, Commissioner Shapiro filed a signed order of dismissal.

On May 8, 1991, Macfarlane filed a new petition for dissolution of marriage. Lang moved "to quash the proceeding and dismiss entirely with prejudice" on the ground that, by virtue of the April 1987 judgment terminating the parties' marital status, there was no marriage for the court to dissolve. At the initial hearing on the motion, Superior Court Commissioner Grove suggested that Commissioner Shapiro's previous dismissal was void for two reasons: (1) tolling during Macfarlane's appeal from the ruling on the validity of the quitclaim deeds; and (2) partial trial of property issues. Therefore, Commissioner Grove continued Lang's motion to quash to enable Macfarlane to move to vacate the prior dismissal.

Macfarlane thereafter moved under section 473 to vacate the order of dismissal as void, asserting the two grounds Commissioner Grove discussed. Commissioner Shapiro, however, did not reach the merits of these arguments because she concluded that (1) even if Macfarlane was correct, the dismissal was simply erroneous and not void, and (2) Macfarlane's failure to appeal from the dismissal was "fatal to her renewed The parties reappeared before Commissioner Grove for hearing on the motion to quash. She granted the motion, finding that Macfarlane could not initiate a new dissolution action because the court had already dissolved the marriage. On September 20, Commissioner Grove filed an order granting the motion to quash. In action No. A055215, Macfarlane appeals this order.

                request to set aside the Order of Dismissal."   On September 5, 1991, Commissioner Shapiro filed a signed order denying the motion to vacate.  Following this ruling, Macfarlane noticed her appeal in action No. A055218
                

DISCUSSION

Scope of Appeal in Action No. A055218

Initially, we must determine the scope of appeal in action No. A055218, which involves the dissolution petition that Commissioner Shapiro dismissed under the five-year statute. In her notice of appeal in this action, Macfarlane states that she is appealing "from the judgment entered on September 5, 1991 ... which adjudges that Petitioner's Motion to Vacate the Judgment of Dismissal is denied." Lang contends that the denial of the motion to vacate is not appealable "in this instance because the § 583.310 CCP dismissal constituted a directly appealable final judgment and the period in which to perfect its appeal has expired. [Citations.]" Macfarlane contends that the denial of the motion to vacate is appealable because the order of dismissal was void. Alternatively, she asks us "to construe her notice [of appeal] to be from the original dismissal order...."

We need not determine whether, under the circumstances of this case, the order denying the motion to vacate is appealable because we grant Macfarlane's request to construe her notice of appeal as being from the order of dismissal. An appellate court will liberally construe a notice of appeal in favor of its sufficiency so as to permit, if possible, a hearing on the merits. (Cal.Rules of Court, rule 1(a); Collins v. City & Co. of S.F. (1952) 112 Cal.App.2d 719, 722, 247 P.2d 362.) Applying this rule, the court in Holden v. California Emp. etc. Com. (1950) 101 Cal.App.2d 427, 429-431, 225 P.2d 634, construed a notice of appeal that designated an unappealable judgment as being from the underlying appealable order of dismissal. The court explained: "Where it is perfectly apparent ... that appellant seeks a review of an order of dismissal, and where ... the notice of appeal is filed in ample time from either the entry of the order or judgment, and where ... the notice of appeal is addressed to all respondents and to their attorneys so that no one is misled, and where ... no prejudice to respondents exists, the notice of appeal should be treated as being from the appealable order...." (Id., at p. 431, 225 P.2d 634.) Similarly, in Hohn v. Hohn (1964) 229 Cal.App.2d 336, 339, 40 Cal.Rptr. 125, the court construed a notice designating an unappealable order as an appeal from the subsequent judgment because the notice "seems to have been intended to reach whatever was appealable...." (See also Luz v. Lopes (1960) 55 Cal.2d 54, 59-60, 10 Cal.Rptr. 161, 358 P.2d 289 [construing notice designating an unappealable order and all adverse orders and rulings as an appeal from the underlying order of dismissal]; In re Marriage of Barnes (1978) 83 Cal.App.3d 143, 148, 147 Cal.Rptr. 710 [construing notice designating unappealable order as from subsequent formal order].)

We find it appropriate here to construe the notice of appeal, which designates the order denying the motion to vacate, as being from Commissioner Shapiro's April 10 order of dismissal. It is readily apparent that Macfarlane was seeking review of the dismissal. She filed the notice within the time required for an appeal from the April 10 order. ³ Finally, we perceive no prejudice to Lang in treating Macfarlane's notice as from the order of dismissal. Lang does not even argue to the contrary. ⁴ Accordingly, we will treat action No. A055218 as an appeal from the order of dismissal.

Partial Trial Satisfied the Five-Year Statute

Turning to the merits of Macfarlane's appeal in action No. A055218, we agree that Commissioner Shapiro erred in dismissing the action under the five-year statute. Section 583.310 requires that an action be "brought to trial" within five years after a plaintiff commences it. This statute "only requires that the action be brought to trial within the five-year period, and places no limitation upon when the trial shall be completed." (Neil v. Gane (1932) 124 Cal.App. 51, 56, 12 P.2d 131, original emphasis [former § 583].) Thus, once trial commences, the statute no longer applies, "even though the proceedings amount only to a partial hearing. [Citation.]" (Bella Vista Dev. Co. v. Superior Court (1963) 223 Cal.App.2d 603, 607, 36 Cal.Rptr. 106 [former § 583]; see also Berri v. Superior Court (1955) 43 Cal.2d 856, 861, 279 P.2d 8 ["partial trial of an action will take the case out of the operation" of the five-year statute].)

Courts have given a variety of explanations for when an action has been "brought to trial" for purposes of the five-year statute. "A 'trial' is the examination before a competent tribunal, according to the law of the land, of questions of fact or of law put in issue by pleadings, for the purpose of determining the rights of the parties. [Citations.]" (Adams v. Superior Court (1959) 52 Cal.2d 867, 870, 345 P.2d 466; see also Berri v. Superior Court, supra, 43 Cal.2d at p. 859, 279 P.2d 8 [trial "is the determination of an issue of law or fact"].) Thus, an action has been brought to trial if there "is a trial of issues of...