Wong v. Wong (In re Loy Tim)

• Decision Date: 07 March 2019
• Docket Number: G057202
• Citation: 32 Cal.App.5th 1049,244 Cal.Rptr.3d 466
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE MARRIAGE OF Wallace LOY TIM AND Amy JU WONG. Elizabeth Wong, as Trustee, etc., Appellant, v. Amy Ju Wong, Respondent.

32 Cal.App.5th 1049

244 Cal.Rptr.3d 466

IN RE MARRIAGE OF Wallace LOY TIM AND Amy JU WONG.

Elizabeth Wong, as Trustee, etc., Appellant,

v.Amy Ju Wong, Respondent.

G057202

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

Filed March 7, 2019

Sitzer Law Group and Michael Ferdinand Sitzer, Newport Beach; Blanchard Krasner & French and Mark A. Krasner, La Jolla; and Michael Leight, Long Beach, for Appellant.

Seastrom Seastrom & Tuttle and Thomas W. Tuttle, Newport Beach; Law offices of Marjorie G. Fuller and Marjorie Gross Fuller, Fullerton, for Respondent.

OPINION

THE COURT:^*

This court has already issued two opinions as a result of appeals in this dispute, which has not yet reached a final determination on the merits at the trial court. (See In re Marriage of Wong (May 25, 2018, G056148, 2018 WL 2376598) [nonpub. opn.] (Wong I ); In re Marriage of Wong (Sep. 19, 2018, G056616, 2018 WL 4479527) [nonpub. opn.] ( Wong II ).) We issue three more opinions today, including this one (Wong III ). (See In re Marriage of Wong (March 7, 2019, G056616, 2019 WL 1075620) [nonpub. opn.] ( Wong IV ); Wong v. Superior Court (March 7, 2019, G057297, 2019 WL 1075623) [nonpub. opn.] ( Wong V ).)

In conjunction with Wong V , we once again conclude in this opinion that: (1) appellant Elizabeth Wong has appealed nonappealable orders; and (2) the trial court erred by staying its proceedings pursuant to Code of Civil Procedure section 916, subdivision (a).¹

In Wong II , we stated: "This court is not required to review every ruling made by trial courts on their way to deciding a request for relief, even if the request is made after a judgment is entered. And parties (particularly elderly parties entitled to trial preference) should not be blocked from a prompt adjudication of their claims by way of premature appeals and unfounded assertions of appellate stays under section 916, subdivision (a)."

Apparently, our intended message was not clear enough in Wong II . To put things more bluntly: (1) the trial court must proceed immediately with a trial on the merits; and (2) the trial court should exercise close scrutiny of any additional appellate stays of trial posited by appellant based on appeals from orders entered prior to a final disposition of the merits in this dispute.

FACTS AND PROCEDURAL BACKGROUND

The parties to this appeal are the first (respondent Amy Ju Wong) and second (appellant Elizabeth Wong) wives of Wallace Loy Tim Wong, who died in 2010. A marital settlement agreement between Wallace and respondent was entered as a judgment in 1996. Respondent contends that the 1996 judgment requires appellant to remit to respondent a portion of the proceeds from the sale of trust assets that occurred after the death of Wallace.

Respondent, using the original family law case number, filed a request for order seeking relief against appellant in 2016. Due to various procedural quagmires, the court has not provided a final ruling on the question of whether respondent is entitled to any of the proceeds. The jurisdictional issues to be decided in this opinion do not require a detailed recitation of the procedural history of this case or an examination of the state of the evidence concerning the merits issue.

On January 4 and January 9, 2019, appellant filed notices of appeal from orders entered on December 10, 2018. Trial was set for January 22, 2019. But, at appellant’s request, the trial court entered an order on January 23, 2019, ruling that trial court proceedings were stayed as a result of these appeals and the effect of section 916, subdivision (a).

This court promptly invited briefing from the parties regarding the appealability of the December 10 orders, and such briefing has been provided and considered.

ANALYSIS

Appellant purports to appeal from six separate orders entered on December 10, 2018: (1) a preliminary injunction freezing approximately $17.5 million; (2) an order refusing to grant appellant’s ex parte application for an order enjoining enforcement of the 1996 judgment; (3) and (4) two orders approving discovery referee reports and recommendations regarding discovery and related issues; (5) an order "re joinder" of appellant to the action; and (6) a minute order reflecting the other orders (which adds nothing to the appeal).

"The existence of an appealable judgment [or order] is a jurisdictional prerequisite to an appeal." ( Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 32 Cal.Rptr.2d 275, 876 P.2d 1074.) Appellant asserts the orders are appealable as postjudgment orders (§ 904.1, subd. (a)(2) ) and as orders granting and refusing to grant injunctive relief (§ 904.1, subd. (a)(6) ). The trial court agreed with appellant that its proceedings were stayed pending resolution of this appeal. ( § 916, subd. (a) ["Except as provided in [various statutory exceptions], the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order"].)

Injunctive Orders are Appealable

The first two orders are appealable, at least to the extent they challenge the granting or denying of injunctive relief. An appeal may be taken "[f]rom an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction." (§ 904.1, subd. (a)(6); see Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1081-1082, 116 Cal.Rptr.3d 343.)

It should be noted, however, that the appeal of an injunctive order does not result in a stay of trial court proceedings on the merits of the dispute. (See, e.g., § 916, subd. (a) ; Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 191, 25 Cal.Rptr.3d 298, 106 P.3d 958 ; URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 882, 887-888, 223 Cal.Rptr.3d 674.) The very purpose of the injunction freezing $17.5 million is to maintain the status quo while the merits of the dispute are sorted out by the trial court. Moreover, to the extent appellant was seeking a preliminary injunction of sorts with regard to the enforcement of the 1996 judgment, "an appeal from the denial of a preliminary injunction does not stay further trial court proceedings on the merits." ( Varian , supra , 35 Cal.4th at p. 191, 25 Cal.Rptr.3d 298, 106 P.3d 958.)

We question whether it makes sense to continue an appeal of these orders, given that the appeals may be mooted if the trial court proceeds promptly as instructed with a trial on the merits. But appellant may do so for now.

The Problem of Postjudgment Order Appealability

The remainder of the orders appealed in this case are asserted to be appealable postjudgment orders. Postjudgment orders are appealable. (§ 904.1, subd. (a)(2) [an appeal may be taken "[f]rom an order made after a judgment made appealable by paragraph (1)"].) The parties agree that the 1996 judgment was (in theory) appealable under section 904.1, subdivision (a)(1). (But see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 400-401, 87 Cal.Rptr.2d 453, 981 P.2d 79 [parties to a stipulated judgment cannot actually appeal from that judgment].)

The inconvenient fact for respondent is that every order in this case is nominally a postjudgment order. The problem arising from postjudgment order appealability is that parties interested in slowing proceedings down to a crawl can file a notice of appeal under section 904.1, subdivision (a)(2), from every order entered by the trial court and assert that a stay of trial court proceedings is required until the appeal can be decided. The problem is compounded by trial courts’ reluctance to risk violating section 916, subdivision (a).

Thankfully, courts have clarified that section 904.1, subdivision (a)(2) does not really authorize an appeal from every postjudgment order. Instead, orders entered after an appealable judgment must pass three additional tests: (1) the issue is different from the issues decided in the judgment; (2) the order affects the judgment or relates to its enforcement; and (3) the order is not "preliminary to a later judgment." ( Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-652, 25 Cal.Rptr.2d 109, 863 P.2d 179 ; see also In re Marriage of Levine (1994) 28 Cal.App.4th 585, 589, 33 Cal.Rptr.2d 559 ["an essential element of an appealable postjudgment order is that the order be one which is not preliminary to later proceedings"].)

As in Wong II , the third test is of particular relevance and will be discussed below. None of these orders are the equivalent of a final appealable judgment, i.e., a judgment (or order) that actually resolves the question of whether and in what form relief will be provided to respondent pursuant to her request for order that provides the reason for the existence of these postjudgment proceedings. (§ 904.1, subd. (a)(1).) There remain additional issues for the trial court to decide. Indeed, there are no procedural obstacles to bar the trial court from modifying the findings of fact and rulings it has made in this dispute so far. Even assuming the factual findings and rulings made thus far stand, they can be appealed as part of an appeal from the trial court’s final ruling on respondent’s request for order.

The Postjudgment Discovery Orders Here are not Appealable

As already noted, every postjudgment order is arguably appealable under section 904.1, subdivision (a)(2). Thus, even though discovery orders are a classic example of a nonappealable order ( Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1432-1433, 133 Cal.Rptr.3d 465 ), the appealability of postjudgment discovery orders is a difficult question.

Courts have recently wrestled with this issue in the context of third party discovery orders sought in judgment enforcement proceedings. They are split in their results, based on the differing circumstances presented. (See Finance Holding Co., LLC v. The American Institute of Certified Tax Coaches, Inc. (2018) 29 Cal.App.5th 663, 240 Cal.Rptr.3d 604 ...