Archive for Appeal
Commentary by Stephen B. Ruben, CFLS
Mosley (2010)165 Cal.App.4th 1375 (CA 4/3 –
Opinion filed 12/10/10.)
The Mosely appellate decision answers a very important philosophical question addressing the filing and perfecting of an appeal. “If a tree falls in a forest and no one hears it, does it make a sound?” Should you be facing the filing of an appealable order, when does the clock run for taking and perfecting an appeal? Does the time run when the Court enters the order whether or not the order makes it into a Court file, must the order be in the file to confirm that the tree has fallen, or in our case the order has been entered?
Dawn Mosely, an attorney who put her career on hold to be a stay–at-home Mom, faced an incredible challenge in defending her former’s husband’ s effort to dismiss her appeal challenging the child and spousal support modification order. Despite her phone calls and personally reviewing the court file, there was no record of the final order in the court file. Only through the efforts of the Clerk’s office, did she discover that not only had the order been misplaced but had been time stamped beyond the outer jurisdictional limits for perfecting an appeal. To her credit, Dawn was able to secure a signed declaration from the Clerk of the Court taking responsibility that the order had been misplaced and extending the period for her taking and perfecting her appeal of this modified support order.
From my perspective as a family law practitioner, I was impressed with Dawn Mosley’s tenacity in getting a corroborating declaration from the Clerk admitting this major snafu, thereby preserving her rights to appeal. As we painfully know, our friendly Family Law Court Clerk’s office at times may not be so accommodating.
Keep in mind that the limited holding in Mosely is that if an appealable order is misplaced by the court and is neither served on the parties nor otherwise available to them, the presumption on the file-stamped date is rebutted. We now have a clear and direct decision giving us a clear time line for perfecting an appeal even if we do not hear the tree falling in the forest. An appeal is timely if filed within 180 days after the order is located, entered in the court’s records and properly served.
The Fourth Appellate Court was quite clear in stressing the narrow reach of this decision. A Judgment placed in a court file with a clerk “file stamped” before it was entered into the register of actions or the court’s electronic data processing system starts the calendar for purposes of filing a notice of appeal. Make sure you go into the forest (The Clerk’s office), pull the file, and confirm that the tree has fallen.
Stephen B. Ruben, CFLS
The importance of the Schleb case is that the Marketable Record Title Act “MRTA” extinguishes a stale recorded security agreement. It does not affect the Judgment Creditor from seeking an enforcement of the underlining Family Law Judgment. The Trial Court correctly found that while Betty Louise Stein could not enforce the note or deed of trust, Wayne was still on the hook for the balance due. Wayne attempted to invoke former Family Code section 291 in getting out of the balance owed Betty by claiming that Betty failed to enforce the collection of the note or deed of trust within ten years. However, this Appellate panel correctly held that family law money judgments are expressly exempted from this ten year renewal requirement in order to preserve a money judgment.” (FC § 291 (b).) The Appellate Court also effectively addressed the retroactivity provision of Family Code 4 Fellows issue (IRMO Fellows (2006) 39 Cal 4th 179, 186, 46 Cal Rptr, 49) by noting that there was no substantial interference by the newly enacted Family Code 291. Former Section 291 enacted in 2000 and the later version in 2006 made no substantial change in the enforcement of family law money judgments. The former provision of Section 291 expressly limited renewals of judgments for possession or sale of property and not money judgments.
The bottom line is that MRTA was enacted to simplify and facilitate real property title transactions by enabling persons to determine the status and security of recorded real property allowing title to be more freely alienable and marketable. However, MTRA was not enacted as a basis for nullifying a family law money judgment. Nice try, Wayne, however, it is time to pony up with interest.
Stephen B. Ruben, CFLS
In re Marriage of Herr is a must-read worth careful
analysis. Here, a compendium of errors were made, by both trial counsel and
the trial judge, who granted a motion for reconsideration to reduce child support
when no new facts or evidence was presented, much less in a timely manner.
We know the unpleasant task of counseling a client after
receiving an adverse ruling denying a motion to modify child support. We want
to give our client comfort and lessen the blow with potential post-trial remedies.
But too often family law practitioners do not appreciate the fundamentals for
seeking either a motion for reconsideration or a motion for new trial.
In Herr, the trial judge erroneously granted
a motion to reconsider sua sponte (on its own) irrespective that counsel for
Mark Herr failed to file either a motion for reconsideration or a motion for
new trial in a timely manner. Admittedly, a trial court has the inherent authority
to correct an erroneous ruling or order, but it has no authority to order a
new trial. However, in this case, after a two-day trial and as an accommodation
to the plight of Mark Herr, the Court directed that new declarations be prepared
because the “quality and reliability and accuracy” of the previous declarations
were questionable and the Court wanted competent evidence to support the parties’
respective positions. But then what was that trial? An illusion? In the apparent
spirit of fair play, the Court on its own effectively granted a motion for new
trial which it does not have the authority to do. The Court was strictly limited
to reconsidering the evidence presented and not setting the matter for a new
Before suggesting the possibility of a motion to reconsider
or for a new trial to family law clients, I strongly suggest first carefully
reading Code of Civil Procedure §1008 and determining if there are significant
factual differences, circumstances or changes in the law within the ten-day
statutory deadline following service of written notice of the entry of the order.
If not, there is simply no remedy. Similarly, a motion for a new trial is strictly
controlled by statutory provisions and must meet one of the grounds as set forth
in the Code of Civil Procedure §§656 and 657: (1) an irregularity of the proceedings
where one of the parties was not afforded a fair trial; (2) accident or surprise;
(3) newly-discovered evidence; (4) insufficiency of the evidence to justify
the Court’s decision or the decision was against the law and (5) error in law
occurring at the trial and excepted to by the moving party. A motion for a new
trial must be made within 15 days of the clerk’s mailing of notice of entry
or service by the party of notice of entry.
Counsel for Mark Herr filed his Motion for Reconsideration
fifty-six days later but was fortunate to have the receptive ear of Judge Golden
take this matter into his own hands and grant his own motion to reconsider irrespective
of Mark Herr’s failure to file timely or raise new facts. The Appellate Court
was not as generous and reversed, stating that Judge Golden had no power to
grant a new trial since Mark Herr’s motion was not timely filed and failed to
set forth any statutory grounds for the granting of a new trial.
In order to avoid the same adverse ruling that Mark Herr
received, we should all remember two things. First, be sure to meet the statutory
criteria for either a motion to reconsider or for a new trial. If not, advise
the client to move on and plan the next motion for support modification to be
based on changed circumstances substantially different than those that led to
the adverse ruling. Second, be aware that the Court has discretion to impose
sanctions for a frivolous motion or dilatory conduct under Family Code §271.
See Green v. Uccelli (1989) 207 CA 2d 1112-22, 255 Cr 15, 319-322.
Don’t give into the desire to comfort a client by filing a meritless motion.
Such an accommodation may result in an award of sanctions, attorneys’ fees,
or both. Mark Herr and his counsel were indeed fortunate. Keep in mind that
sanctions that exceed $1,000 must be reported to the State Bar. The results
could have easily been a denial of an untimely and meritless motion for new
trial or reconsideration along with sanctions under Family Code §271 and a bar
notification given the cost of defending a frivolous Motion for Reconsideration.
Must I say more? The lesson to be learned from Herr when seeking a
modification of support is to make sure you present all of your documentary
and testimonial evidence of change in circumstances at the hearing and do not
hope for another bite of the apple by filing a motion for reconsideration or
for a new trial unless you meet the strict statutory grounds and file in a timely