Marriage of Lin CA4/3
225 Cal. App. 4th 471
| Cal. Ct. App. | 2014Background
- Appellant Augustin Lin and Respondent Gina Lin were in marital dissolution proceedings; the trial court issued a domestic violence restraining order (DVRO) for Respondent on July 19, 2013.
- Appellant and his counsel were personally present in court when the DVRO was issued.
- No party or clerk filed or served a file-stamped copy of the DVRO or a Notice of Entry showing a service date in the record.
- Appellant filed a notice of appeal 119 days after the DVRO was filed.
- Respondent moved to dismiss the appeal as untimely under the 60-day rule; Appellant argued the outside 180-day limit applies.
- The deputy clerk later filed a declaration saying she handed the corrected restraining order to Appellant’s counsel but did not recall if Appellant was present when handed; the declaration was submitted while the appeal was pending.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Appellant’s personal presence in court when the DVRO was issued (or the clerk handing a copy in court) triggers the 60‑day appeal period under Rule 8.104 | Respondent: presence in court constitutes service under Family Code §6384 and Judicial Council form DV‑130, so 60‑day period applies | Appellant: no valid service or proof of service under Rule 8.104, so 180‑day outside limit applies | Court: 180‑day outside limit applies; personal presence/enforceability under Fam. Code §6384 does not satisfy Rule 8.104 service requirement to shorten the appeal period |
| Whether a post‑hoc clerk declaration can retroactively start the 60‑day clock | Respondent: clerk’s declaration establishes service and triggers 60‑day clock | Appellant: after‑the‑fact declaration cannot shorten or retroactively trigger the 60‑day period | Court: post‑fact clerk declaration cannot retroactively start the 60‑day period; strict, documentary proof (file‑stamped judgment with proof of service) is required |
Key Cases Cited
- Alan v. American Honda Motor Co., 40 Cal.4th 894 (Supreme Court) (court refused to require parties to infer service from multiple documents; strict compliance with notice rules)
- In re Marriage of Mosley, 190 Cal.App.4th 1096 (court favors interpretations that preserve the right to appeal; 180‑day outside limit is jurisdictional)
- Thiara v. Pacific Coast Khalsa Diwan Society, 182 Cal.App.4th 51 (proof of service requirement is mandatory; cover letters or informal materials do not trigger the 60‑day clock)
- 20th Century Ins. Co. v. Superior Court, 28 Cal.App.4th 666 (rules measuring jurisdictional time limits must be applied without embellishment)
- E.M. v. Los Angeles Unified School Dist., 194 Cal.App.4th 736 (a party’s waiver of notice does not substitute for the formal service required to shorten appeal periods)