In re Marriage of WALLACE LOY TIM and AMY JU WONG. ELIZABETH WONG, as Trustee, etc., Appellant, v. AMY JU WONG, Respondent.
G057202 (Super. Ct. No. 95D011667)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 3/7/19
CERTIFIED FOR PUBLICATION
Appeal from orders of the Superior Court of Orange County, Julie A. Palafox, Judge. Motion to dismiss appeal granted in part, denied in part.
Sitzer Law Group and Michael Ferdinand Sitzer; Blanchard Krasner & French and Mark A. Krasner; and Michael Leight for Appellant.
Seastrom Seastrom & Tuttle and Thomas W. Tuttle; Law offices of Marjorie G. Fuller and Marjorie Gross Fuller for Respondent.
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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) [nonpub. opn.] (Wong I); In re Marriage of Wong (Sep. 19, 2018, G056616) [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) [nonpub. opn.] (Wong IV); Wong v. Superior Court (March 7, 2019, G057297) [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
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
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.
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
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
“The existence of an appealable judgment [or order] is a jurisdictional prerequisite to an appeal.” (Jennings v. Marrelle (1994) 8 Cal.4th 121, 126.) Appellant asserts the orders are appealable as postjudgment orders (
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.” (
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.,
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. (
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
Thankfully, courts have clarified that
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. (
The Postjudgment Discovery Orders Here are not Appealable
As already noted, every postjudgment order is arguably appealable under
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 [immediately appealable]; Yolanda‘s Inc. v. Kahl & Goveai Commercial Real Estate (2017) 11 Cal.App.5th 509 [not immediately appealable]; Fox Johns Lazar Pekin & Wexler, APC v. Superior Court (2013) 219 Cal.App.4th 1210 [not immediately
For a situation like the instant one, “the better approach . . . is to treat such orders as not appealable. Allowing an appeal of each discovery order will invite unnecessary delay . . . .” (Yolanda‘s, supra, at p. 513.) This is discovery between adverse parties to an ongoing substantive dispute. Respondent is working toward a final determination of her request for order. (Roden v. AmerisourceBergen Corp. (2005) 130 Cal.App.4th 211, 215-218 [dismissing an appeal of a postjudgment discovery order because it was preliminary and preparatory to a later substantive ruling].) The parties’ discovery disputes along the way will be appealable as part of that final order. (Cf. SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 749-750 [treating appeal as writ petition to avoid difficult question of appealability where it did not appear there would be a “later determination from which an appeal” could be taken from the discovery order].) There is no need to allow an immediate appeal of these orders (or for that matter, to treat this appeal as a writ petition) to ensure appellant‘s ultimate right to appeal these orders.
The Joinder/Substitution Order is Not Immediately Appealable
The court separately issued an order stating: “1. Elizabeth E. Wong, as an individual, shall be joined in the above captioned Dissolution of Marriage action as a third-party claimant. [¶] Elizabeth E. Wong, as Successor in Interest to Petitioner Wallace Loy Tim Wong and as Successor Trustee of the Wallace L.T. Wong Separate Property Revocable Trust, shall be substituted in as Petitioner, Wallace L. T. Wong, now deceased.”
This order was deemed to be necessary due to the court vacating all prior orders of the judicial officer who was originally assigned to the case, which included a September 2017 order with identical language.
As discussed above, even if this is nominally a postjudgment order (
Despite the foregoing, appellant insists that this order is appealable and that it stays all proceedings in the trial court pending the resolution of this appeal per
First, she cites two cases in which postjudgment orders substituting representatives for a deceased party were immediately appealable. Neither case engages
Second, appellant cites cases in which orders were deemed to be appealable because they amounted to the final determination of the rights of a party. (Dominguez v. Alhambra (1981) 118 Cal.App.3d 237, 241 [order denying leave to amend complaint because it operated as a final determination of rights of a party in their role as administrator of estate]; Poon v. Poon (1966) 244 Cal.App.2d 746, 748, fn. 1 [denial of administrator‘s motion to substitute himself in as party to action]; Majors v. County of Merced (1962) 207 Cal.App.2d 427, 432 [“the refusal to permit a substitution of the administratrix finally eliminated her as a party and that . . . order therefore is to be treated as a final judgment from which an appeal can be taken“]; Culley v. Cochran (1932) 124 Cal.App. 730, 731-732 [plaintiff is entitled to appeal order removing named defendant from action in favor of indemnifier alone; order finally determined rights of the defendant named by plaintiff to plaintiff‘s asserted detriment].) Here, the challenged order had the effect of adding appellant to the ongoing proceedings, not eliminating her from the case. (See Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 489 [challenged substitution order was not appealable and was properly challenged by writ petition].) To the extent appellant is trying to challenge the “removal” of her deceased husband as a party, she has no standing to do so. (
Third, appellant claims an appeal is available now because the order gives effect to a void order (the previous one entered in September 2017 by a judicial officer who subsequently recused himself). None of the cases cited by appellant are on point. They concern discrete, completed efforts to vacate allegedly void orders, not (as here) interlocutory orders made during an ongoing process to determine the validity and enforceability of a judgment as applied to assets in dispute. (See, e.g., Betz v. Pankow (1993) 16 Cal.App.4th 931; In re Marriage of Goodarzirad (1986) 185 Cal.App.3d 1020; Valvo v. University of Southern California (1977) 67 Cal.App.3d 887.) To repeat a familiar refrain, appellant will be able to challenge all of the non-moot interlocutory orders issued in this case once there is a final resolution of the substantive dispute between the parties.
Fourth, appellant claims this order is equivalent to one amending a judgment to substitute a new judgment debtor. (See, e.g., Misik v. D‘Arco (2011) 197 Cal.App.4th 1065, 1071.) Whether the judgment provides for an additional transfer of property to respondent and whether appellant must honor that additional transfer are the very issues to be decided on the merits of this proceeding in the trial court. Respondent is certainly not authorized to seize assets from appellant immediately by reason of this joinder/substitution order.
Finally, appellant asserts this court should treat this appeal as a writ petition and resolve the question of whether she was properly added as a party to this family court action before the merits of the dispute are resolved. We decline to exercise our discretion to do so. The interests of judicial economy are best served here by finally resolving the dispute between the parties at the trial court and reviewing any assertions of error in a single appeal.
This appeal may proceed to the extent appellant seeks to challenge the December 10, 2018 orders granting a preliminary injunction to respondent and denying a preliminary injunction to appellant. On this court‘s own motion, the appeal is dismissed with regard to all other orders. If appellant chooses to maintain this appeal, her appellate briefing should be confined to the question of whether the trial court erred with regard to its injunctive relief rulings.