Filed 8/20/18 Malekian v. Al-Moosa CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

ROYA MALEKIAN,

Petitioner and Respondent,

v.

MOOSA AL-MOOSA,

Respondent and Appellant.

A154642

(Marin County Super. Ct.

No. FL1602968)

On June 27, 2018, Moosa Al-Moosa (appellant) filed a motion in this court pursuant to Code of Civil Procedure section 904.1, subdivision (a)(10), Family Code section 2025, and California Rules of Court, rule 5.392(d), to appeal an order on a bifurcated issue in this dissolution proceeding (Motion). Family Code section 2025 provides: “Notwithstanding any other provision of law, if the court has ordered an issue or issues bifurcated for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate. Certification by the court shall be in accordance with rules promulgated by the Judicial Council.” (Italics added.) Code of Civil Procedure section 904.1, subdivision (a)(10), confirms that an interim order made appealable by the Family Code may be immediately appealed. Finally, rule 5.392 of the California Rules of Court (rule 5.392) provides the procedural framework for the processing of such statutorily authorized interlocutory appeals. Specifically, as is relevant here, rule 5.392 provides that a motion to appeal a bifurcated issue “is deemed granted unless it is denied within 30 days from the date of filing the opposition or the last document requested by the court, whichever is later.” (Cal. Rules of Court, rule 5.392(e)(3).)

In the present case, respondent Roya Malekian filed an opposition to the Motion on July 6, 2018. We did not request any further documents from the parties. Indeed, we denied a subsequent request by appellant for permission to file a reply brief in further support of the Motion. We then considered the matter at some length, concluding that an interim review solely on the issue of domicile was not desirable. In particular, given the trial court’s need to resolve numerous additional, and likely contentious, issues involving custody and support prior to the final resolution of this case, we were not convinced that definitive determination of the domicile issue at this juncture would likely lead to settlement or otherwise conserve the resources of the court or the parties. We therefore exercised the discretion granted us by Family Code section 2025 to deny the Motion.

Unfortunately, due to a clerical oversight, this court’s denial was not physically filed until August 10, 2018. Prior to that date, on August 6, 2018, the Motion was “deemed granted” pursuant to rule 5.392, rendering our denial several days later ineffective. We therefore find ourselves with jurisdiction over this bifurcated matter. Nothing, however, has changed. Rather, we are still of the opinion that an interlocutory appeal is unwarranted on these facts. We therefore dismiss the present, discretionary appeal. In doing so, we clarify that nothing in this decision is intended in any way to limit the ability of either party to raise any valid issue—including the question of domicile—in a subsequent statutorily authorized appeal. (Cal. Rules of Court, rule 5.392(h) [failure to obtain appellate review of decision on a bifurcated issue does not preclude review upon appeal of the final judgment].)

DISPOSITION

The appeal is dismissed. Each party to bear their own costs.

_________________________

STREETER, ACTING P. J.

We concur:

_________________________

REARDON, J.

_________________________

SMITH, J.*

*Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.