Filed 1/24/20 Marriage of Bloomfield CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of KRISTEN AND SHANE BLOOMFIELD.

KRISTEN BILLS,

Respondent,

v.

SHANE BLOOMFIELD,

Appellant.

E069970

(Super.Ct.No. FAMSS1105048)

OPINION

APPEAL from the Superior Court of San Bernardino County. Steven J. Singley, Judge. Appeal dismissed.

Holstrom, Block & Parke and Ronald B. Funk for Appellant.

Bowler & Bowler and E. Toby Bowler for Respondent.

In 2012, the trial court dissolved the marriage of Shane Bloomfield and Kristen Bills (formerly Kristen Bloomfield). The court entered a judgment on reserved issues in 2013 and ordered Bloomfield to pay child and spousal support. In 2017, Bloomfield requested that the court modify his child and spousal support obligations. After a two-day trial on his request for order (RFO), the court issued a written ruling increasing Bloomfield’s spousal support payments, decreasing his child support payments, and awarding attorney fees to Bills. We conclude that Bloomfield’s appeal from that ruling is untimely and dismiss the appeal.

BACKGROUND

The bench trial on Bloomfield’s RFO took place on October 4 and 5, 2017. Trial commenced at 10:00 a.m. on October 4. The court recessed for lunch at 11:55 a.m., reconvened at 1:30 p.m., and recessed for the day at 4:22 p.m. The following day, court reconvened at 8:30 a.m. At 9:25 a.m., the court excused the last witness, and Bloomfield presented his closing arguments. At 9:44 a.m., Bills presented her closing arguments. The record does not reveal precisely when her closing arguments concluded, but they constitute approximately 12 pages of the reporter’s transcript, while Bloomfield’s closing arguments constitute approximately 11 pages. Immediately after Bills’s closing arguments, the court stated that it would issue its ruling by mail and took the matter under submission.

On October 30, the court signed and entered an eight-page “Ruling on Submitted Matter.” (Some capitalization omitted.) The court clerk served the ruling on the parties on that date. On November 15, Bloomfield filed objections to the ruling. The objections argued that the ruling was akin to a proposed statement of decision, and Bloomfield therefore had the right to object to the ruling under rule 3.1590(g) of the California Rules of Court. Bills responded that Bloomfield had no right to object. She argued that the ruling was not a proposed statement of decision because Bloomfield had waived the right to one. More precisely, she argued that because the parties had completed the trial in fewer than eight hours, Bloomfield was required to request a statement of decision before the court submitted the matter, and he had not. The court did not respond to Bloomfield’s objections.

Bills submitted Judicial Council form FL-340 (Findings and Order After Hearing) and related form attachments to the court. The forms reiterated the court’s findings and orders in the eight-page ruling of October 30. On December 7, the court signed and entered the form order.

The register of actions shows a failed attempt to file form CIV-130 (Notice of Entry of Judgment or Order) on December 18. The court clerk apparently rejected the notice of entry because it was not a family law form. Bloomfield asserts that Bills served him with notice of entry of the form order on December 15. He filed his notice of appeal on February 6, 2018, purporting to appeal from the December 7 form order.

DISCUSSION

Bills contends that we should dismiss this appeal as untimely. She argues that service of the court’s written ruling started the period for filing a notice of appeal. We agree.

A postjudgment order modifying child support or spousal support is appealable. (Code Civ. Proc., § 904.1, subd. (a)(2); In re Marriage of Utigard (1981) 126 Cal.App.3d 133, 146.) As applicable here, the notice of appeal must be filed within 60 days after the court clerk serves a “filed-endorsed copy” of the appealable order. (Rule 8.104(a)(1)(A), (e).) If the court enters an appealable order disposing of all issues between the parties and does not direct the preparation of a further order or judgment, the entry of a later order “making the same decision” does not restart or extend the time to appeal. (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 583; accord, In re Marriage of Adams (1987) 188 Cal.App.3d 683, 689 [minute order denying wife’s motion constituted an appealable order, and entry of a later written order prepared by husband’s counsel did not extend the time to appeal, “since preparation of a written order was not required by the minute order”].)

“Only a timely filed notice of appeal can invoke the jurisdiction of the appellate court. The court can neither confer jurisdiction to hear an appeal without a proper notice nor extend the time for filing the notice. [Citation.] There is no relief from late filing.” (In re Marriage of Adams, supra, 188 Cal.App.3d at p. 689.)

In this case, the court’s eight-page ruling constituted the appealable order. It disposed of all matters at issue, was signed by the court, and nowhere indicated that it was tentative or otherwise nonfinal. It did not direct either party to prepare a further order. The court clerk file-stamped the ruling on October 30 and served the ruling on the same date. The court’s later entry of the form order, which merely repeated the findings and orders in the ruling, did not restart the time to appeal. Accordingly, the time to appeal started running on October 30. Bloomfield filed his notice of appeal 99 days later. This appeal is thus untimely and must be dismissed.

Bloomfield argues that, by operation of law, the court’s eight-page ruling was a tentative decision, and it therefore was nonappealable. He relies on rule 3.1590(a), which states that “[o]n the trial of a question of fact by the court, the court must announce its tentative decision by an oral statement, entered in the minutes, or by a written statement filed with the clerk.” He argues that because the court “must” issue a tentative decision, only the written ruling could have qualified as one—the court did not announce an oral ruling.

Bloomfield reads rule 3.1590(a) in isolation, but read in context, the tentative decision requirement does not apply to this case. Rule 3.1590 implements section 632. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 982; Bevli v. Brisco (1985) 165 Cal.App.3d 812, 820, fn. 1 [referring to former rule 232, which was renumbered rule 3.1590].) Section 632 does not expressly require a court to issue a tentative decision. Under section 632, a court trying a question of fact must issue a statement of decision if a party timely and properly requests such a statement. When the trial concludes “within one calendar day or in less than 8 hours over more than one day,” the party must request the statement of decision before the court submits the matter. (§ 632.) For longer trials, the party must request the statement of decision “within 10 days after the court announces a tentative decision.” (Ibid.) Rule 3.1590 likewise provides that “[w]hen a trial is completed within one day or in less than eight hours over more than one day, a request for statement of decision must be made before the matter is submitted for decision.” (Rule 3.1590(n).) But for longer trials, the request must be made “[w]ithin 10 days after announcement or service of the tentative decision.” (Rule 3.1590(d).)

Under this scheme, the purpose of the tentative decision is to start the time running on a request for a statement of decision. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 152.) If the trial lasted fewer than eight hours—as it did here—and no party requests a statement of decision before submission of the matter—as occurred here—then a tentative decision is unnecessary. (See Moore et al., Cal. Civil Practice Procedure (2019) § 28:19 [the requirement of a tentative decision does not apply to trials completed within one calendar day or eight hours].) In other words, the obligation to issue a tentative decision in rule 3.1590(a) applies only when the statement of decision process has been triggered.

The history of amendments to rule 3.1590 supports this interpretation. Subdivision (k) of the rule formerly stated: “This rule does not apply if the trial was completed within one day.” Thus, the statement of decision process set forth in the rule—including the announcement of a tentative decision—clearly did not apply to one-day trials. Effective January 1, 2010, the Judicial Council relettered subdivision (k) to subdivision (n) and changed the language to its current form: “When a trial is completed within one day or in less than eight hours over more than one day, a request for statement of decision must be made before the matter is submitted for decision . . . .” This amendment brought the language in line with section 632. But there is no indication that, by amending the rule in this manner, the Judicial Council intended to impose a tentative decision requirement in all cases regardless of the length of the trial. Neither the rule nor the Code of Civil Procedure had historically required one for short trials.

Bloomfield also argues that Bills’s submission of the form order shows that she considered the ruling to be a tentative decision. He asks: “Why would [her] counsel go to the trouble of preparing and serving [the forms] if there was already a final order?” First, for the reasons already discussed, the form order did not restart the time to appeal, regardless of Bills’s reason for submitting the form order. Second, to the extent that Bloomfield means Bills is estopped from challenging the timeliness of the appeal, the argument is unavailing. We may not excuse a late notice of appeal on the basis of estoppel. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674; accord, id. at p. 667 [“[It] is immaterial whether . . . the parties seeking to dismiss are acting in good faith or not”].)

DISPOSITION

The appeal is dismissed. Bills shall recover her costs of appeal. (Rule 8.278(a)(1)-(2).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J.

We concur:

MILLER

Acting P. J.

FIELDS

J.