Filed 4/28/20 Marriage of Rostam CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT
In re the Marriage of SHARLET and JOSEPH ROSTAM.

SHARLET ROSTAM,

Respondent,

v.

JOSEPH ROSTAM,

Appellant;

DEPARTMENT OF CHILD SUPPORT SERVICES,

Respondent.

F076765

(Super. Ct. No. 430651)

OPINION
THE COURT*

APPEAL from orders of the Superior Court of Stanislaus County. Kenneth J. Hara, Commissioner.

Joseph Rostam, in pro. per., for Appellant.

Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Linda M. Gonzalez and Monique S. Seguy, Deputy Attorneys General, for Respondent Department of Child Support Services.

No appearance for Respondent Sharlet Rostam.

-ooOoo-

Appellant Joseph Rostam (Father) challenges four orders entered by the trial court in this dissolution action. We conclude he has not demonstrated prejudicial error in any of the challenged orders. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This is a dissolution proceeding in which a judgment of dissolution was entered on May 26, 2010. In August 2014, the trial court entered a domestic violence restraining order, ordering Father to stay away from respondent Sharlet Rostam (Mother). Many child custody and child support orders were entered in the proceeding. Mother was granted sole legal and sole physical custody, with reasonable visitation for Father. Father was ordered to pay child support; some of the child support orders provided that all support payments were to be made through the Department of Child Support Services (DCSS) and authorized a wage assignment.

Father repeatedly objected to a court commissioner conducting proceedings in the matter, and filed repeated peremptory challenges against the commissioner and the judge assigned to the case. On December 4, 2017, Father filed a notice of appeal, listing the dates of four orders being appealed. His subsequent notice designating the record on appeal gave a different date as the date of the order appealed from. The conclusion of Father’s opening brief requests that 18 orders, identified by dates ranging from November 2010 to November 2017, be rescinded.

DISCUSSION

I. Notice of Appeal and Appealability

To appeal from a superior court judgment or appealable order, a party must serve and file a timely notice of appeal. (Cal. Rules of Court, rules 8.100(a)(1), 8.104(a).) The normal time for filing a notice of appeal is within 60 days after the superior court clerk serves a notice of entry of judgment on the parties, within 60 days after a party serves a notice of entry of judgment, or within 180 days after entry of the judgment, whichever is earliest. (Rule 8.104(a)(1).) The term “judgment,” in this context, refers to a judgment or an appealable order. (Rule 8.10(4).) No court may extend the time to file a notice of appeal; if the notice is not timely filed, the reviewing court must dismiss the appeal. (Rule 8.104(b).) Consequently, we cannot review any order as to which a notice of appeal was not timely filed.

The notice of appeal in this case was filed on December 4, 2017. In the absence of an applicable exception to the normal rule, the notice of appeal was timely at most as to orders entered within 180 days before that date; that is, on or after June 7, 2017.

The notice of appeal must identify the particular judgment or order being appealed. (Rule 8.100(a)(2).) “The notice of appeal must be liberally construed.” (Ibid.)

Father’s notice of appeal specified four orders that were being appealed, “and all orders thereafter.” The dates given for the orders appealed were: August 9, 2017, September 27, 2017, October 25, 2017, and November 17, 2017. The record contains orders with the first three dates, but none bearing the November 17, 2017 date.

As to the purported appeal of “all orders thereafter,” we note a party can only appeal from a judgment or order that has already been entered, or at least rendered, at the time the notice of appeal is filed. A party cannot appeal prospectively from orders that have not yet been made. Consequently, at most, we could construe the phrase “all orders thereafter” as encompassing orders made between November 17, 2017, and December 4, 2017, the date the notice of appeal was filed. The only order in the record between those dates is a November 29, 2017 order denying a request Father made in a document entitled “Notice of Demand, Writ of Habeas Corpus to Void a Void Order, Coram Non judice .…” (Some capitalization omitted.) We will liberally construe the notice of appeal as encompassing the November 29, 2017 order.

The appellant’s opening brief must state “the judgment or order appealed from” and “[s]tate that the judgment appealed from is final, or explain why the order appealed from is appealable.” (Rule 8.204(a)(2)(A) & (B).) The portion of Father’s opening brief addressing appealability does not clearly identify the order or orders appealed from or explain why they are appealable. It states the appeal is from the judgment, without citing us to any judgment in the record. The conclusion of the brief lists 18 orders Father wants reversed.

In this appeal, we will review the four orders listed in Father’s notice of appeal, substituting the November 29, 2017 order for the November 17, 2017 order actually listed; these are the orders Father gave notice he was appealing and the notice of appeal appears timely as to them.

II. Orders Appealed

The August 9, 2017 order indicated neither party was present and continued the hearing on Father’s motion for modification of a prior child support order and request for attorney fees (filed on May 22, 2017) to allow all parties to be present. It provided that, pending further order of the court, existing orders would continue in effect. The September 27, 2017 order reflected the continued hearing of the same request for modification of child support. According to the order, Father made a timely objection to the commissioner hearing the matter as a temporary judge. The matter was continued because Father’s attorney had a court conflict and could not be present. Father requested that the matter be dropped, but Mother and DCSS wished to have it heard. Mother requested a continuance for Father’s attorney to be present.

The October 25, 2017 order reflected the next continued hearing of the same request for modification of child support. Mother (in propria persona) was present; Father and his attorney were not. The trial court set child support at $1,107 per month, using “the DissoMaster/Guideline Calculator printout.” It stated the guideline was prepared using Mother’s income and Father’s income from his June 14, 2017 income and expense declaration. The order noted neither Father nor his attorney was present to object to the commissioner acting as a temporary judge, so the commissioner heard the matter and issued the order. The order also included a wage assignment and a requirement that all payments be made through DCSS.

III. Father’s Argument

On appeal, the judgment is presumed correct and the burden is on the appellant to affirmatively demonstrate error. (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.) The appellant must raise claims of reversible error and present argument and authority on each point made. (In re Sade C. (1996) 13 Cal.4th 952, 994.) The appellant also bears the burden of providing an adequate record to demonstrate the claimed error. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)

An appellant’s brief must “[p]rovide a summary of the significant facts limited to matters in the record” (rule 8.204(a)(2)(C)), “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority” (rule 8.204(a)(1)(B)), and support each reference to matter in the record by citation to the page of the record on which it appears (rule 8.204(a)(1)(C)).

The court may disregard assertions that are not made as part of a properly headed argument. (Roberts v. Lomanto (2003) 112 Cal.App.4th 1553, 1562; Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114.) “The purpose of requiring headings and coherent arguments in appellate briefs is ‘to lighten the labors of the appellate [courts] by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.’ ” (Opdyk v. California Horse Racing Board (1995) 34 Cal.App.4th 1826, 1830, fn. 4.)

Father’s opening brief sets out the history of the proceeding, and complains of the course of the litigation, without focusing on the four orders currently being appealed. The headings do not address those orders; there is no organized argument, supported by citations to legal authority and to the record, to explain what error he believes the trial court made in rendering those orders.

The main heading in the argument section of Father’s opening brief is: “Sharlet Rostam Was Given Implied Consent to Enter the House and Thus Her Entry Was Not ‘Wrongful.’ ” (Some capitalization omitted.) One subheading is “No evidence of Wrongful Entry.” None of the orders being appealed involved any entry into a house, or any consent to such an entry. The discussion under the subheading “The Standard of Review” does not discuss the standard of review applicable to our review of the orders being appealed. Thus, Father has not presented any coherent, organized argument identifying and demonstrating any error in the four orders being appealed. We have, however, found certain paragraphs of Father’s opening brief that discuss each of the orders. We address the arguments made in those paragraphs.

IV. Continuance Orders

The August 8, 2017 order and the September 27, 2017 order were orders continuing the hearing of Father’s request for modification of child support. “ ‘A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment.’ [Citation.] ‘A trial court’s order is appealable when it is made so by statute.’ [Citation.] No statute authorizes an appeal from an order continuing a hearing.” (Century 21 Chamberlain & Assoc. v. Haberman (2009) 173 Cal.App.4th 1, 11.) Thus, a continuance order is not directly appealable.

When the ruling on a request for continuance is reviewable in an appeal from the judgment, the standard of review is abuse of discretion. (Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1438.) Even if the continuance orders may be reviewed in this appeal, we have not found any argument in Father’s briefs that demonstrates the trial court abused its discretion by continuing the hearing. The August 8, 2017 order indicates both parties and Father’s attorney were unavailable or absent from the hearing. The September 27, 2017 order indicates Mother and Father were present, but Father’s attorney was not. A continuance was ordered so Father’s attorney could be present. Father has not presented any argument, supported by legal authority and facts in the record, showing that the trial court abused its discretion by continuing the hearing so the parties and Father’s attorney could be present; he also has not demonstrated that he was prejudiced in any way by the continuances.

Consequently, Father has not established any prejudicial error in the first two orders from which he appealed.

V. Child Support Order

The October 25, 2017 order modified child support by increasing the amount Father was required to pay. The order indicates neither Father nor his attorney was present at the hearing. The amount the trial court ordered was based on “the DissoMaster/Guideline Calculator printout,” and the trial court calculated it using Mother’s income and Father’s income from his June 14, 2017 income and expense declaration, “as it stated it would in the court order of 6/28/17.” The pertinent printout is attached to the order. The argument we distill from Father’s briefs concerning this order is that the trial court falsified his earnings to create a falsified guideline calculation that increased his child support obligation.

An appellant must raise claims of reversible error and present argument, legal authority, and facts in the record to support each point made. (In re Sade C., supra, 13 Cal.4th at p. 994; Nielsen v. Gibson, supra, 178 Cal.App.4th at p. 324.) If the appellant fails to do so, the point is forfeited. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Nielsen, supra, at p. 324.) Father has not demonstrated, using the facts and documents in the record, that the trial court used any false information in calculating the child support. He does not challenge the accuracy of his own June 14, 2017 income and expense declaration; that document is not included in the appellate record. He has not demonstrated the figures appearing in the printout as Father’s income and expenses differed from those included in his June 14, 2017 income and expense declaration. He does not assert he filed a subsequent income and expense declaration containing updated information, but the trial court failed to use that information in its calculation. In his reply brief, Father asserts the trial court found his “net monthly disposable income to be $4,490 when it should be $1,700 which the difference is the credit card revolving loan of $2,790.” He does not cite any authority or anything in the record establishing that the figures used by the trial court in its calculation were incorrect.

Consequently, Father has failed to demonstrate any error in the October 25, 2017 child support order.

VI. The November 29, 2017 Order

The November 29, 2017 order provided: “The filing of the Request for Order for ‘NOTICE OF DEMAND, WRIT OF HABEAS CO[R]PUS TO VOID A VOID ORDER, CORAM NON-JUDICE 28 USC SECTION 1655, 1691, 453 AND 2072’ is hereby denied pursuant to California Code of Civil Procedure section 128.7.” It then quoted a portion of that section: “Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney’s individual name .… An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.”

Code of Civil Procedure section 128.7, subdivision (a), provides in its entirety:

“Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.” (§ 128.7, subd. (a).)

Father complains he was not given a hearing date for his Notice of Demand, and asserts section 128.7 does not apply to his pleading. Father has not demonstrated, with legal authority and facts in the record, why this section does not apply to his pleading. The statute applies to “[e]very pleading, petition, written notice of motion, or other similar paper.” (§ 128.7, subd. (a).) Father has not explained why his document did not fall within any of those categories.

The record does not include the Notice of Demand, which is the subject of the November 29, 2017 order, as a filed document. As DCSS points out, the document is included only as an attachment to Father’s designation of the record; the document attached to the designation of the record was marked received on November 17, 2017, but was not file stamped. It bears only Father’s signature. Section 128.7, subdivision (a), requires the signature of an attorney of record, if the party is represented by an attorney. It permits signing by the party only if the party is not represented by an attorney. The October 25, 2017 order indicated Father was represented by counsel at that time, although his attorney did not appear at that hearing. Between that date and the date the Notice of Demand was marked received, there is no substitution of attorney or other document in the record indicating Father replaced his attorney with himself as his legal representative in this case. Father has not established that he was no longer represented by an attorney at the time he tendered the Notice of Demand for filing; accordingly, under the statute, the trial court correctly determined his attorney’s signature was required. Father has not established any error by the trial court in rejecting the Notice of Demand because it was not signed by Father’s attorney, as required by section 128.7.

VII. Other Arguments

Father peppers his opening brief with other general arguments, not presented separately or under appropriate headings, including complaints about the use of commissioners at hearings and assertions that it is somehow unconstitutional for the State of California to impose child support obligations on, or enforce child support orders against, parents who do not consent. Father has not properly presented these arguments in his briefs. He also has not addressed the statutory authority for the use of commissioners, or cited any legal authority establishing the unconstitutionality of the state’s child support system. Because the arguments were not properly presented or supported with legal authority, we will not consider them.

DISPOSITION

The orders appealed from are affirmed. DCSS is entitled to its costs on appeal.