California Court of Appeal Nov 12, 2024 No. E080238Unpublished
Filed 11/12/24 Marriage of Ehirim 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 DOMINIC and BIBIAN EHIRIM.
DOMINIC EHIRIM, E080238 Appellant, (Super.Ct.No. FAMRS1200537) v. OPINION BIBIAN EHIRIM,
Respondent.
APPEAL from the Superior Court of San Bernardino County. Dina Issam Amani,
Commissioner. Affirmed.
Dominic Okechukwu Ehirim, in pro. per., for Appellant.
Gordon Lawyers and Christiaan J. Gordon for Respondent.
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I. INTRODUCTION
This is the third appeal by appellant Dominic Ehirim in this marital dissolution
proceeding. The parties, Dominic and his former spouse, respondent Bibian Ehirim,
married in 1989 and separated in 2009. (In re Marriage of Ehirim (Oct. 12, 2017,
E063531) [nonpub opn.] (Ehirim I).) In 2016, the court entered judgment dissolving the
marriage and adjudicating the parties’ rights in various assets and liabilities. (In re
Ehirim (Sept. 14, 2020, E072397) [nonpub opn.] (Ehirim II).) In 2019, the court entered
judgment on reserved issues. (Ehirim II, E072397.) In the prior appeals, Ehirim I and
Ehirim II, this court affirmed the 2016 and 2019 judgments, respectively. (Ibid.)
In this appeal, Dominic challenges (1) the August 15, 2022 findings and orders
concerning the parties’ August 12, 2022 “Stipulated Order re: Award of Gillmore1 Rights
to [Bibian] and Wage Assignment on [Dominic’s] Employer” (the Friendly Gillmore
stipulation and order); (2) the October 6, 2022 orders directing Dominic to pay Bibian
$10,000 in attorney fees and $2,250 in costs as sanctions (Fam. Code, § 271);2 and (3) the
February 8, 2021 order denying Dominic’s September 3, 2020 motion to set aside the
January 27, 2020 post-judgment order requiring Dominic to pay Bibian a total of $24,781
in attorney fees as sanctions.3
1 In re Marriage of Gillmore (1981) 29 Cal.3d 418 (Gillmore).
2 Undesignated statutory references are to the Family Code.
3 Commissioner Dina Issam Amani issued the February 8, 2021; August 15, 2022; and October 6, 2022 orders. Judge Michelle H. Gilleece issued the January 27, 2020 judgment.
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Regarding the August 15, 2022 and October 6, 2022 orders, Dominic claims the
court erroneously determined the “start date” of his Gillmore payments to Bibian and
abused its discretion in ordering Dominic to pay the $12,250 in attorney fees and costs as
sanctions. Dominic also claims the court was biased against him and conspired with
others to make rulings favorable to Bibian. Lastly, Dominic claims the court erroneously
denied his September 3, 2020 motion to set aside the January 27, 2020 post-judgment
order requiring him to pay Bibian the $24,781 in attorney fees as sanctions.
We conclude that Dominic’s claims challenging the August 15, 2022 and October
6, 2022 orders lack merit, and we affirm those orders. We do not have jurisdiction to
consider, thus we do not consider, Dominic’s claim that the court erroneously denied his
September 3, 2020 motion to set aside the January 27, 2020 order requiring him to pay
$24,781 in attorney fees as sanctions, because Dominic did not timely appeal the
February 8, 2021 order denying his September 3, 20220 motion. We conclude that
Dominic’s claims of judicial bias and conspiracy claims are unfounded. Thus, we affirm
the challenged findings and orders in their entirety.
II. DISCUSSION
A. The August 15, 2022 Orders on the Parties’ Friendly Gillmore Stipulation
Dominic claims the court erroneously determined the “start date” of his Gillmore
payments to Bibian. We find no merit to this claim.
1. Legal Principles
Under Gillmore, a nonmember spouse is entitled to the value of the nonmember’s
community interest in a member spouse’s public retirement plan when the member
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becomes eligible for retirement—that is, the nonmember is entitled to the amount the
nonmember would have collected from the plan if the member retired when the member
became eligible for retirement. (Gillmore, supra, 29 Cal.3d at p. 426.) If the member
continues to work, the member must pay the nonmember the value of the nonmember’s
interest in the plan that the nonmember loses as a result of the member’s decision to
continue working and not retire. (Id. at p. 427.)
In In re Marriage of Cornejo (1996) 13 Cal.4th 381 (Cornejo), our Supreme Court
explained its holding in Gillmore, and the choices that the member and nonmember
spouses have when the member becomes eligible for retirement: “In [Gillmore], we held
that retirement benefits that an employee spouse earns during a marriage to a
nonemployee spouse are community property. On dissolution of the marriage, such
benefits are subject to equal division. When the employee spouse becomes eligible for
retirement, he may choose to retire and receive benefits or to continue to work. That is to
say, he may retire and thereby commence drawing from the stream of income that then
begins to flow, with the result that the nonemployee spouse may start to draw her share of
the community property interest as well; or he may continue to work and thereby forgo
the income he would have drawn, with the result that the nonemployee spouse is
compelled to forgo what would have been her share as well. In brief, the employee
spouse has an initial choice of retiring or continuing to work. He is not permitted,
however, to adversely affect the nonemployee spouse’s share by putting off his
retirement. To prevent such an outcome, the nonemployee spouse too is allowed a
choice. If the employee spouse continues to work, she may merely wait to draw her share
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when he commences to receive benefits (with the possibility of increase as a result of his
then greater age, longer service, and/or higher salary); or she may demand immediate
payment to compensate for what would have been her share (without such possibility of
increase). Thus, the nonemployee spouse has a choice of delayed benefits or immediate
payment. If she decides on the latter, the employee spouse is given another choice. He
may make arrangements to meet her demand for immediate payment; or he may simply
retire and allow her to draw her share. In a word, the employee spouse has a final choice
of satisfaction or avoidance.” (Id. at p. 383.) And the nonemployee or nonmember
spouse has a final choice of immediate payment or delayed payment. (Ibid.)
Cornejo held that, when the member becomes eligible for retirement but continues
to work, and the nonmember chooses “immediate payment” of the nonmember’s interest
in the member’s retirement plan, the nonmember is entitled to that immediate payment on
the date the nonmember files a motion seeking immediate payment. (Cornejo, supra,
13 Cal.4th at p. 385.) Cornejo reasoned that this filing date is “bright” in that it “clearly
constitutes the nonemployee spouse’s choice of immediate payment,” and “clearly puts
the employee spouse on notice that he may exercise his choice of satisfaction or
avoidance.” (Ibid.)
2. Relevant Background
On July 17, 2020, Bibian filed a request for order (RFO), namely, a “Gillmore
order” directing Dominic to pay Bibian her community interest in Dominic’s retirement
plan with the California Public Employees’ Retirement System (CalPERS), along with
attorney fees and costs. A “domestic relations order” (DRO) dividing the parties’
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community property interests in Dominic’s CalPERS plan was entered on Dec. 17, 2018.
As of July 17, 2020, Dominic was eligible to retire but was still employed by his
CalPERS-covered employer. Through her July 17, 2020 RFO, Bibian sought to enforce
her rights under the DRO by obtaining immediate payment of her community property
interest in the CalPERS plan.
Following several hearings and continuances, the court held an evidentiary hearing
on the RFO on September 28, 2021. The parties submitted on their pleadings and
declarations, and the court took the matter under submission. On October 28, 2021, the
court took the matter out of submission and reappointed Richard R. Muir, the pension
expert who had prepared the parties’ DRO, to provide responses to two questions: “Can
the CalPERS pension plan with the State of California divide the interest of the parties
into two separate accounts to reflect their respective community property interests?” and
“If the CalPERS pension plan with the State of California can separate the parties’
respective community property interest into separate accounts, can the nonmember elect
and receive her interest from the sub-divided account?”
On November 11, 2021, Mr. Muir filed a declaration responding to the court’s
questions. Mr. Muir explained that CALPERS could divide the parties’ interests into
separate accounts, but, for two reasons, the court could not force the nonmember, Bibian,
to accept a segregated account. “First, CalPERS retirement formula age factor under a
segregation of account will be for the age of nonmember and not the member. In this
case, [nonmember] is 17 [years] younger than [member] so her age factor will result in a
much lower benefit than the benefit which would be paid to member if he retired from
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CalPERS. Second, a segregation of account freezes the compensation level used to
calculate the nonmember’s benefit at what the member’s compensation was at the date of
dissolution.” For these reasons, Mr. Muir explained, the court could not “order a
segregation of account without the approval of the nonmember.”
Mr. Muir further explained that, if the parties were cooperative, they could enter
into a “Friendly Gillmore solution.” This would require Bibian to waive her right not to
accept a segregated account and would require Dominic to agree “to pay the difference
between the actual Gillmore amount due,” i.e., what Bibian would have received from
CalPERS if Dominic had retired on the date Bibian filed her RFO for the Gillmore order,
“and the amount she would receive from CalPERS on a segregated account.” Finally, a
second CALPERS order was necessary to ensure “that what the member [(Dominic)] was
paying as a Gillmore payment would be paid by CalPERS when the member [(Dominic)]
eventually retires.”
In sum, Mr. Muir explained that “a Friendly Gillmore involves first, a CalPERS
segregation of account order. . . , second, a Gillmore order that orders the member to pay
[the nonmember] the difference between the actual Gillmore amount and the amount
[the] nonmember receives on the segregation of account order. The parties would have to
agree that the amount is as and for nonmodifiable spousal support . . . and third, a
supplemental order on CalPERS so that the lower Gillmore payment will be made from
CALPERS once the member actually retires.”
In response to the court’s second question, Mr. Muir explained that a nonmember
may begin collecting payments from CalPERS on a segregated account “once both
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parties have reached age 50.” Under the segregation of account, Bibian “would be frozen
at” Dominic’s compensation level at the date of dissolution “instead of the current
compensation level she is entitled to on her share of the service credits. “ But, without a
“Friendly Gillmore” agreement, Dominic “would be required to pay the entire Gillmore
amount” (the amount of Dominic’s retirement pay that Bibian would be entitled to
receive if Dominic retired on July 17, 2020).
Mr. Muir later prepared a Friendly Gillmore agreement for the parties. On August
12, 2022, the Friendly Gillmore stipulation and order was filed. Bibian and her counsel
signed the stipulation on March 26, 2022; Dominic signed the stipulation on July 18; and,
on August 12, the court signed the order on the stipulation.
Pursuant to the Friendly Gillmore stipulation and order, the court ordered Dominic
pay Bibian $786 per month, on the first day of each month, beginning on July 17, 2020.4
The stipulation and order states that the $786 amount is 13.66 percent of the “unmodified
monthly benefit” that Dominic would have received had he retired and sought CalPERS
benefits on July 17, 2020. The $786 payments are “non-modifiable spousal support” and
are to continue until the earlier of (1) the date Dominic retires and begins receiving
CalPERS benefits, (2) the death of either party, or (3) further order of court. The
stipulation and order allowed Bibian to request a wage assignment order on Dominic’s
employer to secure the $786 payments. The court retained jurisdiction to amend the
4 A June 14, 2022 minute order shows the court determined that Bibian’s Gillmore benefits would start on July 7, 2020. The court ostensibly meant that the benefits would start on July 17, 2020, “the date of the filing” of Bibian’s RFO.
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order “to establish or maintain its qualification under” sections 2060 to 2610 “and to
make any and all orders necessary to effect an equal division of the community interest”
in Dominic’s CalPERS plan.
On August 15, 2022, the court held a further hearing on Bibian’s July 17, 2020
RFO and the status of the parties’ “Friendly Gillmore” stipulation and order. Dominic
questioned why the “start date” of the Gillmore payments was July 17, 2020, the date
Bibian filed her RFO seeking Gillmore payments, rather than June 30, 2021, the date that
the $786 amount of the Friendly Gillmore award was established. The court explained
that Gillmore rights are “retroactive to the filing date” of the RFO. (Cornejo, supra, 13
Cal.4th at p. 385.)5
3. Analysis / The Gillmore Award Start Date
Dominic claims the court erroneously determined that the “start date” of Bibian’s
Gillmore payments was July 17, 2020, the date Bibian filed her RFO seeking a Gillmore
5 Also on August 15, 2022, the court issued orders regarding Dominic’s payment to Bibian of the $19,650 arrearage for the 25 monthly payments of $786 due between July 17, 2020 and August 15, 2022 (25 x $786 = $19,650), pursuant to the parties’ Friendly Gillmore stipulation. To pay the arrearage, Dominic agreed to pay Bibian an additional $214 per month, or a total of $1,000 per month ($786 + $214 = $1,000) beginning on August 17, 2022, until the arrearage was fully paid. At Bibian’s request, the court issued a wage assignment order for the $1,000 payments but explained to Dominic that he was required to make the payments until his employer began making the payments to Bibian. Dominic was ordered to pay Bibian $500 on August 17, 2022, and to begin making $1,000 monthly payments to Bibian on September 1, 2022. The court also ordered that, if Dominic missed four consecutive payments, including the partial payment of $500 due on August 17, 2022, the entire $19,650 arrearage would be immediately due.
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award, rather than June 30, 2021, the date the $786 amount of the Friendly Gillmore
award was established. As noted, we find no merit to this claim.
Dominic argues that Bibian’s RFO “was uncertain and not specific when it was
filed on July 17, 2020,” thus, the court “could not have made” a Gillmore award on
July 17, 2020 “because it did not know what to award.” Dominic points out that, “on
June 30, 2021, Bibian submitted “a declaration from her actuary fixing the Gillmore
award at $786.00,” based on Dominic’s 2020 income information known to Bibian on
July 17, 2020. Dominic complains that the court then set a September 29, 2021 trial date
on the RFO, “when it could have made the [Gillmore] award order” when Bibian
submitted that she was entitled to receive $786 per month. In sum, Dominic claims he
“suffered a lot of prejudice/harm” because it took Bibian “approximately one year to
complete her application and another one year for the court to make its ruling.” Dominic
points out that Bibian did not “reac[h] out to CalPERS about segregation of accounts”
until December 2021.
Dominic’s arguments are unavailing. As a matter of law, Bibian’s right to receive
a Gillmore award was fixed on July 17, 2020, the date Bibian filed her RFO seeking
payment of the value of her interest in Dominic’s CalPERS plan. (Cornejo, supra,
13 Cal.4th at p. 385.) By operation of law, the date the RFO was filed is the date Bibian
elected to receive “immediate payment” of her Gillmore award, instead of continuing to
defer her right to that payment. (Id. at pp. 383, 385.) Because Dominic was eligible to
retire on July 17, 2020, Bibian was entitled to receive Gillmore payments from and after
July 17, the date she elected immediate payment.
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That Bibian did not ascertain the $786 month value of her Friendly Gillmore
award, as of July 17, 2020, until June 30, 2021, or nearly one year after she filed her July
17, 2020 RFO seeking a Gillmore award, does not change this result. Dominic has
pointed to no authority, and we are aware of none, that requires a nonmember spouse to
allege or state the value of their Gillmore rights when they elect immediate payment.
Further, Dominic has not suffered any prejudice or harm due to the retroactive
application of Bibian’s Gillmore award to July 17, 2020. On and after July 17, Dominic
had all of the information he needed to calculate the value of Bibian’s Gillmore rights as
of July 17. Dominic knew his 2020 income, and he could have contacted CalPERS, as
Bibian’s counsel later did, for assistance in calculating the value of Bibian’s Gillmore
rights and establishing segregated accounts with CalPERS. Dominic also signed the
“Friendly Gillmore” agreement, stipulating that the value of Bibian’s Friendly Gillmore
rights was $786 per month as of July 17, 2020. Finally, at the August 15, 2022 hearing,
Dominic was not ordered to pay any interest on the $19,650 arrearage, the 25 payments
of $786 that Dominic owed Bibian from July 17, 2020 through August 17, 2022.
B. The October 6, 2022 Order Requiring Dominic to Pay $12,250 as Sanctions
Dominic claims the court abused its discretion in ordering him to pay Bibian
$12,250 in attorney fees and costs as sanctions, on October 6, 2022. (§ 271.) We find no
abuse of discretion in the October 6 sanctions order.
1. Relevant Background
At the August 15, 2022 hearing on Bibian’s July 17, 2020 RFO, and the parties’
Friendly Gillmore stipulation, the court deferred ruling on the matter of Bibian’s request
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for attorney fees and costs set forth in her counsel’s July 26, 2022 declaration, in order to
give Dominic an opportunity to respond in writing. On August 23, 2022, Dominic filed a
response. On October 6, 2022, the court issued a written ruling on Bibian’s request.
First, the court denied Bibian’s request for attorney fees under sections 2030 and 2032 on
the ground the parties were both “professionals working full time” and Bibian’s net
monthly spendable income was significantly higher than Dominic’s.
Both parties requested sanctions pursuant to section 271. The court found both
parties had “sufficient assets and income (homes with substantial equity, retirement
accounts, land, etc.) to pay a monetary award . . . .” The court found, “[a]fter a careful
review of all hearings and continuances” that had occurred in connection with Bibian’s
July 17, 2020 RFO seeking a Gillmore award, that Dominic had “frustrated the prompt
resolution and settlement of this case. He requested multiple continuances. He did not
actively cooperate and provide the opposing party with the necessary information needed
to calculate the Friendly [Gillmore] payments. For several months, he refused to pay the
amount owed to Mr. Muir to complete the Friendly Gillmore stipulation, and when the
Friendly Gillmore stipulation was completed, he unnecessarily delayed in signing it,
which resulted in the setting of additional hearings.” Accordingly, the court ordered
Dominic to pay Bibian $10,000 in attorney fees as sanctions “forthwith” and to
“reimburse” Bibian “for the one-half payment she paid Mr. Muir, totaling $2,250.00,”
within 15 days of October 6, 2022. (The parties had agreed to evenly share Mr. Muir ‘s
$4,500 fee for preparing the Friendly Gillmore stipulation, with each party paying Mr.
Muir $2,250.)
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2. Legal Principles
Section 271 allows the court to “base an award of attorney’s fees and costs on the
extent to which any conduct of each party or attorney furthers or frustrates the policy of
the law to promote settlement of litigation and, where possible, to reduce the cost of
litigation by encouraging cooperation between the parties and attorneys.” (§ 271,
subd. (a).) An award of fees and costs pursuant to section 271 “is in the nature of a
sanction.” (Ibid.) In ordering a sanction under section 271, the court is required to
consider “all evidence concerning the parties’ incomes, assets, and liabilities” and the
court must not impose a sanction that places “an unreasonable financial burden” on a
party. (Ibid.) We review a sanctions order under section 271 for an abuse of discretion.
(In re Marriage of Smith (2015) 242 Cal.App.4th 529, 532.) The order “ ‘will be
overturned only if, considering all the evidence viewed most favorably in support of its
order, no judge could reasonably make the order made.’ ” (Ibid.)
3. Analysis
Dominic claims the court abused its discretion in issuing the $12,250 sanctions
order. He argues he “had absolutely nothing to do with the delay in the case,” and that
Bibian, her counsel, and the court are at fault for the approximate two-year delay in
ascertaining the $786 value of Bibian’s Friendly Gillmore award. He also argues that the
court did not consider his income, assets, and liabilities in issuing the sanctions order,
including the over $60,000 in liabilities he had for previous sanctions orders. He claims
section 271 “is being used to silence [him] from engaging in legitimate legal
proceedings.”
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Viewing the evidence in the light most favorable to the October 6, 2022 sanctions
order, we cannot say that no judge could have reasonably made the sanctions order.
Substantial evidence supports the court’s finding that Dominic “frustrated the prompt
resolution and settlement of this case” by requesting multiple continuances and by failing
to “actively cooperate and provide the opposing party with the necessary information
needed to calculate the Friendly Gillmore payments.” As noted, from and after July 17,
2020, when Bibian filed her RFO seeking a Gillmore award, Dominic had all of the
information Bibian needed to calculate the $786 amount of Bibian’s Gillmore award,
including his 2020 income, but the record shows that he did not promptly provide that
information to Bibian. The record also supports the court’s finding that Dominic refused
to promptly pay the $2,250 amount (one half of Mr. Muir’s $4,500 fee) that Dominic
agreed to pay Mr. Muir to complete the parties’ Friendly Gillmore stipulation; and, when
the stipulation was completed, he unnecessarily delayed in signing it, resulting in the
setting of additional hearings. Lastly, the record shows that the court expressly took
Dominic’s and Bibian’s income and assets and liabilities into consideration in issuing the
sanctions award against Dominic. In light of the entire record, the court reasonably
determined that the $12,250 sanction was justified and would not impose an unreasonable
financial burden on Dominic. Thus, we find no abuse of discretion in the issuance of the
sanctions order.
C. Dominic’s Judicial Bias and Conspiracy Claims Are Unfounded
Dominic claims the court was biased against him because he represented himself,
but there is no evidence the court ruled against Dominic based on his pro se status or
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other judicial bias. The fact the court ruled in favor of Bibian does not show bias by the
court against Dominic. (Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th
665, 674.) Dominic also claims Mr. Muir and Bibian were “collaborating with the court”
to make “rulings favorable to” Bibian. But there is no evidence that the court, Mr. Muir,
and Bibian engaged in any conspiracy. In sum, there is no evidence of any judicial bias
or conspiracy against Dominic in any of the proceedings or rulings. Thus, we find no
merit in Dominic’s claims.
D. The January 27, 2020 $24,781 Sanctions Order Is No Longer Appealable
Lastly, Dominic challenges the court’s February 8, 2021 order denying his
September 3, 2020 motion to set aside the January 27, 2020 order directing Dominic to
pay Bibian a total of $24,781.00 in attorney fees as sanctions. (§ 271.) The February 8,
2021 order was entered following a November 18, 2020 hearing on Dominic’s September
3, 2020 motion. In his motion, Dominic claimed the sanctions order should have been set
aside based on Dominic’s mistake, surprise, or excusable neglect. (Code Civ. Proc., §
437, subd. (b).)
1. Additional Background
The January 27, 2020 sanctions order is based on the court’s September 19, 2019
findings and orders directing Dominic to pay Bibian $9,781 in sanctions by
December 1, 2019, and an additional $15,000 in sanctions on or before February 1, 2020.
On March 5, 2020, the court issued an abstract of judgment for the January 27, 2020
$24,781 sanctions order and judgment, and Bibian recorded the abstract, placing a lien on
Dominic’s house.
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On June 23, 2020, Dominic filed an RFO to set aside the January 27, 2020
sanctions order, which was denied following an August 25, 2020 hearing. Dominic
claims he attempted to appear by phone at the August 25 hearing but was put on hold and
later informed that his June 23, 2020 RFO was dismissed due to his failure to appear at
the August 25 hearing. Dominic then filed his September 3, 2020 RFO to set aside the
January 27, 2020 sanctions order.
2. Analysis
We do not have jurisdiction to consider Dominic claim that his September 3, 2020
motion to set aside the January 27, 2020 $24,781 sanctions order was erroneously denied.
Dominic did not file a timely notice of appeal from the February 8, 2021 order denying
his September 3, 2020 RFO to set aside the January 27, 2020 sanctions order. The record
does not show that either party or the clerk of court served a notice of entry of the
February 8, 2021 order. (Cal. Rules of Court, rule 8.104(a), (b).)6 Thus, Dominic had
180 days from February 8, 2021 to file a notice of appeal (rule 8.104(c)), but he did not
do so.
Dominic’s failure to appeal the February 8, 2021 order precludes our consideration
of his claim that the January 27, 2020 sanctions order and judgment should have been set
aside. “The timely filing of a notice of appeal ‘is an absolute prerequisite to the exercise
of appellate jurisdiction; once the deadline expires, we have no power to entertain the
6 Unspecified rule references are to the California Rules of Court.
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appeal,’ ” and we must dismiss the appeal. (The Inland Oversight Committee v. City of
Ontario (2015) 240 Cal.App.4th 1140, 1143-1144.)
E. Our Construction of Dominic’s Current Notice of Appeal
On November 22, 2022, Dominic filed a notice of appeal from the judgment or
order entered November 8, 2022, but the register of actions shows no judgment or order
was entered on November 8, 2022. Instead, on November 8, 2022, Bibian’s counsel filed
a declaration regarding service on Dominic of counsel’s proposed findings and orders
made at the August 15, 2022 continued hearing on Bibian’s July 17, 2020 RFO and the
parties’ Friendly Gillmore stipulation. The court did not sign Bibian’s proposed findings
and orders, but the record includes a reporter’s transcript of the August 15 hearing,
showing the orders made.
We have liberally construed Dominic’s November 22, 2022 notice of appeal as
being from the October 6, 2022 order requiring Dominic to pay Bibian $12,250 in
sanctions, and the orders made at the August 15, 2022 hearing on the parties’ Friendly
Gillmore stipulation and order. “Generally, we must liberally construe a notice of appeal
in favor of its sufficiency. (Cal. Rules of Court, rules 8.100(a)(2), 8.405(a)(3).) A notice
of appeal shall be ‘ “liberally construed so as to protect the right of appeal if it
is reasonably clear what [the] appellant was trying to appeal from, and where the
respondent could not possibly have been misled or prejudiced.” ’ ” (In re J.F. (2019)
39 Cal.App.5th 70, 75.)
It is reasonably clear that Dominic, in referencing the November 8, 2022 orders or
judgment in his November 22, 2022 notice of appeal, intended to appeal from the
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October 6, 2022 and August 15, 2022 orders. Bibian has also construed the notice of
appeal as being from these orders. Thus, Bibian cannot have been misled by the notice’s
misdescription of the orders appealed. But, “it is well ‘beyond liberal construction” to
view an appeal from one order as an appeal from a ‘further and different order.’ ” (Baker
v. Castaldi (2015) 235 Cal.App.4th 218, 225.) And here, there is no basis for
constructing the November 22, 2022 notice of appeal as from the February 8, 2021 order.
Further, an appeal from the February 8, 2021 order would have been untimely if filed on
November 22, 2022. (Rule 8.104(c).)
III. DISPOSITION
The court’s August 15, 2022 and October 6, 2022 orders are affirmed. Bibian
shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
RAMIREZ P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's orders regarding the start date of Gillmore payments and the imposition of $12,250 in sanctions, finding no abuse of discretion or judicial bias. The court dismissed the appeal regarding a prior 2021 order due to lack of appellate jurisdiction resulting from an untimely notice of appeal.
Issues
Did the trial court err in determining the start date for Gillmore payments?
Did the trial court abuse its discretion in awarding $12,250 in sanctions under Family Code section 271?
Did the trial court exhibit judicial bias or participate in a conspiracy?
Does the appellate court have jurisdiction to review the denial of a motion to set aside a 2020 sanctions order?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude that Dominic’s claims challenging the August 15, 2022 and October 6, 2022 orders lack merit, and we affirm those orders.”
“As a matter of law, Bibian’s right to receive a Gillmore award was fixed on July 17, 2020, the date Bibian filed her RFO seeking payment of the value of her interest in Dominic’s CalPERS plan.”
“We do not have jurisdiction to consider, thus we do not consider, Dominic’s claim that the court erroneously denied his September 3, 2020 motion to set aside the January 27, 2020 order”