Estrella v. Foshtomi CA1/1

Filed 8/21/14 Estrella v. Foshtomi CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

HOLLIE ESTRELLA, Plaintiff and Respondent, A139947 v. PEYMAN FATAHI FOSHTOMI, (Solano County Super. Ct. No. FFL131278) Defendant and Appellant.

Appellant Peyman Fatahi Foshtomi appeals from an order that temporarily restrained him from harassing or contacting his former spouse and some of her relatives and restricted his ability to visit or have custody of a child. We dismiss the appeal for lack of jurisdiction because the portion of the order restraining Foshtomi is moot, and the remaining portions of the order are interlocutory. FACTUAL AND PROCEDURAL BACKGROUND Foshtomi and Hollie Estrella have one child together, L.F., who was born in March 2002. The couple reportedly divorced in 2006. Years later, Estrella sought a domestic-violence restraining order against Foshtomi, and a hearing was held on September 20, 2013. At the conclusion of the hearing, the trial court issued an order. The order temporarily restrained Foshtomi from harassing or contacting Estrella, Estrella’s parents, L.F., and Estrella’s two younger children until November 22, 2013, the date Estrella’s request for a permanent restraining order was scheduled to be heard. The order also awarded custody of L.F. to Estrella’s parents, deeming them the child’s de

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facto parents, and denied Foshtomi visitation. These portions of the order were to remain in effect even after the hearing on the permanent restraining order. Foshtomi timely appealed. DISCUSSION This court asked for supplemental letter briefs from the parties to address whether the appeal is moot in light of the expiration of the temporary restraining order on November 22, 2013. Neither party responded. We conclude that the portion of the September 20 order restraining Foshtomi from harassment or contact is moot because it has expired. (See, e.g., Environmental Charter High School v. Centinela Valley Union High School Dist. (2004) 122 Cal.App.4th 139, 144 [“If relief granted by the trial court is temporal, and if the relief granted expires before an appeal can be heard, then an appeal by the adverse party is moot. [Citation.]”].) We also conclude that we lack appellate jurisdiction over the other portions of the order because, while they are not moot, they are interlocutory and not appealable. “Generally there is no right of appeal except from a final judgment or final order.” (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297.) “The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1. [Citations.]” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.) Here, even though the custody and visitation orders were to remain in effect after November 22, 2013 (the date Estrella’s request for a permanent restraining order was scheduled to be heard), the trial court clearly indicated that they were nonetheless temporary: “If you [referring to Foshtomi] believe that by hiring an attorney and addressing something that therefore something may change here or may have a different take on this, I’m always going to respect that. So, I’m not going to make a permanent order today. [¶] . . . [¶] However, I am taking custody from—[L.F.] from you right