Wardwell v. Vertical Infill, Inc. et al.

HearingDescription: APPELLANT'S APPENDIX AND OPENING BRIEF FILED.

DocketDescription: Remittitur issued.

DocketDescription: Granted - extension of time.; Notes: APPELLANT'S APPENDIX AND OPENING BRIEF FILED. Due on 02/26/2021 By 32 Day(s)

DocketDescription: REPORTER'S TRANSCRIPT FILED***; Notes: Clerk's rule 8.124 and Reporter'sRT-7/909pgs.

DispositionDescription: Other involuntary dismissal; Disposition Type: Partial As to appeal filed 9/10/20 (8/21 Order)

DocketDescription: Dismissal order filed.; Notes: The matter having been considered by Presiding Justice McConnell and Associate Justices Irion and Guerrero, the appeal filed by appellants Deborah M. Wardwell and her counsel, Kimberly Swierenga, on September 10, 2020, is DISMISSED IN PART to the extent it purports to appeal an order dated August 21, 2020, issued by the San Diego County Superior Court. In that notice of appeal, appellants states that they appeal a judgment or order dated August 28, 2020, and attach a copy of a judgment entered on August 28, 2020. Although the notice of appeal describes the judgment or order being appealed as an order after judgment (Code Civ. Proc., 904.1, subd. (a)(2)) and an order or judgment under Code of Civil Procedure section 904.1, subdivision (a)(3) through (13), the notice of appeal does not identify or attach any specific judgment or order that falls within any of those descriptions. The civil case information statement (CCIS) filed by appellants on November 6, 2020, again states that they appeal a judgment or order dated August 28, 2020. However, as with their notice of appeal, their CCIS describes the judgment or order being appealed as an order after judgment (Code Civ. Proc., 904.1, subd. (a)(2)) and an order or judgment under Code of Civil Procedure section 904.1, subdivision (a)(3) through (13). Appellants attached to their CCIS the following documents: (1) a minute order issued on August 21, 2020, in which the court, inter alia, (a) granted the motion for sanctions filed by respondent Preferred Group Properties, Inc. and imposed sanctions in the amount of $8,690 against appellants, and (b) granted the motion for sanctions filed by respondents Brian Burns, Venus Burns, and Burns Law Firm and imposed sanctions in the amount of $8,250 against appellants; and (2) a notice of entry of judgment served by respondent Preferred Group Properties, Inc., which included a copy of the judgment entered on August 28, 2020, dismissing appellant Wardwell's action against respondent Preferred Group Properties, Inc. This court has not received a notice of appeal challenging the August 21, 2020 order. The filing of a notice of appeal in the superior court is the exclusive means of taking an appeal from a superior court judgment or order. (Cal. Rules of Court, rule 8.100(a)(1).) California Rules of Court, rule 8.100(a)(2) provides: "The notice of appeal must be liberally construed. The notice of appeal is sufficient if it identifies the particular judgment or order being appealed." Furthermore, an appealable order must be "expressly specified" in a notice of appeal in order to be reviewable on appeal. (Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1171.) A notice of appeal, liberally construed, is nevertheless insufficient if it is not "reasonably clear" what the appellant was trying to appeal from. (In re Joshua S. (2007) 41 Cal.4th 261, 272.) In this case, the notice of appeal filed by appellants on September 10, 2020, did not expressly specify or identify the particular order (i.e., the August 21, 2020 order) purportedly being appealed, nor was it reasonably clear from the notice of appeal that appellants were trying to appeal from the August 21, 2020 order. Accordingly, the court lacks jurisdiction to consider appellants' purported appeal of the August 21, 2020 order. (Cal. Rules of Court, rule 8.100(a)(1), (a)(2); Colony Hill v. Ghamaty, supra, 143 Cal.App.4th at p. 1171; In re Joshua S., supra, 41 Cal.4th at p. 272.) The appeal may nevertheless proceed as to appellant Wardwell's appeal of the August 28, 2020 judgment.

DocketDescription: Filed letter from:; Notes: Respondent Burns et al re appealability per court's request dated 11/19/20

DocketDescription: Filed letter from:; Notes: Appellant re appealability per court's request dated 11/19/20

DocketDescription: Letter sent to counsel re:; Notes: The first notice of appeal (NOA#1) filed by appellant Deborah M. Wardwell on August 14, 2020, appeals a judgment entered on March 11, 2020, dismissing appellant's action against defendants Vertical Infill, Inc., Micole Elliot Simis, Simis Law Group, and Dean Lloyd Welsh. The second notice of appeal (NOA#2) filed by appellants Deborah M. Wardwell and her counsel, Kimberly Swierenga, on September 10, 2020, states that they appeal a judgment or order dated August 28, 2020, and it attaches a copy of a judgment entered on August 28, 2020, dismissing appellant Wardwell's action against defendant Preferred Group Properties, Inc., doing business as Harcourts Prime Properties. However, NOA#2 describes the judgment or order being appealed as an order after judgment (Code Civ. Proc., 904.1, subd. (a)(2)) and an order or judgment under Code of Civil Procedure section 904.1, subdivision (a)(3) through (13). NOA#2 does not identify or attach any specific judgment or order that falls within any of those descriptions. The civil case information statement (CCIS) filed by appellants Wardwell and Swierenga on November 6, 2020, with respect to NOA#2 again states that they appeal a judgment or order dated August 28, 2020. The CCIS also states that a notice of entry of judgment or a copy of the judgment was served on September 28, 2020, pursuant to California Rules of Court, rule 8.104. However, as with NOA#2, the CCIS describes the judgment or order being appealed as an order after judgment (Code Civ. Proc., 904.1, subd. (a)(2)) and an order or judgment under Code of Civil Procedure section 904.1, subdivision (a)(3) through (13). Appellants attached to the CCIS the following documents: (1) a minute order issued on August 21, 2020, in which the court, inter alia, (a) granted the motion for sanctions filed by defendant Preferred Group Properties, Inc. and imposed sanctions in the amount of $8,690 against appellants, and (b) granted the motion for sanctions filed by defendants Brian Burns, Venus Burns, and Burns Law Firm and imposed sanctions in the amount of $8,250 against appellants; and (2) a notice of entry of judgment served by defendant Preferred Group Properties, Inc., which included a copy of the judgment entered on August 28, 2020, dismissing appellant Wardwell's action against defendant Preferred Group Properties, Inc. This court has not received a notice of appeal challenging the August 21, 2020 order. The filing of a notice of appeal in the superior court is the exclusive means of taking an appeal from a superior court judgment or order. (Cal. Rules of Court, rule 8.100(a)(1).) The court requests that appellants submit, within 10 days of the date of this letter, a letter: (1) clarifying whether their intent was to appeal the August 28, 2020 judgment and/or the August 21, 2020 order; and (2) if they intended to appeal the August 21, 2020 order, explaining why we should not dismiss their appeal as to that order for failure to file a notice of appeal challenging that order on or before October 25, 2020 (i.e., 60 days after a notice of entry of that order was served on August 25, 2020, pursuant to California Rules of Court, rule 8.104(a)(1)(B)). (See San Diego County Superior Court's Register of Actions #428.) Defendants Preferred Group Properties, Inc., Brian Burns, Venus Burns, and Burns Law Firm may also address these issues by letter within the same 10-day time period.

DocketDescription: Transcript fees paid.; Notes: 11/5/20

DocketDescription: Notice of appeal lodged/received.; Notes: 9/10/20 by Deborah M. Wardwell and Kimberly Swierenga

DocketDescription: Received copy of document filed in trial court.; Notes: Notice of proceedings not reported

DocketDescription: Notice per rule 8.124 - with reporter's transcript.; Notes: 9/10/20

DocketDescription: Received default notice 8.121(a) designation not filed. Dated:; Notes: 8/26/20 - no POS

DocketDescription: Notice per rule 8.124 - with reporter's transcript.; Notes: 8/24/20

DocketDescription: Order waiving filing fee.

DocketDescription: Application for waiver of filing fee filed.

DocketDescription: Appellate package sent.

DocketDescription: Notice of appeal lodged/received.; Notes: Filed 8/14/20 by Deborah M. Wardwell

DocketTrial Court Name: San Diego County Superior Court - Main; County: San Diego; Trial Court Case Number: 37-2019000003035-CU-NP-CTL; Trial Court Judge: Trapp, Randa