Heffel v. Presley Homes

Filed 10/26/06 Heffel v. Presley Homes CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Madeleine Heffel appeals from orders of the trial court dismissing the action, terminating the guardianship ad litem that had been established for her, and denying a motion for a new trial. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

This is the third appeal in this court arising out of a lawsuit brought by appellant alleging the presence of toxic mold in her new home. In February 2004, a jury returned a special verdict in favor of appellant. Judgment was entered in March 2004.

In April 2004, defendant William Lyon Homes, Inc. (now known as Presley Homes, Inc.) appealed from the judgment and the denial of its motion for judgment notwithstanding the verdict. Appellant’s counsel filed a motion to dismiss that appeal. Appellant herself contacted the court, indicating that the motion to dismiss was filed without her consent and that she opposed it. On October 5, 2004, this court granted the motion filed by appellant’s counsel and dismissed the appeal from the judgment on the ground that it was untimely. (Heffel v. William Lyon Homes, Inc. (Oct. 5, 2004, A106733) [nonpub. opn.].)

The special verdict returned by the jury resulted in a new trial for punitive damages, according to appellant’s trial counsel, and a settlement was reached. Counsel further stated that the settlement was put on the record, the court and counsel voir dired appellant, respondent sent a check that was deposited in appellant’s trust account, and a settlement agreement was prepared. Appellant refused to sign the settlement agreement. On November 19, 2004, at the request of appellant’s attorney and with the support of appellant’s adult children, the trial court appointed appellant’s elder son guardian ad litem for appellant for the purpose of “resolving this case.” On February 3, 2005, this court dismissed appellant’s appeal from the order appointing the guardian ad litem because the order was not appealable. (Heffel v. Heffel (Feb. 3, 2005, A108817).)

On July 1, 2005, the trial court entered an order granting a motion filed by appellant’s counsel and dismissing the action with prejudice and terminating the appointment of the guardian ad litem. On August 26, 2005, the court denied appellant’s motion for a new trial.

Appellant’s notice of appeal was filed on August 30, 2005.

III. DISCUSSION

In her opening brief, appellant, in propria persona, requests that this court “REVERSE, VACATE, REVOKE the superior court’s orders of 11-19-2004 & 7-1-2005 on which the order of 8-26-2005” is based. No respondent’s brief was filed. Accordingly, the appeal is now submitted on appellant’s opening brief and the record. Appellant has presented us with a brief that is very difficult to follow. More specifically, the brief fails to raise legal issues in a clear and concise manner; it contains no citations to case authority or to the record; and the record itself consists of filings and correspondence that are not bound or numbered, many pages of which contain hand-written notes and comments by appellant. Appellant explains that she did not have time to file an appendix, but rather refers us to numerous documents she has filed in this court since 2004. Appellant’s first opening brief was stricken for failure to comply with the Rules of Court. Despite the failure of her latest brief to present pertinent and comprehensible legal argument, we will do our best to discern the points appellant intends to raise.

Appellant believes the trial court erred procedurally and substantively when it appointed the guardian ad litem in November 2004. It would appear that appellant feels offended that a guardian ad litem was appointed, because, she states, she was at all times mentally and physically competent.

Preliminarily, we observe that the order appointing the guardian ad litem is subject to appeal now, on review of the order of dismissal, as contrasted with appellant’s earlier attempt to appeal from the appointment order itself, which is nonappealable. (See In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219-220.)

However, appellant failed to specify this order in her notice of appeal, and there is no other indication in that notice that she wished to appeal the appointment of the guardian ad litem. (See, e.g., Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 91-92; Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 624-625; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47; Eskaton Monterey Hospital v. Myers (1982) 134 Cal.App.3d 788, 790, fn. 1; Estate of McManus (1963) 214 Cal.App.2d 390, 394, fn. 1.) Despite the policy of liberal interpretation of a notice of appeal, we are unable to construe the notice herein as in any way encompassing the original order appointing the guardian ad litem. The notice of appeal specifically states that the appeal is “from the Order issued on July 1, 2005 and the denial of a motion for new trial on August 26, 2005.” (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 460, pp. 507-508 [“[A] notice specifically describing a certain part of the judgment will not bring up the whole judgment. This is not a case of misdescription, but instead a clear intention to appeal from only a part of the judgment.”] .) Moreover, as far as we can tell, the guardian ad litem was not served with the notice of appeal or any other document filed in this appeal.[1]

We turn now to the orders identified in the notice of appeal. Appellant herself, through her counsel, sought the rulings of July 1, 2005, in which the underlying action was dismissed with prejudice and the guardianship was terminated. As best we can determine, appellant’s quarrel with these orders was that she had present in court with her that day, July 1, 2005, two medical specialists who were prepared to testify regarding her mental and physical competence, but who did not have the opportunity to address the court. She also appears to argue that the guardianship ad litem should have been revoked or vacated rather than terminated. In any event, appellant cannot appeal from a dismissal order entered at her own request. (See Bell v. Hummel (1982) 136 Cal.App.3d 1009, 1015, disapproved on other grounds in Laird v. Blacker (1992) 2 Cal.4th 606, 617; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2005) 11:42.)

The appeal of the August 26, 2005, denial of a motion for a new trial fails for similar reasons. Appellant’s motion for a new trial was filed by new counsel she apparently retained sometime after the orders of July 1, 2005, were issued. Appellant challenges the August 26, 2005, order as another product of the wrongful order appointing the guardian ad litem. She argues that this order was illegal and unconstitutional and, again, that the court on August 26, 2005, ignored medical and psychiatric attestations regarding her competence. Without a cognizable legal argument that the trial court erred in denying the motion, we are unable to order relief.

IV. DISPOSITION

The orders appealed from are affirmed.

_________________________

Haerle, Acting P.J.

We concur:

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Lambden, J.

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Richman, J.

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[1] The record on appeal contains a copy of the notice of appeal with a hand-written note initialed by appellant adding “& 11-19-04,” which we interpret to be appellant’s attempt to amend the notice of appeal to include the order issued November 19, 2004. There is no indication in the record that any amended notice of appeal was filed or served. The record also contains a document filed on November 14, 2005, in the superior court entitled, “Amendment to Record Designation and Election to Proceed under Rule 5.1 Re:Notice of Appeal of 8-30-2005 and Rule 4:Reporter’s Transcripts of Court Proceedings of 11-19-2004 and 9-24-2004.” In the midst of this document, appellant states that she is also appealing from the trial court’s order of November 19, 2004. However, this document fails to sufficiently identify itself as an amended notice of appeal, and it was not served on the guardian ad litem.