Filed 4/27/21 Marriage of Hanna CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Maurice Sanchez, Judge. Dismissed.

John L. Dodd & Associates and John L. Dodd; Kayleen H. Writer for Appellant.

The Law Offices of Patrick A. McCall and Patrick A. McCall for Respondent.

INTRODUCTION

This is the second appeal by Michele Hanna concerning her marriage to the late Patrick Hanna. In the first appeal, we affirmed the family court’s order entering a judgment nunc pro tunc in December 2019 dissolving the marriage as of March 2008.[1] Michele appealed from that order in February 2020. We issued our opinion in December 2020.

While the appeal was pending, Patrick’s special administrator in the probate court applied in the family court for an order requiring Michele to post a bond to stay the execution of the judgment nunc pro tunc. The family court ordered Michele to post a $1.4 million bond, and Michele appealed from that order in June 2020. That is the appeal presently before us.

This appeal must be dismissed because it is moot. We dissolved the family court’s stay when we issued our own stay in April 2020, pursuant to a writ petition Michele filed in March. In addition, the appeal from the judgment nunc pro tunc has now been decided, so whether the family court properly granted a stay during the pendency of that appeal no longer matters. Whether it was a mistake or not, the stay no longer exists.

FACTS

Michele petitioned for dissolution on March 6, 2007, after a two-year marriage to Patrick. On March 13, 2008, the family court granted judgment of dissolution “pursuant to the handwritten stipulation signed and filed this date.” The stipulated judgment awarded a house on Barrett Lane in Santa Ana to Patrick as his sole and separate property. The minute order stated, “The marriage shall terminate upon the filing of a formal judgment” and ordered Michele’s counsel to prepare the judgment. Michele’s counsel did not prepare a “formal judgment” and subsequently withdrew from the case.

On March 12, 2012, the court issued an order to show cause re dismissal for failure to prosecute, but then ordered the matter off calendar at a hearing on April 6. Neither the parties nor their counsel appeared at this hearing.

Nothing else happened for over seven years. On December 6, 2019, Marc Hanna – variously identified as Patrick’s cousin or brother – applied ex parte for entry of an order of judgment of dissolution nunc pro tunc as of March 13, 2008. Attached to the application were declarations from Marc Hanna and from Patrick’s divorce counsel, Patrick McCall. Marc Hanna declared that Patrick had died and Michele was refusing to release the body to his family for burial. Marc Hanna also declared that drug-using squatters were living in Patrick’s Barrett Lane house and were selling his property, with Michele’s permission. To McCall’s declaration were attached the stipulated judgment disposing of the property, the minute order of March 13, 2008, granting dissolution pursuant to the stipulation, correspondence between the parties’ attorneys regarding compliance with the terms of the judgment, and a page from the register of actions showing the withdrawal of Michele’s counsel from the case in March 2009. Michele’s counsel’s notice of withdrawal stated under penalty of perjury that judgment had been entered on March 13, 2008, and gave Michele’s address as Lynwood Avenue in Santa Ana.

The ex parte application was denied pending a hearing, which took place on December 10, 2019. After hearing from Michele, who represented herself, the court entered judgment nunc pro tunc as of March 13, 2008. Michele filed a notice of appeal from the judgment nunc pro tunc on February 11, 2020.

While the appeal from the judgment nunc pro tunc was pending, Todd Hanna, who had been appointed Patrick’s special administrator by the probate court, moved in the family court proceeding to obtain a grant deed to the Barrett Lane house and to evict Michele. He stated that Michele had listed the house for sale at $1.4 million in January 2020, on the same day Todd Hanna had received his letters from the probate court, and was refusing to sign a grant deed transferring title to the house. In lieu of the grant deed, Todd Hanna asked for an undertaking from Michele during the pendency of the appeal from the judgment.

On March 16, 2020, the family court ruled that Michele had to file a $1.4 million bond to stay enforcement while the appeal from the judgment nunc pro tunc was pending. Michele filed a notice of appeal from this ruling – the present appeal – on June 3, 2020.

On April 14, 2020, this court issued an order granting Michele’s petition for a writ of supersedeas, staying enforcement of the $1.4 million bond and of efforts to evict her from Barrett Lane pending the appeal, i.e, the appeal from the judgment nunc pro tunc. We dissolved the family court’s stay as no longer necessary.

On December 14, 2020, we issued our opinion in the case involving the judgment nunc pro tunc. We affirmed the judgment. Remittitur was issued on February 16, 2021.

In the present appeal, Michele has made two requests for judicial notice. The first request is for notice of documents in this court’s file regarding Michele’s writ petition, but not for notice of the order on the writ petition itself. The second request is for notice of a motion to set aside the judgment nunc pro tunc, filed March 13, 2020, with an initial hearing date in May, and the reporter’s transcript of a hearing on September 4, 2020.

DISCUSSION

If such a thing were possible, this appeal would be doubly moot. The family court’s stay order from which Michele appeals was dissolved by this court in April 2020. It no longer exists. Even more fundamentally, the appeal during which the stay was to operate has been resolved. The judgment has been affirmed. Remittitur has been issued. (See In re Marriage of Brandes (2015) 239 Cal.App.4th 1461, 1490; Lester v. Lennane (2000) 84 Cal.App.4th 536, 566 [issue moot when court prevented from granting effectual relief].)

Michele argues that the appeal is not moot because she has filed a motion to set aside the judgment nunc pro tunc, resolution of which was postponed until we issued our opinion on the judgment. Regardless of the family court’s ruling on the set-aside motion, somebody is going to appeal it, so we should decide now whether a stay of enforcement of that ruling would be correct.

Doing so would constitute issuing an advisory opinion, and we do not provide those. (See Del Cerro Mobile Estates v. City of Placentia (2011) 197 Cal.App.4th 173, 186.) Given that there are proceedings in both the family court and the probate court regarding Patrick’s property, it behooves us to be especially cautious about wading in before the lower courts have finished their tasks.

Michele’s requests for judicial notice are denied. The first request is for documents from Michele’s writ petition in this court. As we stated in the first opinion, we can notice only the existence of these documents. Any statements made in them are hearsay. We may judicially notice the truth only of orders, judgments, and findings of fact and conclusions of law. (See Garcia v. Sterling (1985) 176 Cal.App.3d 17.) The second request is for documents regarding a set-aside motion and a reporter’s transcript. We can take judicial notice of the filing of the motion, i.e., its existence, but that is all. The reporter’s transcript, if offered for the truth of anything stated at the hearing, is hearsay. The existence of these documents has no bearing on the issues before us in this appeal. (See Cortez v. Purolater Air Filtration Products Co. (2000) 23 Cal.4th 163, 167, fn. 2.)

DISPOSITION

The appeal is dismissed as moot. Appellant’s requests for judicial notice are denied. Respondent is to recover costs on appeal.

___________________________

BEDSWORTH, ACTING P. J.

WE CONCUR:

___________________________

FYBEL, J.

___________________________

THOMPSON, J.

[1] IRMO Hanna (Dec. 14, 2020, G058872) [nonpub. opn.].