Marriage of Nadjafinia CA4/2

Filed 4/18/23 Marriage of Nadjafinia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 PENINA AND
SAJON KAVEH NADJAFINIA.
PENINA NADJAFINIA,
E077183
Respondent,
(Super. Ct. No. FAMSS2001924)
v.
OPINION
SAJON KAVEH NADJAFINIA,
Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Dismissed.
Sajon Kaveh Nadjafinia, in pro. per. for Appellant.
The Law Office of Lauren Laundis and Laruen Laundis, for Respondent.
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I.
INTRODUCTION
In this marriage dissolution action, appellant Savon Kaveh Nadjafinia, proceeding
in pro. per., appeals the family court’s order finding that a house is the separate property
of wife, respondent Penina Nadjafinia, not community property. We conclude the order
is not appealable and dismiss the appeal.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, before the parties married, Penina’s parents gifted her a home on Sage
Drive in Loma Linda by grant deed. Only Penina was on the deed because her parents
wanted no one else on it. Penina added Sajon to the deed a few months later so that they
could use the property as collateral for a loan. The bank would not give them the loan
unless Sajon was added to the deed. They then used that loan to fund another loan in
2006, which resulted in a mortgage lien on the property.
Shortly after taking out the loan in 2006, Penina and Sajon got married. About a
year later, they took out another loan, which placed a second lien on the property. At the
time of the divorce proceedings, the property was encumbered with a mortgage of over
$437,000.
Penina petitioned for divorce in 2020. Sajon asked the family court to determine
whether the Sage Drive house was community property, as he argued, or Penina’s
separate property, as she argued. The family court held a hearing limited to deciding that
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issue. After receiving testimony, evidence, and argument from the parties, the family
court ruled that the Sage Drive house is Penina’s separate property. Sajon appealed.
III.
DISCUSSION
Penina argues Sajon’s appeal should be dismissed because the family court’s order
finding that the Sage Drive house is her separate property is not appealable. We agree.
Sajon argues the order is appealable under Code of Civil Procedure section 904.1,
subdivisions (a)(9) and (a)(10). Neither provision applies here.
Code of Civil Procedure section 904.1, subdivision (a)(9) provides that an appeal
may be taken from “an interlocutory judgment in an action for partition determining the
rights and interests of the respective parties and directing partition to be made.” (Italics
added.) There is no judgment, nor is this case an action for partition, so this section is
inapplicable.
Sajon contends Code of Civil Procedure section 904.1, subdivision (a)(9) “makes
appealable all orders providing for the delivery of possession or conveyance of real
estate.” In support, Sajon cites Williams v. Wells Fargo Bank & Union Trust Co. (1941)
17 Cal.2d 104, 106, and Gordan v. Graham (1908) 153 Cal. 297, 299-300. Neither case
supports him.
Williams, was “a partition action” where the trial court entered an order that
“determine[d] the ownership of the real property involved and describe[d] it as that
‘herein ordered and adjudged to be partitioned and for the purpose of such
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partitionment . . . ordered and directed to be sold.’” In other words, the order finally
adjudicated the parties’ rights to the property. (See Williams v. Wells Fargo Bank &
Union Trust Co, supra, 17 Cal.2d.)
Gordan was also “an action for partition” where the trial court ruled that the
petitioner was a one-third tenant in common of a property, but ordered it to be sold and
directed the petitioner to vacate the premises. (Gordan v. Graham, supra, 153 Cal. at p.
298.) Our Supreme Court held that an “interlocutory order directing a sale [of real
property] is to be regarded as a final judgment.” (Id. at p. 299.)
In this marriage dissolution action, however, the family court expressly
contemplated further proceedings concerning the Sage Drive property and the parties’
mortgage on it. The court did not direct its sale or finally determine the parties’ rights to
the property. The family court noted that Sajon might be entitled to offsets due to the
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improvements he made on the property and that the “house is subject to a Marsden.”
The court thus did not “mak[e] any orders regarding the actual mortgage or offsets”
because the court was “not sure how the calculations will end up coming out.” The
family court’s order is therefore not appealable under section 904.1, subdivision (a)(9) as
an interlocutory judgment, because it did not finally resolve the parties’ rights to the Sage
Drive property and its mortgage. (See In re Marriage of Skelley (1976) 18 Cal.3d 365,
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The “Moore/Marsden rule” provides that “[w]hen community property is used
to reduce the principal balance of a mortgage on one spouse’s separate property, the
community acquires a pro tanto interest in the property.” (Bono v. Clark (2002) 103
Cal.App.4th 1409, 1421-1422.
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368; Degnan v. Morrow (1969) 2 Cal.App.3d 358, 602 [partnership partition order not
appealable because it contemplated further proceedings on accounting, dissolution, and
partition].)
Nor is the order appealable under Code of Civil Procedure section 904.1,
subdivision (a)(10). That provision provides that an appeal may be taken “an order made
appealable by the Probate Code or the Family Code.” Sajon argues, without explanation,
that the family court’s order is appealable under Family Code section 2555. That
provision states in full: “The disposition of the community estate, as provided in this
division, is subject to revision on appeal in all particulars, including those which are
stated to be in the discretion of the court.” The statute states that it is applicable to those
provisions under “this division.” “[T]his division” refers to Division 7 of the Family
Code concerning division of property. In short, Family Code section 2555 grants the
appellate court the authority to revise the disposition of community property, but it does
not confer or expand appellate jurisdiction. (See In re Marriage of Mohler (2020) 47
Cal.App.5th 788, 797.) Sajon cites no authority to support his position that the statute
provides appellate jurisdiction here, and we are unaware of any.
“The existence of an appealable judgment is a jurisdictional prerequisite to an
appeal.” (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292.) As the appellant, Sajon
bears the burden of proving that the family court’s order is appealable. (Cal. Rules of
Court, rule 8.204(a)(2)(B); Lester v. Lennane (2000) 84 Cal.App.4th 536, 557.) He has
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failed to do so. Because there is no appealable order, we must dismiss Sajon’s appeal.
(In re Mario C. (2004) 124 Cal.App.4th 1303, 1307.)
IV.
DISPOSITION
Sajon’s appeal is dismissed. Penina may recover her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
SLOUGH
J.
RAPHAEL
J.
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