Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. PRO117966
Lambden, J.
Misha A. Rauchwerger, as guardian ad litem for Iain Conor Ward, filed a petition pursuant to Probate Code section 17200 et seq., on August 11, 2008, asking the court to ascertain the beneficiaries of the The Levin Great Grandchildren Trust dated September 8, 1999, Sam Levin, Settlor as amended (the trust). Rauchwerger requested a decree declaring Ward the beneficiary of the trust pursuant to Probate Code section 17200. On March 6, 2009, the lower court denied Rauchwerger’s petition, and Rauchwerger filed a notice of appeal on May 15, 2009. George Lowenthal, the trustee of the trust, filed a motion to dismiss the appeal as being untimely. For the reasons set forth below, we conclude that we do not have jurisdiction over the appeal and dismiss the appeal.
BACKGROUND
On August 11, 2008, Rauchwerger filed a petition requesting the lower court to ascertain the beneficiaries of the trust and to declare Ward the beneficiary of the trust pursuant to Probate Code section 17200. On March 6, 2009, the trial court denied the petition in its written “Decision.” At the end of its three-page, single-spaced “Decision,” the trial court stated: “The following ruling and order is made: Iain Conor Ward is not a beneficiary of the trust because he is not a person within the class of ‘great-grandchildren of Sam Levin to be born hereafter’––based on the construction of the trust documents, the intent of Trustor given his knowledge of Iain’s existence and his failure to include him by name or a reference to adoptive/stepchildren.” The clerk of the court filed an affidavit that she mailed the “Decision on Submitted Matter” to the attorneys for Rauchwerger and the trustee.
On March 16, 2009, the “Notice of Entry of Decision and Order” was signed by counsel for the trustee. This document was mailed to opposing counsel on March 17, 2009, and filed in the court on March 19, 2009.
On May 15, 2009, Rauchwerger filed her notice of appeal from “the Decision and Order of the above entitled court herein dated March 6, 2009[,] and filed herein March 6, 2009[,] and upon which Notice of Entry was served herein March 17, 2009[,] and filed March 19, 2009. This appeal is from the whole of such Decision and Order.”
The trustee filed a motion in this court to dismiss Rauchwerger’s appeal.
DISCUSSION
The trustee contends that Rauchwerger’s filing of the notice of appeal on May 15, 2009, was untimely, and we therefore must dismiss her appeal. The timely filing of a notice of appeal is mandatory and appellate courts are without jurisdiction to consider late appeals. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56, 61.) Other than exceptions set forth in rule 8.66 of the California Rules of Court, which are inapplicable here, no court may extend the time to file a notice of appeal. (Cal. Rules of Court, rule 8.104(b).)
“[A] notice of appeal must be filed on or before the earliest of: [¶] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [¶] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [¶] (3) 180 days after entry of judgment.” (Cal. Rules of Court, rule 8.104(a)(1) & (2).) Mailed service is complete at the time of deposit in the mail and receipt is presumed. (Code Civ. Proc., § 1013, subd. (a); Evid. Code, § 641.)
The trustee contends that the decision or order filed and mailed by the court clerk on March 6, 2009, was a judgment for the purposes of California Rules of Court, rule 8.104(a). Thus, the trustee asserts that Rauchwerger had to file her notice of appeal 60 days from this date, which was May 5, 2009. Rauchwerger did not file her notice of appeal until May 15, 2009, and the trustee argues that her notice of appeal was untimely. Rauchwerger disagrees and asserts that the document mailed on March 6, 2009, did not start the 60-day period to file a notice of appeal. Instead, Rauchwerger argues that the 60 days began to run from March 17, 2009, when the notice of entry of judgment was mailed. She filed her notice of appeal within 60 days of this latter date.
The issue presented by the trustee’s motion is whether the document issued by the lower court and mailed by the court’s clerk on March 6, 2009, was a copy of the judgment triggering the 60-day rule under California Rules of Court, rule 8.104(a). California Rules of Court, rule 8.104(f) defines “judgment” for purposes of the jurisdictional timelines in rule 8.104(a) to “include[ ] an appealable order.” Accordingly, the mailing by the court clerk of an appealable order is a judgment for purposes of assessing the time to seek appeal under rule 8.104(a).
The trial court’s “Decision” of March 6, 2009, expressly provided that the court was making “[t]he following ruling and order....” The court denied Rauchwerger’s petition under Probate Code section 17200 and ruled that Ward was not a beneficiary of the trust. Orders under section 17200, with two exceptions not relevant here, are themselves final and appealable under Probate Code section 1304, subdivision (a). (See Estate of Lock (1981) 122 Cal.App.3d 892, 896.)
Probate Code section 17200, subdivision (b)(4) reads: “Proceedings concerning the internal affairs of a trust include, but are not limited to, proceedings for any of the following purposes: [¶]... [¶] Ascertaining beneficiaries and determining to whom property shall pass or be delivered upon final or partial termination of the trust, to the extent the determination is not made by the trust instrument.”
Probate Code section 1304, subdivision (a) provides as follows: With respect to a trust, the grant or denial of the following orders is appealable: Any final order under Probate Code section 17200 except the following: “(1) Compelling the trustee to submit an account or report acts as trustee. [¶] (2) Accepting the resignation of the trustee.”
Rauchwerger contends that the document issued by the court on March 6, 2009, was not an order or judgment because it was designated a “Decision.” (See Jordan v. Malone (1992) 5 Cal.App.4th 18.) Rauchwerger asserts that the document triggering the 60-day time period to file a notice of appeal must be entitled “Notice of Entry.” (See Sunset Millennium Associates, LLC v. Le Songe, LLC (2006) 138 Cal.App.4th 256, 259-260 (Sunset Millennium).) Here, the March 6, 2009 document was labeled a “Decision” and the court clerk’s affidavit of mailing referred to it as a “Decision on Submitted Matter,” not a judgment or an order. Rauchwerger further argues that “[n]othing within the instrument informs the recipient that an order or judgment has been entered.”
The fact that the March 6, 2009 document is named a “Decision” is not dispositive. “[I]t is well settled that the substance or effect of the judgment and not its designation is determinative of its finality.” (Estate of Lock, supra, 122 Cal.App.3d at p. 896.) Thus, for example, in Estate of Conroy (1977) 67 Cal.App.3d 734, “the probate court signed and filed a document entitled ‘Decision,’ which, after specifying the judge’s reasons therefor, stated, ‘ “The amended Report of the Inheritance Tax Referee is hereby approved.” ’ (Id., p. 737, fn. 1.) In ruling that the ‘Decision’ was appealable, the court reasoned: ‘ “... since no particular language is requisite for an order, a trial judge’s written statement of his views on the law and the proper decision may be treated as an order when signed and filed and when it constitutes his final determination of the merits.” [Citation.] The use of the phrase “is hereby approved” would clearly indicate that the document entitled “Decision” was intended to be a final determination on the merits and therefore an order and should be treated as such although not properly labeled.’ (Id. at p. 737.)” (Estate of Lock, supra, at p. 897, discussing Estate of Conroy.)
In the present case, the language in the court’s “Decision” makes it clear that the court was issuing an order constituting a final determination on Rauchwerger’s petition. Indeed, the court stated that it was making the “following ruling and order” that Ward “is not a beneficiary of the trust....” Moreover, the ruling ascertained the beneficiaries of the trust and determined to whom property should pass; thus, this filed “Decision” was a final appealable order under Probate Code section 1304.
The present case differs significantly from the situation in Jordan v. Malone, supra, 5 Cal.App.4th 18, the case cited by Rauchwerger. In Jordan, the trial court’s statement of decision provided that judgment should enter for the defendant and the court directed the defendant to prepare the judgment. (Id. at p. 20.) The reviewing court concluded that the trial court statement was a tentative decision and the judgment had yet to be prepared and approved; therefore, this tentative decision did not commence the 60-day time period for filing a notice of appeal. (Id. at p. 21.) In contrast, here, the court’s decision expressly stated that it was an order and no further action was necessary for this order to take effect.
The other case upon which Rauchwerger relies, Sunset Millennium, supra, 138 Cal.App.4th 256, is inapplicable. The appellate court in Sunset Millennium held that a minute order must contain the language “Notice of Entry” to trigger the 60-day rule. (Sunset Millennium, supra, at pp. 259-260.) In the present case, however, the 60-day period started with the mailing of the judgment, not the mailing of the “Notice of Entry.” The “Notice of Entry” was served on counsel for Rauchwerger on March 17, 2009, but the mailing of the judgment was sent earlier, on March 6, 2009. Rule 8.104 of the California Rules of Court specifies that a notice of appeal must be filed on or before the earliest of 60 days after the court of the clerk mails the judgment or 60 days after the party filing the notice of appeal is served with the “Notice of Entry” of judgment. Accordingly, here, the critical date for triggering the 60-day period to file the notice of appeal was the mailing of the judgment or appealable order on March 6, 2009, not the mailing of the “Notice of Entry.”
We conclude that the 60-day time period to file the notice of appeal began on March 6, 2009, when the clerk of the court mailed the “Decision” that was a final appealable order. Under California Rules of Court, rule 8.104(a)(1), Rauchwerger had to file her notice of appeal by May 5, 2009. She did not file her notice of appeal until May 15, 2009; therefore, we have no jurisdiction over her appeal. We hereby dismiss the appeal.
We concur: Haerle, Acting P.J., Richman, J.