Opinion
C037893.
10-8-2003
PATRICK CASSIDY et al., Plaintiffs, Cross-Defendants and Appellants, v. JAMES M. CASSIDY, Defendant, Cross-Complainant and Respondent.
Brothers James and Patrick Cassidy, at odds over the distribution of their father Harrys property after his death, are ensnarled in litigation.[] During a squabble over ownership of a house formerly owned by Harry and bequeathed to his daughter Sharon, Patrick and Bonita Cassidy (Patrick) sought a restraining order under Code of Civil Procedure section 527.6 to restrain James from harassing them.[] In perfect symmetry, James filed an identical action against Patrick. The trial court granted Jamess petition, ordering Patrick to stay away from both James and the disputed residence. Patrick, proceeding in propria persona, appeals, asserting a barrage of procedural and evidentiary errors. Mirror-like, James, also proceeding in propria persona, responds, likewise asserting a barrage of procedural errors on the part of Patrick. We shall reverse the judgment.
We refer to the parties by their first names for clarity and simplicity. No disrespect is intended.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Harry, the father of warring brothers Patrick and James, established a trust that left the disputed Stockton house to his daughter Sharon. After Harrys death, Sharon executed a document stating: "I, Sharon Cassidy . . . give permission to Patrick and [Bonita] Cassidy to stay at my house at 35 W. El Campo. Anyone entering without their permission is subject to arrest for tresspassing [sic ]." Patrick began living in the house.
Subsequently, Sharon executed a disclaimer dated April 7, 2000, which states: "The undersigned, Sharon Cassidy . . . , hereby irrevocably and unqualifiedly refuses to accept the real property located at 35 West El Campo . . . bequeathed to her pursuant to . . . the . . . Trust." James then executed and filed a "Waiver of Right to Disclaim," stating: "I irrevocably waive the right to disclaim my interest in the residence at 35 W. El Campo . . . . I will accept the property." Another of the warring Cassidy clan, brother Timothy, trustee of the trust, subsequently filed a deed conveying the property from Timothy, as trustee, to James.
Because of the procedural claims made by both sides, a chronology of the following litigation is necessary. On September 5, 2000, Patrick filed a petition for injunction prohibiting harassment. (§ 527.6.) Patrick, cleaving to Sharons original document giving him permission to reside in the house, disputed the legitimacy of her subsequent disclaimer, the deed to James, and Jamess waiver of right to disclaim. According to Patrick, James entered the house while he was away, changed the locks, removed furnishings, and rummaged through personal property. James later demanded Patrick vacate the premises. James then used other family members to inform Patrick that remaining in the house would be dangerous, since James had hired a "thumper" to beat up Patrick. According to Patrick, James reentered the residence the following week and again changed the locks. Patrick contended his "license" to occupy the premises had not been revoked by Sharon and sought an injunction against any further efforts by James to oust him. Patrick asserted James effectively evicted him by August 23, 2000, by changing the locks, removing the refrigerator and furnishings, and removing Patricks personal property.
On September 5, 2000, the trial court granted Patrick a temporary restraining order against James and set an order to show cause hearing for September 25, 2000. Patrick returned to the residence for one night on September 13, 2000, but left the following day.
On September 14, 2000, James filed an ex parte application for an order terminating the courts September 5 order. In support of the application, James submitted a declaration by Sharon stating she never had a landlord-tenant relationship with Patrick. She also stated Patrick stayed at the Stockton residence as her guest and reaffirmed her disclaimer of the property. James also filed his own declaration, stating he became concerned about Patricks occupancy of the house when he discovered Patrick had marijuana on the premises. James stated that his concern stemmed, in part, from the asset forfeiture laws. He also described vandalism and safety violations by Patrick.
On September 15, 2000, the trial court heard Jamess ex parte application. The court terminated the September 5 temporary restraining order pending the scheduled order to show cause hearing on September 25, 2000.
James filed a cross-petition for injunction prohibiting harassment. In his cross-petition, James alleged Patrick burglarized the residence, used marijuana at the residence, and removed property from the residence. Patrick requested the court enjoin Patrick from coming within 10 yards of James and the disputed residence.
In response to the cross-petition, Patrick requested a continuance of the September 25 hearing. Patrick sought additional time to refute matters presented at the September 15, 2000, hearing. The court granted the request and continued the hearing to October 10, 2000.
Prior to the hearing, Patrick filed a trial brief setting forth his arguments for possession of the house. Patrick argued he occupied the residence under a written tenancy-at-will agreement with Sharon. He alleged James resorted to a self-help eviction and requested an injunction against James for his illegal behavior.
Following the October 10, 2000, hearing, the trial court denied Patricks petition for injunction prohibiting harassment and granted Jamess petition. The order enjoins Patrick from coming within 10 yards of both James and the residence. The order further states Patrick "shall not initiate, file or cause to be filed any petition for an order prohibiting harassment which prevents, prohibits or interferes with the access to, repair or remodeling of, sale or lease of, or use of the premises . . . ." The record contains no reporters transcript of the hearing.
The hearing resulted in two separate orders by the trial court. An initial order after hearing was filed on October 18, 2000, and notice was served on Patrick the same day. A second order, further specifying the restrictions on Patrick, was filed on October 26, 2000, and served on November 3, 2000.
Patrick filed a "Notice of Motion, and Motion, to Vacate, Pursuant to CCP § 473(b)(d)" on January 2, 2001. At the February 7, 2001, hearing on the motion, the trial court determined the motion to vacate was actually a motion for reconsideration under section 1008 and was thus untimely. Notice of the order denying the motion was mailed on February 22, 2001. Patrick filed a notice of appeal on March 15, 2001.
DISCUSSION
I
James contends we lack jurisdiction to consider Patricks appeal. James contends Patricks appeal of the courts October 18, 2000, order following the October 10, 2000, hearing was untimely because Patricks January 2, 2001, motion to vacate was an untimely motion for reconsideration.
Under California Rules of Court, rule 2(a), with some exceptions, a notice of appeal from a judgment must be filed on or before the earliest of the following dates: "(1) 60 days after the date of mailing by the clerk of the court of a document entitled `notice of entry of judgment; (2) 60 days after the date of service of a document entitled `notice of entry of judgment by any party upon the party filing the notice of appeal, or by the party filing the notice of appeal; or (3) 180 days after the date of entry of the judgment."
James argues Patrick failed to appeal from the October 18, 2000, order within the 60-day limit and is thus precluded from challenging these orders on appeal.
The October 10, 2000, hearing resulted in two orders. The initial order, entitled simply "Order After Hearing," was served on Patrick on October 18, 2000. The second order, accompanied by a "Notice of Entry of Order After Hearing on Petition for Injunction Prohibiting Harassment," was served on November 3, 2000. This latter order comports with the requirements of California Rules of Court, rule 2(a), a document entitled "notice of entry" of judgment filed by a party upon the party filing the notice of appeal. Therefore, the 60-day period within which to file an appeal commenced on November 3, 2000.
Prior to the expiration of the limitations period for appeal, on January 2, 2001, Patrick filed a "Notice of Motion, and Motion, to Vacate, Pursuant to CCP § 473(b)(d)." In the motion, Patrick asserts James obtained the restraining order through fraud and "due to the surprise, mistake, excusable neglect and inadvertence of Patrick and Bonita Cassidy . . . ."
The accompanying memorandum of points and authorities in support of the motion to vacate expansively argues that the court acted in excess of its jurisdiction in issuing the restraining order. The "fraud" and "mistake" the memorandum cites in support of the motion to vacate consist of mistakes Patrick made in presenting the case to the trial court and a recapitulation of allegations of Jamess nefarious methods of presenting his case.
Under section 473, motion to vacate, the trial court has discretion to relieve a party from a judgment or order taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Courts have included fraud as an even more compelling ground for relief than mistake. A motion to vacate must be filed within six months. An order denying a motion to vacate is appealable. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611; 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment, § 159, p. 661.)
At oral argument on the motion, the trial court stated: "Actually, Patrick, theres no such thing as a motion to vacate. Actually what you wanted was a motion to reconsider under 1008 of the civil code, and a motion to reconsider has to be filed . . . [¶] . . . [& para;] 10 days . . . ." The court then denied the motion as untimely.
James seizes upon the courts characterization of the motion as a motion for reconsideration. He argues that since the motion filed within the limitations period was incorrectly labeled a motion to vacate, the time to appeal expired long before Patrick filed the instant notice of appeal on March 15, 2001. In other words, by incorrectly characterizing the motion, Patrick failed to preserve his right to appeal.
James is mistaken. Under California Rules of Court, rule 3(b), "When a valid notice of intention to move to vacate a judgment . . . is served and filed by any party on any ground, within the time in which, under rule 2, a notice of appeal may be filed . . . , the time for filing the notice of appeal from the judgment is extended for all parties until the earliest of 30 days after entry of the order denying the motion to vacate; or 90 days after filing the first notice of intention to move to vacate the judgment; or 180 days after entry of the judgment." Here, Patrick filed a motion to vacate based on recognized grounds: fraud and mistake.
In addition, the substantive merit of a motion to vacate made on recognized grounds has no bearing on the propriety of a California Rules of Court, rule 3(b) extension. According to the advisory committee comment, rule 3(b): "As used in these provisions, the word `valid means only that the motion or notice complies with all procedural requirements; it does not mean that the motion or notice must also be substantively meritorious. For example, under the revised rule a timely new trial motion on the ground of excessive damages [citation] extends the time to appeal from the judgment even if the trial court ultimately determines the damages were not excessive. Similarly, a timely motion to reconsider [citation] extends the time to appeal from an appealable order for which reconsideration was sought even if the trial court ultimately determines the motion was not `based upon new or different facts, circumstances, or law, . . . ."
Therefore, Patricks motion, which stated recognized grounds for a motion to vacate, was a valid motion to vacate regardless of the courts ultimate determination of the substantive merits of the motion. The court denied the motion to vacate and entered judgment on February 15, 2001, and notice was mailed February 22, 2001. Patrick filed his notice of appeal on March 15, 2001, within the 30-day extended period for an appeal provided by rule 3(b) of the California Rules of Court. Therefore, the appeal is properly before us.
II
Patrick argues a lack of substantial evidence to support the judgment and asserts various other claims resting in whole or part on the factual record. The lack of a reporters transcript of the October 10, 2000, hearing limits our ability to review his contentions. In a judgment roll appeal based on the clerks transcript, every presumption is in favor of the validity of the judgment and any condition of facts consistent with its validity will be presumed to have existed rather than one that will defeat it. The sufficiency of the evidence to support the findings is not open to review. Furthermore, the trial courts findings of fact and conclusions of law are presumed to be supported by substantial evidence and are binding, unless the judgment is not supported by the findings and reversible error appears on the face of the record. (Estate of Fain (1999) 75 Cal.App.4th 973, 992 (Fain); Kennedy v. Taylor (1984) 155 Cal.App.3d 126; 128.)
The restrictive rules of review that apply in the absence of a reporters transcript frequently preordain the demise of an appeal unless error appears on the face of the record. Recognizing the critical importance of a reporters transcript, Patrick contends the court committed prejudicial error by failing to record the October 10, 2000, hearing or to give advance notice as required by California Rules of Court, rule 891. According to Patrick, the court failed to post the rules concerning availability of court reporters and failed to obtain a written waiver of the parties.
California Rules of Court, rule 891(b)(1) states: "Each trial court shall adopt and post in the clerks office a local policy enumerating the departments in which the services of official court reporters are normally available, and the departments in which the services of official court reporters are not normally available during regular court hours. If the services of official court reporters are normally available in a department only for certain types of matters, those matters shall be identified in the policy. [¶] The court shall publish its policy in a newspaper . . . . In lieu of publishing the policy, the court may (i) send each party a copy of the policy at least 10 days before any hearing . . . , or (ii) adopt the policy as a local rule."
The San Joaquin Superior Court has adopted a rule setting forth its policy regarding court reporters, as required by California Rules of Court, rule 891(b)(1). The Superior Court of San Joaquin County, Local Rules, rule 1-103 states: "An official court reporter shall report the following court proceedings (including trial) whether contested or uncontested: [¶] a. Civil jury trials; [¶] b. Juvenile proceedings; [¶] c. Any court proceedings ordered by the court; and [¶] d. Any other court proceeding for which a party requests a court reporter in accordance with Rule 117, subdivision (b)."
In his motion to vacate, Patrick declares, under penalty of perjury, that despite the requirement of California Rules of Court, rule 891(b)(1), "the San Joaquin County Superior Court Clerks Office does not have such a policy posted anywhere in the Clerks Office." According to Patricks declaration, he and Bonita were "taken by complete surprise when they tried to order a transcript of the October 10, 2000 proceedings, and were informed by the court reporter who was present during the proceedings that she had not bothered to report the trial, so there was no transcript. The entire trial was off the record."
James does not offer any evidence to contradict the lack of posting of the policy. He argues the Superior Court of San Joaquin County, Local Rules, rule 1-103 placed Patrick on notice that the proceedings would not be recorded. However, the mere existence of a local rule does not satisfy the requirements of California Rules of Court, rule 891(b)(1), which requires the trial court to adopt and post in the clerks office a local policy outlining the availability of court reporters. The adoption of the policy as a local rule obviates the need to publish the policy in a newspaper; it does not negate the requirement to post the policy in the clerks office.
Given the restrictive scope of review resulting from the lack of a reporters transcript, the failure of the clerks office to post the availability of court reporting services severely prejudiced Patrick. The courts denial of Patricks motion to vacate deprived him of the opportunity to present his case on appeal and constituted an abuse of discretion. We therefore reverse the judgment.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with directions to vacate its orders granting Jamess petition for injunction prohibiting harassment. Patrick shall recover costs on appeal.
We concur: SIMS, Acting P.J., KOLKEY, J.