Opinion
A152137 A152963
08-07-2018
CAROLYN LAWS, as Trustee, etc., Plaintiff and Respondent, v. WILLIAM J. LAWS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FPR045231)
In these consolidated appeals, former trustee William J. Laws (William) challenges the probate court's appointment of an elisor to effect the transfer of real property in the face of his refusal to do so, and its denial of his motion to vacate an order removing him as trustee. We affirm the appointment of an elisor because William provides no argument on appeal challenging the order, and we dismiss the second appeal for lack of jurisdiction.
I. BACKGROUND
In March 2012, Carolyn Laws (Carolyn) filed a "Petition to Compel Trustee to Account" in the matter of the Medora D. Laws Trust, dated July 16, 1997 (Trust). Carolyn alleged she was a Trust beneficiary and William was the trustee. On January 27, 2017, following trial, the probate court found that William breached his fiduciary duties, removed him as trustee, appointed Carolyn as successor trustee, and ordered title to certain real property in Vallejo transferred from William's name back to the Trust.
Carolyn's request that we take judicial notice of the notice of entry of the January 27, 2017 order she served on William is construed as a motion to augment the record and granted. (See Cal. Rules of Court, rule 8.155(a).) Her request that we take judicial notice of an order filed in a related federal court action is denied because she does not explain the relevance of the document or cite to the document in her respondent's brief. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [only relevant material is proper subject of judicial notice], overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)
After a June 26, 2017 hearing, the court appointed an elisor to sign a grant deed transferring the Vallejo property to the Trust. (See Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 1020 ["court typically appoints an elisor to sign documents on behalf of a recalcitrant party in order to effectuate its judgments or orders, where the party refuses to execute such documents"].) William appealed that order on August 3, 2017 (appeal No. A152137).
On August 16, 2017, William filed a motion to vacate the January 27, 2017 order. In an order filed October 30, the court denied the motion on two grounds. First, the motion was improperly filed in pro per even though William had an attorney of record at the time of filing. Second, the motion was untimely under Code of Civil Procedure section 663a. William appealed this order on November 14 (appeal No. A152963).
Undesignated statutory references are to the Code of Civil Procedure.
On January 3, 2018, this court consolidated the two appeals.
We rejected William's prior appeals from orders requiring him to file amended accountings as trustee (Laws v. Laws (May 19, 2015, A142744) [nonpub. opn.]) and as probate executor (Laws v. Laws (May 19, 2015, A142743) [nonpub. opn.]).
II. DISCUSSION
A. Appeal No. A152137
We affirm the June 2017 order appointing an elisor. William submits no argument in his appellate briefing that the probate court erred in issuing the order and therefore has forfeited any claim of error. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"].) B. Appeal No. A152963
William's challenge to the October 2017 order denying his motion to vacate the January 27, 2017 order is dismissed for lack of jurisdiction.
Were it necessary to address the merits, we observe that William's motion to vacate does not appear timely. Under section 663a, a motion to vacate pursuant to section 663 must be filed "[w]ithin 15 days of . . . service upon [the moving party] by any party of written notice of entry of judgment." (§ 663a, subd. (a)(2).) Because Carolyn served William with written notice of entry of the January 27, 2017 order on February 8, William had only until February 23 to move to vacate the January 27 order pursuant to section 663. He did not file the motion until August, nearly six months later. William argues the running of the time limitation was tolled while the case was removed to federal court, but the case was not removed until March, by which time the 15-day limit had already expired. --------
In her respondent's brief, Carolyn incorrectly construes appeal No. A152963 as taken from the January 27, 2017 order. William's notice of appeal specifically identifies the October 2017 order as the appealed order and characterizes the appeal as such in his appellate briefs. Although Carolyn did not challenge this order's appealability, we raise the issue sua sponte because it affects our jurisdiction. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) We gave the parties an opportunity to address the appealability issue in supplemental briefs. (See Gov. Code, § 68081.)
William, citing cases from 1911 and 1927, argues "it is well settled in this state that an appeal lies from an order denying a motion to enter a new and different judgment under [section] 663." Current case law does, in fact, provide that orders denying statutory motions to vacate, including orders denying motions brought pursuant to section 663, are appealable as postjudgment orders in most actions. (See Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 127; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 2:171, p. 2-123.) However, this rule does not apply in probate proceedings.
"Probate Code provisions concerning appealability are exclusive. The appealability of probate disputes in general is governed by [Probate Code] section 1300. [Citations.] In addition, [Probate Code] section 1304 lists appealable orders in trust proceedings." (Kalenian v. Insen (2014) 225 Cal.App.4th 569, 575-576; § 904.1, subd. (a)(10).) The Supreme Court has held that a probate court order denying a motion to set aside an order pursuant to section 473 is not appealable because it is not listed as an appealable order in Probate Code sections 1300 and 1304. (Kalenian, at p. 576, citing In re Estate of O'Dea (1940) 15 Cal.2d 637, 638 and In re Conservatorship of Harvey (1970) 3 Cal.3d 646, 652.) We see no basis to distinguish orders denying motions to vacate pursuant to section 663, which also are not listed as appealable orders under the Probate Code. While Kalenian recognized an exception permitting an appeal where a party did not have a fair opportunity to appeal the underlying order and moved to set aside the judgment or order on equitable grounds (Kalenian, at pp. 576-579), that exception has no application here. William had a fair opportunity to appeal the January 27, 2017 order, but did not do so. He does not dispute that his attorney of record was served with notice of entry of that order, and he did not invoke equity to set aside the order.
III. DISPOSITION
The order appointing an elisor is affirmed. The appeal of the order denying William's motion to vacate the January 27, 2017 order is dismissed for lack of jurisdiction. William shall bear Carolyn's costs on appeal.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.