Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. PR044213
ELIA, J.Appellant Dennis McBride seeks review of an order directing the filing of objections and reports for the purpose of appointing a successor trustee for the trust of which appellant was a beneficiary. We conclude that none of the issues appellant raises is reviewable, as he has appealed from a nonappealable order. Some of his complaints are repeated in his companion appeal (H035399), which we address in a separate opinion.
This court ordered the two appeals to be considered together.
Background
Appellant's mother, Josephine Bell, set up the Dennis McBride Trust and allocated to it 50 percent of the assets in the Josephine Bell Living Trust. Under the terms of the living trust, Bell's son-in-law, respondent Michael Hall, was to be the successor trustee upon her death. In the event that he was unable or unwilling to serve, the successor trustee was to be Fidelity Investments. Bell died on February 26, 2007, one week after executing the trust.
On July 20, 2009, respondent's attorney, Dennis B. Lippitt, wrote to the beneficiaries to announce that "acrimonious communications from one or more of the Beneficiaries" had reached the point that respondent had "no option but to resign, " effective 30 days later. Lippitt advised them that Fidelity Investments, the alternate successor trustee named in the trust, would not handle this account, as the balance was less than $300,000. He suggested that one of the family members step forward to assume the role; otherwise, a professional fiduciary would be needed. Lippitt also informed them that an accounting and petition for judicial approval and settlement was forthcoming.
On September 9, 2009, appellant filed a Petition to Remove Trustee. Appellant accused respondent of mishandling trust funds, but he did not address the need for a successor to respondent. On October 2, 2009, respondent filed his accounting and report, combined with a petition for settlement and appointment of a successor trustee. In this document he requested an order appointing a professional trustee to replace him, as no family members had volunteered to become the successor trustee.
The hearing on appellant's petition took place on October 6, 2009. Lippitt had called to notify the court that he would be unable to attend. The court asked appellant whether he was seeking anything other than removal of respondent as trustee. Appellant noted his accusations of improper handling of trust funds; but the court noted that he had not requested any sort of recovery or other relief. Appellant understood, and suggested that the trust be turned over to him. The court asked whether appellant was the sole beneficiary, to which appellant stated (incorrectly) that he was. The court then pointed out that appellant had not requested appointment as trustee; but it acknowledged that "someone has to act as the Trustee." The court directed appellant to prepare an order for the court's signature; in the order he was to relate the events of the hearing and direct the removal of respondent and appointment of appellant. Appellant was to serve the proposed order on respondent, who would have five days to object before the court signed it.
The next day, October 7, 2009, respondent did object, by letter to the court from Lippitt. Lippitt represented that in his telephone call to the court the previous day, he had stated his position that appellant's petition should be considered together with respondent's own petition, which was scheduled for hearing on November 4, 2009. Lippitt also expressed the view that appellant was not an appropriate successor trustee, because the trust had already named a successor other than appellant, and appellant's lifestyle was such that he was likely to deplete the trust resources. Lippitt also pointed out that of the numerous family beneficiaries (which included great-grandchildren), only appellant was to receive his share in a trust, which was to endure until he turned 100.
In a follow-up letter on October 8, Lippitt reiterated his objection and voiced his concern that appellant might obtain a signature on his proposed order without showing it to respondent, by falsely representing that respondent had consented, or even by forging Lippitt's name on the approval line. Lippitt again requested a joint hearing of all issues at the November 4, 2009 hearing.
In light of respondent's objection, the court stayed the order appointing appellant successor trustee pending the next hearing. Respondent filed his formal objection and response to appellant's petition on October 29, 2009.
At the November 4 hearing, the court first addressed appellant's petition for removal of respondent as trustee. It expressly found that the accusations of misconduct by respondent had not been proved. Correcting appellant's impression that respondent had effectively resigned, the court explained to appellant that the resignation was not effective until ordered by the court; and such an order had not been formally made before the court received respondent's objection.
As appellant's sister, Renee Hall, had recently indicated a willingness to serve as trustee, the court asked appellant whether he had any objection to that resolution. Appellant replied, "For the record, I have objections to this whole hearing." When asked for specific objections, appellant asserted that he thought he could prove that $60,000 was "missing." The court determined that further hearing would be necessary. It directed appellant to file written objections at least 15 days before the next hearing date, which was December 3, 2009. Respondent would have an opportunity to reply at least five days before the hearing date. In the meantime, the court ordered the filing of Renee Hall's notification of willingness to serve.
Discussion
Appellant filed his notice of appeal on November 19, 2009. His Civil Case Information Statement indicates that he is appealing from an order made on November 4, 2009. The only November 2009 order, however, was made on November 30, 2009, after the November 4 hearing and after appellant filed his notice of appeal. In an attachment to the statement, appellant implicitly acknowledged that his notice of appeal was premature by citing the text of the California Rules of Court governing premature notices of appeal. (See Cal. Rules of Court, rule 8.104(d).) He is correct; the appeal clearly is premature. Nevertheless, we have discretion to construe a premature notice of appeal as filed after the order to which it pertains, and we elect to do so. (Cal. Rules of Court, rule 8.104(d)(2).)
Respondent asks that we dismiss this appeal as taken from a nonappealable order, which he assumes is either the stay of the October 6, 2009 order or the November 4, 2009 disposition. Having construed appellant's notice of appeal as taken from the November 30, 2009 order, we proceed to examine that written order, not the rulings made in October or at the November 4 hearing, to determine appealability.
In his notice of appeal appellant stated that he was appealing under Probate Code section 1304, subdivision (a), which permits an appeal from "[a]ny final order" made under section 17200, subdivision (b)(10), "[a]ppointing or removing a trustee." A "final order" generally is one that ends the litigation on the merits. (See Northern Trust Bank v. Pineda (1997) 58 Cal.App.4th 603, 607 [appeal dismissed because no final order entered].)
Examination of the November 30, 2009 order reveals the procedural deficiency of this appeal. The court did not formally remove respondent or appoint a successor trustee, either in this order or orally at the preceding hearing. Instead, the court only anticipated the discharge of respondent and the appointment of a successor at the next hearing on December 3, 2009. The written order set forth the deadlines for appellant to file written objections to the appointment of one of his sisters as trustee, for respondent's reply, and for respondent's supplemental update to his accounting and report. Finally, the order expressed the court's expectation that respondent would be "formally" discharged as trustee at the conclusion of the December 3 hearing.
In his Civil Case Information Statement, appellant acknowledged that the order from which he was appealing did not "dispose of all causes of action." He attempted to explain why the order was nonetheless appealable by blaming "judicial misconduct" and "gross favoritism for the opposing party" for the defect. Appellant's excuse is itself patently deficient. His brief consists of intemperate allegations that Lippitt, the judge, or both were "deliberately lying." He asserts "willful misconduct" and bias by the judge, for having "willingly altered" the October 6, 2009 minute order "to deceive with reckless indifference to the harm it would cause Appellant."
The calumnious, often sarcastic, accusations in appellant's diatribe are unsupported by anything in the appellate record. In any event, blaming the conduct of opposing counsel and the court cannot transform a nonappealable ruling into a reviewable order. "The existence of an appealable judgment is a jurisdictional prerequisite to an appeal." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) "California is governed by the 'one final judgment' rule which provides 'interlocutory or interim orders are not appealable, but are only "reviewable on appeal" from the final judgment.' [Citation.] The rule was designed to prevent piecemeal dispositions and costly multiple appeals which burden the court and impede the judicial process." (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292-1293; County of San Diego v. Arzaga (2007) 152 Cal.App.4th 1336, 1343-1344.) Thus, "if further judicial action is required for a final determination of the rights of the parties, the decree is interlocutory" and nonappealable. (Doran v. Magan, supra, 76 Cal.App.4th at p. 1293.)
Appellant is correct that the November 4 ruling did not constitute a final judgment. But neither is the ensuing written order of November 30 reflecting that ruling. It plainly contemplated and intended further preparation and argument by the parties, after which the court would hear and adjudicate the issues before it. Because this appeal is taken from a nonappealable order we must dismiss it for lack of jurisdiction.
That adjudication was to take place on December 3, 2009. There is no written order in the record before us resulting from that hearing. The reporter's transcript, however, reveals that the court continued the proceedings yet again, for receipt of appellant's written objections to respondent's accounting. The intended appointment of Renee Hall as successor trustee (to which appellant expressly stated he had no objection) was deferred until the next hearing on January 12, 2010, and then deferred again until February 19, 2010. Neither of these 2010 proceedings is properly before us in this appeal. The issues arising on those occasions are addressed in appellant's companion appeal, H035399, which we have ordered to be considered with this one.
Disposition
The appeal from the order of November 30, 2009, which we have deemed to be the applicable order designated in the notice of appeal, is dismissed.
WE CONCUR: RUSHING, P. J., PREMO, J.