Opinion
A162167
06-15-2023
ALFRED McZEAL, JR., et al., Plaintiffs and Appellants, v. BENNETT HONG, as Trustee, etc., Defendant and Respondent.
NOT TO BE PUBLISHED
(City and County of San Francisco Super Ct. No. PTR 19-302802)
Fineman, J. [*]
In this appeal, Alfred McZeal, Jr., appearing in propria persona, contends that the probate court erred by quieting title and voiding a grant deed for a property deeded to him by Rene Del Prado. The court made that ruling in a September 2, 2020 order. On September 4, 2020, respondent Bennet Hong served McZeal with the notice of ruling. On September 24, 2020, McZeal filed an ex parte application (the ex parte) seeking to vacate the order, but the court never ruled on the application. Although a court's order quieting title and an order denying a motion to vacate can be appealed (Prob. Code, §§ 1300, subd. (c), 1304 [order]; Hughey v. City of Hayward (1994) 24 Cal.App.4th 206, 208 [motion to vacate]), McZeal failed to timely file his appeal. Thus, we must dismiss the untimely appeal for lack of appellate jurisdiction.
McZeal also purports to appeal from a judgment after a court trial. Yet, he fails to attach any judgment after court trial to his notice of appeal, the register of actions fails to demonstrate that there was any court trial or any judgment entered from a court trial, and he makes no argument in his brief about a court trial. He has thus waived this argument.
BACKGROUND
In a grant deed dated October 4, 2019, Rene Del Prado in the "stated capacities of, individually, as a co-trustee of the Del Prado Family Trust" transferred to McZeal's trust a property located in San Francisco, California. Hong, successor trustee of the Del Prado family trust, petitioned the court to void the grant deed, and the court held a hearing on August 17, 2020. In a written order dated September 2, 2020, the trial found that notice had been given to all interested parties and beneficiaries of the trust and further found that the grant deed was void ab initio because Rene Del Prado did not have the power or authority to transfer the property to McZeal or his trust. The court did not discuss if Rene Del Prado was ever a cotrustee of the trust or the reason there was a lack of authority. On September 4, 2020, Hong filed and served on McZeal by mail the notice of entry of order.
On October 22, 2019, the court appointed Hong as successor trustee and removed a prior trustee, Kathryn Guillen.
On September 24, 2020, McZeal filed the ex parte with a document title "Notice of Ex-Parte Application and Ex-Parte Application to Set Aside Order Quieting Title to Real Property Voiding Grant Deed and Lis Pend[ens] [sic] filed by Bennet Hong." McZeal requested in his application that the court "vacate the order." He sought to vacate the order on a myriad of grounds including that the court lacked jurisdiction because he was never served with the summons and complaint and his filing of bankruptcy automatically stayed the action. There is nothing further in the register of actions about this application. McZeal, in his notice of appeal, states that he is appealing from "Order denying Ex Parte by Judge Moody entered 2/3/21 from Ex Parte filed 9/24/2020" and he attaches a document, not in the court record, entitled "San Francisco Superior Court Probate Examiner's Notes" with a "[d]ate [p]repared of February 3, 2021" and a notation that "The Ex Parte filed 09/24/2020 has been denied by Judge Moody."
On February 24, 2021, McZeal filed this appeal.
DISCUSSION
Generally, a party must file a notice of appeal from an appealable order by the earliest of 60 days after the court clerk or a party serves a notice of entry or filed-endorsed copy of the order, or 180 days after its entry. (Cal. Rules of Court, rule 8.104(a)(1) &(e).) Since Hong served the notice of entry of order on September 4, 2020, McZeal had to file his notice of appeal no less than 60 days after notice of entry of order. McZeal filed his notice of appeal on February 24, 2021, 173 days after entry of order. Thus, his appeal is untimely by more than 100 days under this general rule.
All references to rules are to the California Rules of Court unless otherwise specified.
Rule 8.108(b) provides an exception when a party files a valid motion for new trial, motion to vacate the judgment, or motion for judgment notwithstanding the verdict. McZeal argues that the time for filing the notice of appeal was extended by the filing of a "valid motion for new trial or motion to vacate the judgment [rule 8.108(b)], which was never decided on by the trial court." He cites to his September 24, 2020 filing of the ex parte. McZeal requests in his ex parte that the court "VACATE" the order. For purposes of this appeal, the court considers McZeal's application a valid motion to vacate the judgment. However, even with the filing of the ex parte, his notice of appeal is untimely.
Although he references "new trial" in his opening brief, nothing in his ex parte or opening brief makes any further reference to a new trial. He has also waived this argument.
If a party files a valid motion to vacate judgment within the time to appeal, then the time to appeal is extended to the earliest of: "(1) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; [¶] (2) 90 days after the first notice of intention to move-or motion-is filed; or [¶] (3) 180 days after entry of judgment." (Rule 8.108(c).)
Rule 8.108(c)(1), which calculates the time to appeal from the date a court denies a motion to vacate, does not apply. As McZeal admits, the trial court did not rule on the motion. Even if the court were to consider the unauthenticated "Probate Examiner's Notes," which are not in the court file, McZeal's appeal is still untimely. The "notes" are not an order because they were not entered into the minutes or signed by a judge. (Prob. Code, § 1048, subd. (a) ["Except as provided in subdivision (b), orders shall be either entered at length in the minute book of the court or signed by the judge and filed"].) Accordingly, McZeal cannot appeal from these "notes." (Rule 8.108(c)(1); see also rule 8.100 (a)(1).) Further, rule 8.108(c)(1) also requires that the order be served by the superior court clerk or a party, which was not done in this case.
Rule 8.108(c)(2), which calculates the time to appeal from the date a notice of motion to vacate is filed, applies but does not assist McZeal because he did not file the notice of appeal within the statutory time. The time is extended "90 days after the first notice of . . . motion is filed." (Ibid.) The time from September 24, 2020, when McZeal filed the ex parte to February 24, 2021, when he filed his notice of appeal is 153 days. McZeal's notice of appeal was untimely by more than 60 days.
Rule 8.108(c)(3), which extends the time to appeal until 180 days after judgment, does not apply. Although McZeal filed the notice of appeal within 180 days after entry of order, rule 8.108(c)(2) rather than rule 8.108(c)(3) applies in this case because the time is extended "until the earliest" of the dates set forth in rule 8.108(c). The earliest date here is calculated from the 90 days after the filing of the ex parte rather than 180 days after judgment. Accordingly, McZeal's appeal is untimely even applying rule 8.108(c).
The law requires strict compliance for notices of appeal. (Rule 8.104(b).) "The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal." (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.)
DISPOSITION
The appeal is dismissed for lack of jurisdiction. Respondent Hong shall recover his costs on appeal. (Rule 8.278(a)(1)-(2).)
WE CONCUR: BROWN, P. J., STREETER, J.
[*] Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.