Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Kern County Superior Court. Louie L. Vega, Judge. Super. Ct. No. S-1500-PB-54991
Law Offices of Barry L. McCown and Barry L. McCown for Defendant and Appellant.
Law Offices of Larry L. Fields and Larry L. Fields for Plaintiff and Respondent.
Levy, J.
Appellant, Robert R. Mendez, purports to appeal from an order denying his motion to vacate or reconsider a previous order removing him as trustee of the Jovela R. Mendez Family Wealth Preservation Trust of 2003 (Trust). However, this is not an appealable order. Accordingly, we will dismiss the appeal.
BACKGROUND
The trustor, Jovela R. Mendez, died on June 4, 2005. Appellant is the trustor’s only surviving child and the successor trustee of the Trust. Respondent, Debra S. Mendez, is the mother of, and guardian ad litem for, Gregory Alan Mendez, a trust beneficiary.
In December 2005, respondent filed a petition to compel appellant to provide a trust accounting. In November 2006, respondent withdrew her petition after appellant agreed to file an accounting by the date ordered by the trial court. The court ordered appellant to submit an accounting for the period of June 4, 2005, through December 31, 2006, no later than January 25, 2007.
Appellant did not comply with this order. Thereafter, respondent made three separate written requests for the accounting. When an accounting was still not produced, respondent filed a petition to remove appellant as trustee and appoint a successor trustee on March 5, 2007. A hearing on this petition was scheduled for May 3, 2007, and all parties were served with notice. Neither appellant nor the persons nominated in the trust instrument as successor trustees filed an opposition or a request to be appointed trustee.
On May 3, 2007, respondent appeared with her counsel at the hearing on the petition. Respondent’s counsel informed the court that appellant’s counsel had contacted him by telephone the day before, May 2, believing that the hearing was that day, and stated that he would not appear because he was suffering from migraine headaches. According to respondent’s counsel, appellant’s counsel advised him that he would appear the next day to request a continuance of the hearing. The court trailed the hearing and when, an hour later, appellant’s counsel still had not appeared, the court granted the petition. The court removed appellant as trustee and appointed respondent as successor trustee.
The order on the petition to remove trustee was signed on June 14, 2007. Notice of entry of the order was filed with the court and served on appellant on June 20, 2007.
Appellant submitted an ex parte petition requesting an order shortening time along with a motion to vacate the order. However, the court returned the papers to appellant on June 29, 2007, noting that the order shortening time was not granted and informing appellant that if he wished “to file [a] motion on regular notice, please resubmit accordingly.”
Appellant then filed a “motion to vacate order or to modify temporary orders nunc pro tunc to conform to the trust instrument and to correct clerical and judicial errors in the order; or in the alternative, for reconsideration or a new hearing based on new facts and law not previously considered by the court.” Although appellant claims this motion was served on July 2, 2007, and “filed” in the probate examiner’s office on July 3, 2007, the motion reflects that it was actually filed on July 24, 2007.
In his motion to vacate/reconsider, appellant argued that the order was void because the court had no authority to appoint respondent as successor trustee under either the trust instrument or law. Appellant further argued that respondent’s counsel intentionally misled the court regarding appellant’s counsel’s failure to appear at the hearing. According to appellant, on May 2 respondent’s counsel assured appellant’s counsel that he would request a continuance if appellant’s counsel could not appear. Appellant also explained that his failure to oppose respondent’s petition was due to his counsel’s chronic illness.
The trial court denied appellant’s motion. The court found that: the motion was statutorily untimely; the motion did not allege new facts or any facts suggesting that the court should reconsider its decision; the trustee’s failure to comply with a court order and file an accounting constituted grounds for removal; there were no clerical errors in the order to be corrected; and the court had the power to appoint respondent as successor trustee.
Appellant appealed from the denial of his motion to vacate/reconsider the order granting respondent’s petition.
DISCUSSION
The orders that may be appealed from in probate matters are set forth in the Probate Code. There is no right to appeal from any orders not so specified. (Estate of O’Dea (1940) 15 Cal.2d 637, 638; Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1125-1126.) Appeals are limited in this manner to prevent estates from being unreasonably delayed. (Estate of Stoddart, supra, 115 Cal.App.4th at p. 1126.)
Neither an order denying reconsideration nor an order denying a motion to vacate is among the orders made appealable by the Probate Code. (Estate of Stoddart, supra, 115 Cal.App.4th at p. 1126; Conservatorship of Harvey (1970) 3 Cal.3d 646, 652.) Accordingly, appellant’s motion to vacate/reconsider the order removing him as trustee is not appealable. Since an appealable order or judgment is a jurisdictional prerequisite to an appeal, this appeal must be dismissed. (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292; Don Jose’s Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115, 119.)
Appellant argues that, because the June 14, 2007, order removing him as trustee was not given effect until after his motion to vacate/reconsider was denied, this appeal can go forward on issues pertaining to that June 14 order. The June 14 order removing a trustee and appointing a successor was appealable. (Prob. Code, §§ 1304, 17200, subd. (b).) However, this appeal is from the denial of the motion to vacate/reconsider. An appeal is limited to issues relating to the order appealed from. (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625.) Consequently, this court does not have jurisdiction to consider any issues relating to that June 14 order.
Moreover, the notice of appeal filed on January 14, 2008, was untimely as to the June 14, 2007, order. (Cal. Rules of Court, rules 8.104, 8.108, subds. (c) and (e).) Contrary to appellant’s position, the commencement of the time to appeal the June 14, 2007, order was not stayed by the pending motion to vacate/reconsider. (Cal. Rules of Court, rule 8.108, subds. (c) and (e).)
In contexts other than probate matters, an exception to the rule that the denial of a motion to vacate an appealable judgment is not appealable has been recognized where the judgment appealed from is void. In that situation, the denial of a motion to vacate is an order giving effect to a void judgment, and is itself void and appealable. (In re Marriage of Brockman (1987) 194 Cal.App.3d 1035, 1040.)
Appellant contends that the order appointing respondent as the successor trustee is void. According to appellant, the trial court lacked fundamental jurisdiction to grant this relief because the order violates the express terms of the Trust and the Probate Code.
A court lacks fundamental jurisdiction where there is an absence of authority over the subject matter or the parties or where the court has no power to act except in a particular manner. (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 538.) However, a mistaken application of the law or a grant of excess relief does not divest a court of fundamental jurisdiction. Rather, there must be a complete absence of power to accord relief. (Ibid.)
Subject matter jurisdiction is not at issue here. The probate court’s general jurisdiction encompasses the internal affairs of trusts. (Schwartz v. Labow (2008) 164 Cal.App.4th 417, 426.) Further, the trial court did not lack the power to make the order it did. “[T]he probate court has the ‘inherent power to decide all incidental issues necessary to carry out its express powers to supervise the administration of the trust.’ [Citation.]” (Id. at p. 427.) These powers include appointing or removing a trustee. (Prob. Code, § 17200, subd. (b)(10).) Further, the court has the power to appoint a trustee who was not nominated in the trust instrument. (Prob. Code, § 15660, subd. (d).)
The trial court’s order appointing respondent as the successor trustee is not void and the order denying appellant’s motion to vacate/reconsider that order is not appealable.
DISPOSITION
The appeal is dismissed. Costs on appeal are awarded to respondent.
WE CONCUR: Ardaiz, P.J., Kane, J.