Filed 11/30/18 Bautista v. Griffin CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
|
LEO BAUTISTA, as Trustee, etc., Plaintiff and Respondent, v. ALAN GRIFFIN, Defendant and Appellant. |
A153639
(Alameda County Super. Ct. No. RP17844548) |
Alan Griffin, in propria persona, challenges several orders of the probate court relating to the administration of the Kurt Markstein Revocable Trust. We affirm.
I. BACKGROUND
We set forth only facts necessary to the determination of this appeal.
Griffin is a beneficiary of the Kurt Markstein Revocable Trust (the trust). Leo Bautista was appointed successor trustee by Kurt Markstein shortly before Markstein died. After Markstein died, Bautista was appointed special administrator in probate to resolve a pending civil action in which Kurt Markstein was a plaintiff and cross-defendant. After the civil case settled and probate administration was terminated, Bautista filed a notice of proposed action, proposing final distribution of the estate assets to the trust beneficiaries.
Griffin objected to Bautista’s notice of proposed action in January 2017 with a “motion to correct accounting and distribution document.” Bautista responded by filing a petition for approval of trustee’s accounting on April 3, 2017. A few weeks later, the probate court denied an ex parte motion for entry of default that Griffin had filed. Griffin also filed a motion for summary judgment in April 2017 that was subsequently denied. Griffin did not designate for inclusion in the record on appeal either his ex parte motion for entry of default or his motion for summary judgment. Bautista filed an amended petition for approval of trustee’s accountings on July 31, 2017.
In September 2017, the probate court appointed a special master to undertake a review of Bautista’s petition for approval of account. On January 2, 2018, the special master recommended the amended petition be approved. After hearing Griffin’s objections at a hearing on January 12, 2018, the probate court entered an order approving the petition. Griffin filed his notice of appeal shortly thereafter.
II. DISCUSSION
Though not entirely clear from his briefs, it appears Griffin challenges the probate court’s denial of his ex parte motion for entry of default judgment on April 26, 2017 and its denial of Griffin’s motion for summary judgment on July 31, 2017. His notice of appeal was filed on February 9, 2018.
Bautista contends Griffin’s notice of appeal was untimely as to both orders. Were they immediately appealable orders, that would undoubtedly be true. A notice of appeal must be filed “on or before the earliest of: [¶] (1) [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment . . . ; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of Judgment . . . ; or [¶] (C) 180 days after entry of judgment.” (Cal. Rules of Court, rule 8.104(a)(1)(A)–(C); Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 [“The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal.”]; Cal. Rules of Court, rule 8.104(b) [“If a notice of appeal is filed late, the reviewing court must dismiss the appeal.”].)[1] Because Griffin’s appeal was filed more than 180 days after both orders, his appeal would be untimely if the orders were directly appealable.
The probate court’s order denying Griffin’s motion for summary judgment, however, is not an appealable order, nor does it appear the order denying Griffin’s ex parte motion for entry of default is appealable. (See Code Civ. Proc., § 904.1; Prob. Code, § 1304; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 946 [order denying summary judgment is not itself appealable but may be reviewed on appeal from final judgment]; see, e.g., Leo v. Dunlap (1968) 260 Cal.App.2d 24, 25 [no appeal lies from order granting motion to vacate default upon which no default judgment has been entered]; Winter v. Rice (1986) 176 Cal.App.3d 679, 682 [no direct appeal lies from order denying a motion to vacate default; such order may only be reviewed on appeal from judgment].) Regardless, even if review were appropriate on appeal from the order approving the trustee’s accounting petition, Griffin has failed to provide us with an adequate record. He did not designate his motion for summary judgment nor his motion for ex parte relief in the record on appeal, nor has he provided a reporter’s transcript from either hearing at which the motions were decided.[2] (Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 643–644 [where appellant fails to provide adequate record, appellate court must presume the appealed judgment or order is correct]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574–575.) Griffin also does not explain why the probate court erred in denying either motion.[3] Accordingly, we must affirm. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557 [appellant must affirmatively demonstrate prejudicial error based on sufficient legal argument supported by citation to adequate record].)
To the extent we can discern his other arguments, it appears Griffin challenges the amount of time he was given to review and object to the special master’s report, and objects to the probate court’s January 12, 2018 order approving the final accounting because Bautista’s petition and amended petition for final accounting were “frivolous,” “moot and unnecessary.”[4]
As to his contention he is entitled to 30 days to review the special master’s report, Griffin cites no legal authority. Code of Civil Procedure section 643, subdivision (c) provides that objections must be filed within 10 days after the report is filed and served. The special master filed and served his report on Griffin and the other parties to the proceeding on January 2, 2018. The probate court allowed Griffin to state his objections on the record at the January 12, 2018 hearing, and after hearing them, denied Griffin’s request for a continuance and approved the final accounting. Griffin has not shown that was an abuse of the probate court’s discretion. (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170 [power to determine whether a continuance should be granted is within the discretion of the court].)
Griffin’s argument the petition and amended petition for final accounting were frivolous is likewise unsupported by coherent argument or apposite legal authority. It is appellant’s burden to affirmatively demonstrate error. (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at pp. 556–557.) We presume the probate court’s order is correct, and all presumptions are indulged to support it on matters as to which the record is silent. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
We recognize Griffin is proceeding in pro. per., but “[w]hile a party may choose to act as his or her own attorney, ‘ “[s]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.’ ” (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 208.) Because he has failed to demonstrate any reversible error, we affirm.
III. DISPOSTION
The probate court’s January 12, 2018 order approving Bautista’s final accounting and petition for final distribution is affirmed. Bautista is entitled to costs on appeal.
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Margulies, J.
We concur:
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Humes, P. J.
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Kelly, J.*
A153639
Bautista v. Griffin
[1] Bautista asserts the appeal is untimely as to the April and July orders because they were not filed within 60 days of the date the court clerk mailed copies of the orders to the parties. The 60-day appellate deadline would not apply because those notices were not “document[s] entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment . . . .” (Cal. Rules of Court, rule 8.104(a)(1)(A).)
[2] Bautista provided the reporter’s transcript from the July 31, 2017 hearing on Griffin’s motion for summary judgment, but no error is apparent on the face of the record.
[3] Indeed, Griffin confusingly argues he obtained a default judgment for the sum of $149,000, but the record reflects the court denied his motion for entry of default and no default judgment was ever entered.
[4] Griffin also contends “Respondent is barred from moving in this matter pursuant to Civil Code 426.30[.] As there is a previous action that has been adjudicated in the Probate court[.] By reason of the respondents [sic] failure to allege the related action by way of cross complaint respondent is barred under section CCP 426.30 of the code from asserting related cause of action therefore respondent action [sic] must be dismissed.” Griffin’s reliance on Code of Civil Procedure section 426.30 is misplaced, as there is no evidence in this record Griffin has filed a complaint against Bautista or that Bautista is asserting any claim against Griffin that must be included in a compulsory cross-complaint.
