Filed 1/24/20 Franco v. Padilla CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

MANUEL RICHARD FRANCO,

Plaintiff and Appellant,

v.

JOANN PADILLA et al.,

Defendants and Respondents.

E071502

(Super.Ct.No. PSP1300067)

OPINION

APPEAL from the Superior Court of Riverside County. Arjuna (Vic) Saraydarian (retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and James A. Cox, Judges. Dismissed

Manuel R. Franco, in pro. per., for Plaintiff and Appellant.

Bochnewich Law Offices, Peter M. Bochnewich and Jacquetta Bardacos for Defendant and Respondent Joann Padilla.

Donald McKay for Defendant and Respondent Norma Medina.

Plaintiff and appellant Manuel Franco as an individual and former trustee files this appeal in regards to the Estate of Richard and Mercy Franco Family Trust dated June 23, 1995 (the Trust); specifically, he appeals the denial of his motion to amend final order of distribution; to dismiss settlement agreement; to dismiss petition PSP1200067; statute of limitations has run (the Motion).

On June 3, 2014, defendant and respondent JoAnn Padilla filed a petition to compel accounting and to remove Franco as trustee (the Petition). On September 14, 2015, Franco was removed as the trustee of the Trust and his sister, defendant and respondent Norma Medina was appointed to take his place. On April 28, 2016, the beneficiaries of the Trust, which included Padilla and Medina, entered into a stipulated settlement with Franco regarding the disbursement of the Trust. On September 8, 2017, Padilla filed a motion to enforce the terms of the stipulated settlement as Franco had failed to comply. On October 25, 2017, the trial court entered an order enforcing the settlement agreement. On December 20, 2017, attorney’s fees and costs were awarded to Padilla. Almost one year later, on August 29, 2018, Franco filed the Motion essentially arguing that the settlement agreement and order enforcing the settlement agreement were invalid, that Padilla’s attorney had a conflict of interest, and that attorney’s fees were improperly imposed against him in favor of Padilla. The Motion was denied on October 3, 2018, after which Franco filed the instant appeal.

Franco raises the following “issues” on appeal: (1) the trial court abused its discretion by allowing Padilla to continue through litigation because she failed to join indispensable parties in the Petition; (2) the trial court abused its discretion by allowing the matter to continue through litigation as the statute of limitations had run; (3) the trial court erred by allowing the case to continue through litigation due to a conflict of interest of Padilla’s attorney; (4) the trial court abused its discretion by allowing the stipulated settlement to be entered as an order; and (5) the trial court erred by awarding Padilla attorney’s fees. We dismiss the appeal on the ground that Franco has failed to meet his burden of establishing an appealable order or judgment.

FACTUAL AND PROCEDURAL HISTORY

On June 23, 1995, Mercy Eva Franco and Richard Ramirez Franco signed the Trust. It named Padilla, Franco and Diana Clara Franco-Sandoval as cotrustees. It named Medina, Eva Patsy Franco-Zapp, Padilla, Franco, Sandoval and Linda Veronica Franco-Rivas as beneficiaries; they would each share 16.67 percent. Mercy died on September 4, 2005, and Richard died on December 4, 2010. On August 30, 2006, before Richard’s death, the Trust had been amended naming Franco the sole trustee.

Franco provided no accounting upon taking over as trustee, and on January 1, 2013, Padilla filed a request for an order requiring Franco to appear in court and produce the Trust estate documents. On July 11, 2013, Franco was ordered to provide the documents. Franco apparently failed to provide an accounting as Padilla filed the Petition on June 3, 2014. She sought an order requiring Franco to provide an accounting of the Trust pursuant to Probate Code section 17200; removal of Franco as trustee as he was not properly managing the Trust; and attorney’s fees and costs.

On September 14, 2015, Franco was removed as trustee and Medina was appointed trustee. Trial on the Petition commenced in April 2016. During the trial, on April 28, 2016, the parties entered into a stipulated settlement. Franco was present, with counsel. The terms included that Franco would return all properties to the Trust; Franco agreed to pay all reasonable attorney’s fees incurred by the beneficiaries out of his proceeds; the main property in the Trust, the “Ranch,” would be sold; and it outlined the split of the assets among the beneficiaries. The parties were advised that a motion was all that was needed to enforce the settlement.

On September 8, 2017, Medina filed a motion to enforce the settlement agreement. She alleged that Franco was not complying with the terms of the settlement. He refused to cooperate with the sale of the Ranch. He further had recorded documents claiming ownership of all of the Trust properties. Franco had also filed documents purporting to be the trustee of the Trust. Medina was forced to file an unlawful detainer action against Franco to have him removed from the Ranch in order to sell the property. Medina was advised to pursue the issue in the probate court. She sought an order enforcing the settlement agreement. Medina served Franco with notice of the hearing date on the motion to enforce the settlement agreement on September 12, 2017. On October 4, 2017, Padilla submitted a request for approval of attorney’s fees in the amount of $78,349.96.

A hearing was conducted on October 18, 2017. Franco was not present. After the hearing, on October 25, 2017, the trial court entered its order enforcing the settlement agreement. The trial court ordered that Medina was confirmed as the trustee of the Trust; all actions taken by Franco in violation of the settlement agreement were null and void; and Medina was authorized to continue the unlawful detainer action against Franco. On December 20, 2017, the trial court affirmed the attorney’s fees award of $78,349.96.

On August 29, 2018, 10 months after the order entered by the trial court enforcing the settlement, Franco filed the Motion. He referenced the October 18, 2017, hearing on the motion to enforce the settlement agreement and the order entered on October 25, 2017, enforcing the agreement. He insisted that the Petition should not have proceeded to litigation; Medina should not have been appointed as trustee; Padilla’s attorney had a conflict of interest; and Franco argued the merits of the settlement. Franco sought dismissal of the unlawful detainer action; that the settlement agreement and order enforcing the settlement agreement be deemed null and void; all the property in the Trust be returned to him; that the attorney’s fees awarded to Padilla be reversed; and that he be awarded attorney’s fees.

Medina objected to the Motion. Medina argued that it was a frivolous motion, which raised previously rejected arguments. On October 3, 2018, the trial court entered an order denying the Motion. On October 15, 2018, Franco filed a notice of appeal from the judgment or order entered on “10/3/2018 in lieu of 10/18/2017, 10/24/2017, 12/20/2017.”

On December 27, 2018, we issued an order dismissing any appeal of the orders entered on October 18, October 24 and December 20, 2017. Franco was to provide a copy of the October 3, 2018, order so that this court could determine if it was an appealable order or judgment. Franco complied on January 10, 2019, attaching an order dated October 3, 2018, denying the Motion.

DISCUSSION

“An appealable judgment or order is essential to appellate jurisdiction.” (Winter v. Rice (1986) 176 Cal.App.3d 679, 681.) The burden is on the appellant to provide an appealable judgment or order. (Jordan v. Malone (1992) 5 Cal.App.4th 18, 21.)

Franco filed the Motion on August 29, 2018. The Motion referred to three Probate Code sections: First, it referenced Probate Code section 16063, which relates to the contents of an accounting by a trustee. Second, Franco referenced Probate Code section 16461, subdivision (a), which sets a timeline and process for objecting to the accounting by the trustee. Finally, Franco referred to Probate Code section 17200, which provides that a trustee or beneficiary can petition the court as to the internal affairs or the existence of a trust. Franco’s arguments in the Motion centered around his claim that all of the property from the Trust properly belonged to him; he objected to the attorney’s fees imposed against him; he opposed the appointment of Medina as the trustee; the statute of limitations had run on the request for accounting prior to Padilla filing the Petition and it should have been dismissed; and Franco insisted Medina improperly sold the Ranch. In his prayer for relief, he requested that the settlement agreement dated April 28, 2016, and the order to enforce the settlement agreement dated October 25, 2017, be declared null and void. He further requested an order that he be returned all of the properties in the Trust, and the petition for attorney’s fees and costs be denied.

In short, Franco raised issues that were clearly part of the settlement agreement and the order enforcing the settlement agreement. On October 18, 2017, the hearing on the order enforcing the settlement agreement was held and Franco was advised of the hearing. The order enforcing the settlement agreement was signed on October 24, 2017, and was filed on October 25, 2017. The award of attorney’s fees was made on December 20, 2017. However, as stated, on December 27, 2018, we issued an order dismissing any appeal of the orders entered on October 18, October 24 and December 20, 2017.

It is not entirely clear under what authority Franco filed the Motion, and as a result, it is impossible to determine if the denial of the Motion on October 3, 2018, is appealable pursuant to Code of Civil Procedure section 904.1 or the Probate Code.

“[A]ppellate jurisdiction is conferred by statute under California law.” (Samuel v. Stevedoring Services (1994) 24 Cal.App.4th 414, 417.) Franco cites to Code of Civil Procedure section 902 to support that he is an aggrieved party and can appeal. Medina and Padilla contend that the time to appeal the issues raised in the Motion passed and should not be considered by this court.

The primary statute addressing the appealability of judgments and orders in civil cases is Code of Civil Procedure section 904.1. (Samuel v. Stevedoring Services, supra, 24 Cal.App.4th at p. 417.) Code of Civil Procedure section 904.1 serves to avoid piecemeal litigation by limiting appeals to final judgments, postjudgment orders, and certain enumerated orders. (Griset v. Fair Political Practices Com’n (2001) 25 Cal.4th 688, 696-697.)

Code of Civil Procedure section 904.1, subdivision (10) allows for an appeal, “From an order made appealable by the Probate Code or the Family Code.” “ ‘ “[A]ppeals [that] may be taken from orders in probate proceedings are set forth in . . . the Probate Code, and its provisions are exclusive.” [Citation.] “There is no right to appeal from any orders in probate except those specified in the Probate Code.” [Citation.] “Appeals in general probate . . . matters are limited.” [Citation.] “If there [were] a free appeal in every probate matter, estates could be unreasonably delayed.” ’ ” (Estate of Miramontes-Najera (2004) 118 Cal.App.4th 750, 754.) Probate Code section 1304 addresses appealable orders for trusts and does not include the denial of a postjudgment motion or a motion to dismiss.

Nowhere in the Code of Civil Procedure or Probate Code is there a right to appeal the denial of a motion like that filed by Franco. Franco has made no effort to establish the nature of the Motion or address its appealability. Even though both Padilla and Medina in their respondent’s briefs stated that this court already determined that the time to appeal has passed, in his appellant’s reply brief Franco claims this court had not issued such order and he could raise his issues on appeal. Franco fails to alert this court to any statutory authority in either the Code of Civil Procedure or Probate Code, which provides for an appeal from the denial of the Motion filed.

Even if we were to consider the Motion a motion for reconsideration, orders denying motions for reconsideration are not appealable. Code of Civil Procedure section 1008, subdivision (g) provides, “An order denying a motion for reconsideration made pursuant to subdivision (a) is not separately appealable. However, if the order that was the subject of a motion for reconsideration is appealable, the denial of the Motion for reconsideration is reviewable as part of an appeal from that order.” In other words, “denial of [a] motion for reconsideration [is] not appealable but [is] reviewable on [a] timely appeal of the underlying order.” (Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 871.) In addition, the Probate Code does not provide for an appeal of a motion for reconsideration. Allowing “an appeal from an order denying a motion for reconsideration would be contrary to the Probate Code’s purpose to foster the expeditious resolution of estate matters.” (See Estate of Stoddard (2004) 115 Cal.App.4th 1118, 1126.)

As ordered on December 27, 2018, we dismissed the appeal of the orders entered on October 18, 2017 (hearing on the motion to enforce settlement agreement), October 24, 2017 (order enforcing settlement agreement), and December 20, 2017 (award of attorney’s fees and costs to Padilla). Franco directly ignores this court’s December 27, 2018, order. As Franco admits in his appellant’s reply brief, the current appeal is based on the validity of the settlement agreement and errors made by the trial court in awarding attorney fees; failing to dismiss the Petition; and the errors in failing to find a conflict of interest, and enforcing the settlement agreement. No appeal can be taken in regard to these issues as we ordered that Franco not raise those issues in his appeal. Accordingly, we cannot review the same issues raised in a motion for reconsideration.

Additionally, even if we were to consider the Motion as a motion to vacate the orders of the trial court pursuant to Code of Civil Procedure section 473, this also would not be an appealable order. The denial of a motion to vacate is not an appealable order under the Probate Code. (In re O’Dea’s Estate (1940) 15 Cal.2d 637, 638.)

Franco has provided no statutory authority to support that he can appeal the denial of the Motion, and it is his burden on appeal to set forth authority for his appeal. As such, since Franco has not provided an order or judgment that is appealable, we dismiss the appeal.

DISPOSITION

We dismiss the appeal. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

FIELDS

J.

MENETREZ

J.