Filed 9/1/20 Huntington v. Miller CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

SUSANNE HUNTINGTON,

Plaintiff and Appellant,

v.

PENELOPE MILLER,

Defendant and Respondent,

LAWRENCE C. BEAVER,

Third Party Claimant and Respondent.

F079553

(Super. Ct. No. 2200202)

OPINION

APPEAL from an order of the Superior Court of Stanislaus County. Stacy P. Speiller, Judge.

Law Offices of Michael Dietrick and Michael E. Dietrick for Plaintiff and Appellant.

Law Office of Graham Scott and Graham Scott for Defendant and Respondent.

No appearance for Third Party Claimant and Respondent.

-ooOoo-

After more than three years of trust litigation between appellant Susanne Huntington and respondent Penelope Miller, who are sisters, over their deceased mother’s trust, the two attended a mediation on February 28, 2018 and signed a settlement agreement that day. Almost a year later, Huntington filed a pleading in pro per entitled “Petitioner’s Objection to Mediation Settlement Agreement and Request for Orders” which sought to set aside the settlement agreement on the ground of undue influence. Huntington filed over 200 pages of documents in support of the objection, but the objection and supporting memorandum were devoid of any citations to evidence or legal authority.

After granting multiple continuances to afford Huntington the opportunity to seek legal counsel and to provide legal authority to support her objection, at a hearing on May 8, 2019, the trial court denied the objection on the ground it was unsupported by legal authority. The trial court filed a minute order that day reflecting the denial of the objection. Huntington appeals from that order, contending the trial court abused its discretion in denying her request for another continuance.

We conclude the order appealed from is not appealable, and we dismiss the appeal on that ground.

FACTUAL BACKGROUND

Huntington and Miller are sisters and the beneficiaries of their deceased mother’s trust. Miller was the trusts’s successor trustee. On December 12, 2014, Huntington filed a “Petition for Removal of Personal Representative.” On August 26, 2015, Huntington filed her “First Amended Petition to Remove Successor Trustee and Require Pre-Death Accounting; and Related Claims of Elder Abuse.” The amended petition did not specify the Probate Code section under which the petition was being brought.

On February 28, 2018, Huntington and Miller attended a mediation with their attorneys and a mediator. The mediation resulted in a written settlement agreement of all of the pending claims in the case Huntington filed. The settlement agreement was signed that day by Huntington, Miller, their respective attorneys, and the mediator.

On February 25, 2019, Huntington filed in pro per a pleading entitled, “Petitioner’s Objection to Mediation Settlement Agreement and Request for Orders” (the “objection”). The objection sought an order rescinding the settlement agreement. Huntington contended that she had “nothing to do with” the settlement agreement and that her attorneys threatened to withdraw from representing her if she did not sign the agreement. She also claimed that her attorneys knew she was suffering from “recent loss of vision” and did not advise her to read the agreement, nor did her attorneys read the agreement to her prior to signing. The objection was accompanied by a supporting memorandum of points and authorities and over 200 pages of supporting documents. However, neither the objection nor the supporting memorandum contained any citations to evidence or legal authority. It also was not specified under which section of the Probate Code the objection had been brought.

A hearing was held on October 18, 2018, at which the trial court granted Huntington’s attorneys’ motion to be relieved as counsel. Also at that hearing, Huntington requested time to retain new counsel in order to proceed with her claim of undue influence, and the court granted a continuance to December 13, 2018. At the December 13, 2018, hearing, Huntington appeared with an attorney who “specially appear[ed] with … Huntington in a limited scope only.” The minute order of that hearing stated “the objection [was] to be filed before the next hearing or the case [would] be dismissed.”

On February 25, 2019, which was the day before the next continued hearing, Huntington filed her objection to the settlement agreement. On February 26, 2019, Miller, acting as trustee, filed a pleading entitled “Distribution receipts from settlement agreement order on 03/16/2018 and 01/29/2019,” detailing her final account of how the trust funds had been distributed. According to Huntington, she appeared in pro per at the February 26, 2019, hearing and requested time to retain counsel, and the trial court “continued both the matters” to May 8, 2019. The record contains no minute order for the February 26, 2019, hearing.

On May 8, 2019, Huntington still had not retained counsel and had not amended her objection, but requested yet another continuance so she could have a chance to do so. The trial court denied her request for a continuance and entered a written order that day. The order reads at the top in all capital letters: “Nature of Hearing: Status Review Hearing on Petitioner’s Objection to Mediation Settlement Agreement.” The substantive portion of the order reads in full:

“The case was regularly called for hearing.

The Petitioner requested a continuance stating that she has been trying to obtain Counsel. The request was denied.

The Court reminded Ms. Huntington that this matter had been continued multiple times at her request in order to allow her to obtain Counsel and provide legal authority on her Objection to the Settlement Agreement.

Ms. Huntington previously filed an Objection but failed to file any legal authority regarding her Objection.

Upon conclusion of the hearing, the Court finds that the Settlement Agreement stands and that no further orders at this time shall be made.

Ms. Huntington may file any pleadings that she feels appropriate.”

Huntington filed a notice of appeal from this order on June 26, 2019. The appellate record does not contain any other orders filed after May 8, 2019.

DISCUSSION

Both parties’ briefing addresses only the merits of Huntington’s claim that the trial court abused its discretion in failing to grant Huntington another continuance on May 8, 2019. We requested supplemental briefing on the issue of whether the May 8, 2019, order is appealable, and appellant submitted a brief. We conclude the order is not appealable and dismiss the appeal.

“The existence of an appealable judgment or order is a jurisdictional prerequisite to an appeal. [Citation.] The right to appeal is ‘wholly statutory.’ [Citation.] A trial court’s order is appealable only when a statute permits the appeal.” (Finance Holding Co. LLC v. The American Institute of Certified Tax Coaches, Inc. (2018) 29 Cal.App.5th 663, 673.)

Appeals which may be taken from orders in probate proceedings are set forth in the Probate Code, and its provisions are exclusive. (In re Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1125–1126.) “ ‘There is no right to appeal from any orders in probate except those specified in the Probate Code.’ ” (Id. at p. 1126.) Probate Code section 1304 governs the appealability of orders concerning trusts. Subdivision (a) of section 1304 provides an appeal may be taken from the grant or denial of any final order under section 17200 et seq. (proceedings concerning trusts), with exceptions not applicable here.

Huntington’s statement of appealability in her opening brief contends: “The Trial Court’s Order entered May 8, 2019 approving the final distribution and settlement of the estate and denying the objection to the same filed by Susanne Huntington (Clerk’s Transcript, vol. 3, p. 645) is appealable pursuant to Code of Civil Procedure § 904.1(a)(10) and Probate Code § 1304(a).” She further states the May 8, 2019, order is appealable under the Probate Code “as a final order granting or denying any proceeding regarding a trust pursuant to Probate Code § 17200, such as proceedings settling the accounts and passing upon the acts of the trustee, including the exercise of discretionary powers, subject to limited specific exceptions that are not relevant in the present matter.”

It is clear from the language used in appellant’s statement of appealability in her opening brief that her objection to the settlement agreement was purportedly brought under Probate Code section 17200, subdivision (b)(5). That subdivision allows a beneficiary to petition the court for the purpose of “[s]ettling the accounts and passing upon the acts of the trustee, including the exercise of discretionary powers.” However, neither the order appealed from nor Huntington’s objection demonstrate that the objection was filed for the purpose of settling accounts and passing upon acts of the trustee. Nor does the order appealed from demonstrate any other matters were considered at the May 8, 2019, hearing besides the denial of Huntington’s objection to the settlement agreement.

Since an order granting or denying a petition for an order setting aside a settlement agreement is not one of the enumerated orders that can be appealed from (see § 1304, subd. (a) & § 17200, subd. (b)), and since Huntington has not otherwise demonstrated how the order appealed from is appealable, her appeal must be dismissed.

 

DISPOSITION

The appeal is dismissed. Respondent is awarded her costs on appeal.

SNAUFFER, J.

WE CONCUR:

MEEHAN, Acting P.J.

DE SANTOS, J.