Filed 12/24/18 Estate of Cardenas CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Stanford E. Reichert, Judge. Affirmed.

Law Office of Jeff Grotke, Jeff Grotke for Petitioner and Appellant.

Lawrence A. Widdis and Laura Widdis for Objector and Respondent.

This appeal arises from a family dispute over the administration of the estate of Ruth Evelyn Cardenas (decedent). Petitioner and appellant Bonnie Cardenas and objector and respondent Leana Weathersby are both daughters of the decedent. Each sought appointment as the personal representative of the estate. The estate’s only asset is a house (the property) located in Los Angeles County, in which Cardenas and her immediate family, including her minor daughter, Nikole Bustamante, reside. Weathersby contends that the decedent died intestate. Cardenas disagrees, contending the decedent executed a will leaving everything she owned to Cardenas and granting Bustamante a life estate in the property.

In this appeal, Cardenas challenges two orders by the San Bernardino Superior Court’s probate department (the probate court). The first, issued and entered on November 18, 2016, found that the decedent died intestate and appointed Weathersby to be administrator of the estate. The second, issued and entered on August 29, 2017, largely denied a motion by Cardenas “to stay proceedings, vacate judgment, recall writ, quash service, and consolidate cases” regarding an unlawful detainer action Weathersby, in her capacity as administrator of the estate, filed in Los Angeles County Superior Court seeking to evict the residents of the property. The probate court did, however, grant Cardenas a temporary stay of the unlawful detainer action.

For the reasons discussed below, Cardenas’s arguments challenging the November 18, 2016, order are untimely and not cognizable. Her appeal from the August 29, 2017, order is cognizable, but we affirm the order to the extent that it denied her motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The decedent died on March 12, 2014. On June 23, 2015, Weathersby filed a petition for probate in San Bernardino Superior Court, alleging that the decedent had died intestate and asking the probate court to appoint her to serve as the administrator of the estate.

Cardenas objected to Weathersby’s petition and, on October 16, 2015, filed a competing petition. Cardenas sought appointment as the personal representative of the decedent’s estate in the role of “Administrator With Will Annexed,” contending that the decedent had died testate and requesting that a will be admitted to probate. The alleged will is a short, typewritten statement, purportedly signed by the decedent and notarized on February 26, 2010: “I Ruth Cardenas am stating that [the property] should never be sold. Nikole M. Bustamante shall live in my home for the rest of her life. All of my financial benefits and everything I own shall go to Bonnie Cardenas who will be power of attorney for my health and my financial benefits.”

After a hearing on August 30, 2016, the probate court denied Weathersby’s petition without prejudice and granted Cardenas’s petition, issuing an “Order for Probate” finding that the decedent died testate and appointing Cardenas to be the personal representative of the estate. The Order for Probate states that the alleged will was admitted to probate by minute order on August 30, 2016. Cardenas’s appointment, however, was conditioned on her posting a bond of $330,000. The referenced minute order states that if Cardenas is not able to post the required bond, “the court will vacate the order appointing her as the administrator and will grant the petition by [Weathersby]” with the same bond. The minute order also notes that the will would be deemed admitted only “once bond is filed.”

Cardenas failed to file the required bond, even after obtaining an extension of time to do so. At a review hearing on October 11, 2016, the probate court vacated its August 30, 2016, order appointing Cardenas as personal representative of the estate, and ordered Weathersby appointed instead, with Weathersby’s counsel to prepare the written order and letters of administration. On November 18, 2016, the probate court issued a new “Order for Probate,” finding that the decedent died intestate, appointing Weathersby as administrator of the estate, and requiring the posting of a $330,000 bond.

On May 11, 2017, Cardenas sought ex parte relief in the probate court. Her moving papers do not appear in our record, but she has characterized her application as a “motion . . . to stay proceedings, vacate the judgment, recall the writ, and quash service in the plainly related Unlawful Detainer case entitled, LEANA WEATHERSBY V. BONNIE CARDENAS, pending a Motion to Consolidate the case with the related Probate Case filed in the San Bernardino Superior Court under Case Number PROPS 1500573 and for an order of injunctive relief staying or terminating any all proceedings in the related case pending the outcome of this action.” (Original boldface.) Cardenas has also represented that she sought to “clarify and set aside the void order purportedly made on November 18, 2016.” The probate court issued a “stay of the execution on the writ of possession,” and set the matter for further briefing by the parties and a hearing.

According to Cardenas’s supplemental briefing in the probate court, her motion was based on the following premises: (1) Cardenas was not properly served in the unlawful detainer action; (2) Weathersby knew Cardenas was represented by counsel in the probate matter, but did not serve Cardenas’s counsel with the unlawful detainer complaint; (3) “[Weathersby] does not have the right under the Will filed in the Probate case, to evict” the residents of the property; (4) the probate court “has jurisdiction of this matter”; and (5) “evicting [Cardenas and Bustamante] would be contrary to the findings of [the probate court], which ruled after trial that the undisputed intent of the testator is that [Cardenas and Bustamante] live in the home.”

On August 29, 2017, the trial court issued an order denying Cardenas’s motion in large part, but continuing the stay so that “[Cardenas] and her attorney can file an appeal if they desire to do so.” As relevant to the present appeal, the probate court “decline[d] to review the issues of notice with respect to the unlawful detainer case . . . and finds that if there were any defenses in that case, including venue, those issues should have been raised in the Los Angeles Superior Court.” The probate court further found “that the alleged life estate from the alleged will” that had been submitted by Cardenas was “merely precatory” and expressed “a wish or desire but does not create a legal obligation or affirmative duty.”

Cardenas filed a notice of appeal from the August 29, 2017, order on that date, giving rise to this appeal. In addition, on February 8, 2018, she filed a second notice of appeal, purporting to appeal from both the August 29, 2017, order and the November 18, 2016, order appointing Weathersby as personal representative of the estate. This court assigned the second notice of appeal a separate appeal number (case No. E069965). On March 5, 2018, we issued an order dismissing appeal No. E069965, finding Cardenas’s appeal from the November 18, 2016, order untimely, and her appeal from the August 29, 2017, order duplicative of this appeal.

II. DISCUSSION

In her briefing in this appeal, taken from the August 29, 2017, order denying her motion, Cardenas challenges that order and “the order preceding it on November 18, 2016,” appointing Weathersby as personal representative of the estate. Her claims of error with respect to the November 18, 2016, order are untimely and not cognizable. We further find that Cardenas has demonstrated no error regarding the probate court’s August 29, 2017, order denying her motion. On the contrary, the probate court erred only insofar as it granted Cardenas’s motion in part by issuing a temporary stay of the unlawful detainer action.

A. We Lack Jurisdiction to Consider Cardenas’s Challenge to the November 18, 2016, Order

Cardenas cannot challenge the probate court’s November 18, 2016, order granting Weathersby’s petition for probate in this appeal. Pursuant to Probate Code section 1303, the order was appealable. (Prob. Code, § 1303, subd. (a).) But Cardenas’s notice of appeal does not mention it, stating only that she appeals from the probate court’s August 29, 2017, order. We therefore have no jurisdiction to review the November 18, 2016, order. (Code Civ. Proc., § 906 [appellate court not authorized to review “any decision or order from which an appeal might have been taken,” but was not]; see Cal. Rules of Court, rule 8.100(a) [notice of appeal must identify order appealed from]; DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43 [a separately appealable order must be identified in the notice of appeal]; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46-47 [no jurisdiction to review appealable order not identified in notice of appeal].)

Even if we construed Cardenas’s notice of appeal broadly to include the November 18, 2016 order, the appeal from the order would be untimely. The outside time limit to file a notice of appeal is 180 days after the final appealable order or judgment is entered. (Cal. Rules of Court, rule 8.104(a)(1)(C), (e).) This time limit is jurisdictional: “We are powerless to extend the time to file a notice of appeal, or to hear untimely appeals.” (In re Marriage of Mosley (2010) 190 Cal.App.4th 1096, 1101.) The time cannot be restarted or extended by the entry of a subsequent judgment or appealable order, even one making the same ruling. (See Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 583.) An untimely appeal must be dismissed, either on respondent’s motion or the court’s own motion. (Cal. Rules of Court, rule 8.104(b); Estate of Hanley (1943) 23 Cal.2d 120, 122.)

Cardenas’s notice of appeal was filed on August 29, 2017, more than 180 days after the entry of the November 18, 2016, order. Her appeal of that order was therefore untimely, and we have no jurisdiction to hear it. (Cal. Rules of Court, rule 8.104(a)(1)(C), (e); In re Marriage of Mosley, supra, 190 Cal.App.4th at p. 1101.)

Cardenas asserts the November 18, 2016, order is void, and therefore may be collaterally attacked “at any time,” because an order “purporting to vacate or otherwise nullify a Will filed with the Court” is “void if no Will Contest has been filed.” The premise of this argument, however, is false. The alleged will Cardenas lodged with the probate court was never admitted to probate and filed. The November 18, 2016, order incorporates by reference an August 30, 2016, minute order, which states that the alleged will would be “admitted once bond is filed.” The minute order accurately reflects the trial court’s oral ruling that the alleged will would “be deemed admitted into evidence at the time that bond is submitted.” Cardenas never submitted the required bond, so the alleged will was never admitted to probate or filed, and Weathersby was appointed as the personal representative of the estate in place of Cardenas.

Cardenas points out that Weathersby was required under Code of Civil Procedure section 664.5 to serve her with a copy of November 18, 2016, order, and that she failed to do so. Nevertheless, “[i]t has been frequently held that notice of the entry of a judgment or order is not required in order to start the running of the time within which an appeal may be taken.” (Palomar Refining Co. v. Prentice (1941) 47 Cal.App.2d 572, 573.) The “sole consequence” of a party failing to serve a statutorily mandated notice of entry of judgment “is that a longer statutory period for filing the notice of appeal comes into play. In other words, rather than the 60-day period that would have run from notice of entry of the judgment, an appellant has 180 days from entry of judgment to file the notice of appeal.” (Kimball Avenue v. Franco (2008) 162 Cal.App.4th 1224, 1228 (Kimball Avenue).) “[N]oncompliance with the statutory notice requirements” after entry of judgment or an appealable order “does not render the judgment [or order] void.” (Ibid.)

Cardenas argues that Weathersby’s failure to give notice of entry of the November 18, 2016, order amounts to “extrinsic fraud” that “prevented” her from knowing of the order. We are not persuaded. Cardenas has not demonstrated justifiable reliance on an intentional or reckless misrepresentation by Weathersby or her counsel. (See Kimball Avenue, supra, 162 Cal.App.4th at p. 1229 [extrinsic fraud claim requires showing of, among other things, “‘intentional or reckless misrepresentation and justifiable reliance on the misrepresentation’”].)

Cardenas’s counsel was present at the hearing on October 11, 2016, where the probate court appointed Weathersby as personal representative of the estate and ordered her counsel to prepare the written order and letters of administration. Cardenas’s counsel therefore knew that the written order was forthcoming and knew or should have known that there would be an outside deadline of 180 days from entry of that order to appeal. (Cal. Rules of Court, rule 8.104(a)(1)(C), (e).) To the extent Cardenas and her counsel relied exclusively on the lack of notice of entry of the written order to determine whether the clock had begun to run on her time to file a notice of appeal, such reliance was not reasonable. (See Palomar Refining Co. v. Prentice, supra, 47 Cal.App.2d at p. 573 [court rejected claim of extrinsic fraud based on “deliberate concealment” of entry of order where appellant was not given notice of entry and “appellant was not deceived in any way, and was not relieved of the duty resting upon him to keep himself informed of the court’s action . . . .”].) And Cardenas has not contended that Weathersby or her counsel represented that such an order had not been entered or would not be entered. We conclude there may have been a “fatal . . . lapse in vigilance” (Kimball Avenue, supra, 162 Cal.App.4th at p. 1230) by Cardenas and her counsel, but there was no extrinsic fraud by Weathersby.

In short, the probate court’s November 18, 2016, order is not void, and we have no jurisdiction to hear Cardenas’s untimely challenges to it.

B. Cardenas Has Not Demonstrated the Denial of Her Motion Was Erroneous

Cardenas argues that the probate court’s August 29, 2017, order was erroneous in several respects. In her view, the alleged will was “admitted . . . without condition,” regardless of Weathersby’s appointment as administrator of the estate. She contends the will could only be contested in a will contest in the probate court pursuant to Probate Code section 8004, subdivision (b). She concludes both the unlawful detainer action, interfering with the decedent’s wishes as expressed in the alleged will, and the trial court’s comments regarding the alleged will in the August 29, 2017, order, are therefore “void,” and that her motion challenging the unlawful detainer action and seeking to “clarify and set aside the void order purportedly made on November 18, 2016” should have been granted.

Cardenas’s notice of appeal regarding the August 29, 2017, order was filed on that same date, so there is no timeliness issue and we have jurisdiction to consider her appeal. Nevertheless, her appeal suffers from a number of fatal defects, both procedural and substantive. We conclude the probate court did not err in denying Cardenas’s motion.

“The most fundamental rule of appellate review is that a judgment is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286.) “The appellant has the burden of furnishing an appellate court with a record sufficient to consider the issues on appeal. [Citation.] An appellate court’s review is limited to consideration of the matters contained in the appellate record.” (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.)

One manifestation of these principles is articulated in California Rules of Court, rule 8.830, which provides that “[i]f an appellant wants to raise any issue that requires consideration of the oral proceedings in the trial court, the record on appeal must include a record of these oral proceedings . . . .” (Cal. Rules of Court, rule 8.830(a)(2).) Another manifestation is that, when requesting review of a written motion, the moving papers, any opposition thereto, and the court’s ruling must all appear in the record. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [appellant challenged trial court’s order granting a motion to strike but failed to include copies of the motion and opposition].) In the absence of an adequate record to support the appellant’s claim of error, “we presume the judgment is correct.” (Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039.)

Our record includes the probate court’s written order denying Cardenas’s motion. It also includes Cardenas’s supplemental brief in support of the motion, which she submitted pursuant to the briefing schedule set by the probate court on May 11, 2017. Our record does not include Cardenas’s initial moving papers; any record of the several oral proceedings regarding her motion; Weathersby’s opposing brief; or Cardenas’s reply brief. Rather, each of these appear in our record only as entries on the register of actions. None of the documents filed in the unlawful detainer action, including the judgment, are included in our record. To the extent the record we have does not reveal adequate support for the probate court’s ruling, we must presume such support would be found in the missing documents or oral proceedings. (See City of Santa Maria v. Adam, supra, 211 Cal.App.4th at p. 286; Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 [“‘“[If] any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.”’”].)

Moreover, Cardenas’s arguments on appeal rest in large part on premises that the record, incomplete as it is, demonstrates to be false. As noted above, the alleged will was never admitted to probate or filed. Rather, the probate court ordered that the alleged will, which Cardenas had lodged as an attachment to her petition for probate, would be deemed admitted when she filed the required bond; she failed to file a bond, so the alleged will was never deemed admitted to probate or filed. And, as discussed above, the probate court’s November 18, 2016, order appointing Weathersby as administrator of the estate is not void, so the August 29, 2017, ruling is not an “order giving effect to a void judgment,” as Cardenas would have it.

Furthermore, Cardenas has presented no authority supporting the proposition that the probate court had jurisdiction to entertain her challenges to the judgment in the unlawful detainer action. To the contrary, as our Supreme Court has noted, “one superior court generally lacks jurisdiction to overturn, enjoin or declare void the order of another superior court.” (People v. Gonzalez (1996) 12 Cal.4th 804, 815; see also Cal. Const., art. VI, § 11; Ford v. Superior Court (1986) 188 Cal.App.3d 737, 742 [jurisdiction to review or revise decisions of the superior courts is vested by our Constitution in the Supreme Court and Court of Appeal].) The probate court therefore had no jurisdiction to consider Cardenas’s request to “stay proceedings, vacate the judgment, recall the writ, and quash service” in the unlawful detainer action. Cardenas’s motion was properly denied on that basis.[1]

Finally, we decline Cardenas’s invitation to weigh in on the validity or nature of the alleged will. The probate court’s November 18, 2016, order found that the decedent died intestate, and appointed Weathersby as the administrator of the estate. The Probate Code provides the appropriate procedure for a proponent of an alleged will to petition to have it admitted to probate after a determination of intestacy. (See Estate of Earley (2009) 173 Cal.App.4th 369, 375 [discussing Prob. Code, § 8226, subd. (c)].) To date, so far as our record reveals, Cardenas has not utilized that procedure.

III. DISPOSITION

The orders appealed from are affirmed. Weathersby is awarded costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

MILLER

Acting P. J.

CODRINGTON

J.