1

Filed 12/ 1/ 23 J.K. v. Hernandez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

J.K.

, Plaintiff and Respondent

,

v.

Cynthia Sue Hernandez

, Defendant and Appellant

. A 166385

( Sonoma County Super. Ct. No. SCV

- 270507 )

Cynthia Sue Hernandez purports to appeal from three order s : (1)
May 6, 2022 order granting a restraining order against her under the Elder
Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600,

et seq. 1 ); (2) May 9 , 2022 order amending the May 6 order; and (3)
September 30

, 2 022 order continuing a hearing on her motion “to set aside
default and default judgment, if entered,” and “to quash service of summons ”
(set aside motion).
We dismiss the appeal for lack of jurisdiction. 2

1 Undesignated statutory references are to the Welfare and Institutions Code. “Rule” references are to the California Rules of Court

. 2 W e deny Hernandez’s request for judicial notice of other litigation between the parties as irrelevant

. ( Coastside Fishin g Club v. California Fishing & Game Commission (2013) 215 Cal.App.4th 397, 429.)2 B ACKGROUND

All dates are in 2022.

On April 4, J.K. filed a form petition for a n elder abuse restraining
order against Hernandez under section 1 5657.0 3

. 3 The court issued a
temporary restraining order (TRO) and notice d a hearing for May 6. J.K.

filed a proof of service

, indicating Hernandez had been personally served on April 25 with various documents, including the petition

, TRO, and notice of
hearing (petition papers)

. On May 6, the trial court held a h earing at which Hernandez did not

appear. The court considered the testimony of several witnesses

, including
the person who serv ed Hernandez with the petition papers. The court found

Hernandez had been personally served with the petition papers and it issued

a five

- year restraining order. On May 9, the co urt filed an “Amended” order
adding a condition requiring Hernandez to attend an anger management

course ; no other changes were made

. That same day, the superior court
deputy clerk mailed the parties both filed

- endorsed copies of the May 6 and
May 9 orders (collectively, May orders) and proofs of service

. On July 27, Hernandez filed a motion to vacate the May orders for lack
of personal service of the petition papers

. The hearing on the motion was

continu ed from September 2 to October 5

. On September 30, the court
granted J.K.’s ex parte request for a new date and the hearing was continued

from October 5 to October 26 (September order).

3 Effective January 1, 2022, the Legislature amended, repealed, and reenacted se ction 15657.03 , to be operative on January 1, 2023. (Stats. 2021, ch. 273, § § 2, 3

. ). The su bdivisions of section 15657.03 that are currently in effect and cited in this opinion are identical to those in effect when the orders were made in this case

.3

On October 10, Hernandez filed a notice of appeal seeking review of the
May orders and the September order.

D ISCUSSION
A reviewing court has jurisdiction over the direct appeal of an order if
the order is appealable and the appeal is timely. ( Reyes v. Kruger (2020) 55
Cal.App.5th 58, 67

– 68.) Here, there was no timely appeal of the May orders
and the September order was not an appealable order. Therefore , we have no
jurisdiction and must dismiss this appeal . ( Ibid .)

I. No Timely Appeal of the May Orders

T he appeal of an elder abuse restraining order is statutorily

authorized

. (Code Civ. Proc., § 904.1, subd. (a)(6); see Darrin v. Miller (2019)
32 Cal.App.5th 450, 454

. ) However, Hernandez failed to file a timely notice
of appeal with respect to the May or ders. ( Silverbrand v. Count y of Los
Angeles (2009) 46 Cal.4th 106, 113 .)

Given the absence of a specific statute governing the jurisdictional time
limits for appeals of elder abuse restraining orders, we apply t he general rule
that a party must file a notice of appeal within 60 days after service by the
superior court clerk of a filed

- endorsed copy of the order at issue along with
proof of the date of service. ( Rule 8.104(a)(1)(A), (b) [reviewing court must
dismiss appeal where notice of appeal is not filed within 60 days, with
exceptions not here applicable ] ; s ee In re Marriage of Lin (2014) 225

Ca l.App.4th 471, 473, 475

– 476 [general jurisdictional time limits apply to
appeals of domestic violence restraining orders].)
The deputy clerk’s proof of service by mail of the May orders had a May
9 date of service. (Code Civ. Proc., § 1013a, subd. (4) [proof of mail service by
court clerk].) Hence, Hernandez had 60 days

, until July 8

, to file a notice of
appeal.4

Th e July 8 deadline to file a notice of appeal was not extended by

Hernandez’s motion to vacate the May orders because the motion to vacate
was filed after July 8. (Rule 8.108(c); see In re Marriage of Eben

- King & King
(2000) 80 Cal.App.4th 92, 108 [60

- day limit for the filing of appeal may be

extende d, if within that time period , an appellant files and serves a motion to
vacate] .)
The July 8 deadline was also not extended by any lack of personal
service of the May orders. Section 15657.03 describes alternative methods of

service or notice followin g the issuance of an elder abuse restraining orde r made after a hearing for the purpose of the “enforcement of the order.” ( I d.

, subd. ( o ) (1); see Id

., subd. ( o )(2)

. ) But the statute does not require the ord er be personally served on the restrained person to trigger the duty to file a
notice of appeal within the jurisdictional time limits in rule 8.104. B ecause the deputy clerk ’s mail ing of the May orders met the requirements of

rule 8.104, th e 60

- day filing li mit applies

. Therefore, Hernandez’s untimely October 10 notice of appeal

– filed
long after the 60

- day deadline of July 8

– leaves us without jurisdiction to
review the May orders

. II. September Order is not an Appealable Order

An appeal of an order continuing a hearing (such as the September
order) is not authorized by either Code of Civil Procedure section 904.1 or any

other statute . ( Century 21 Chamberlain & Assoc iates v. Haberman (2009)
173 Cal.App.4th 1, 11.)

Hernandez ’s argument tha t the September order was a refusal of the

court to hear her set aside motion is unavailing

. By its express terms, the
order did nothing more than continue the hearing on the motion to a new
date; the court did not decide or purport to decide the motion. ( Dana Point5

Safe Harbor Collective v . Superior Court (2010) 51 Cal.4th 1, 5 [ the substan ce and effect of the trial court’s order determine whether it is final (appealable)
or interlocutory (nonappealable)].)

As the September order is not an appealable order, we have no
jurisdiction to review it. We decline to exercise our discretion to treat the
failed appeal as a writ petition. ( Williams v. Impax Laboratories, Inc. (2019)
41 Cal.App.5th 1060, 1070

– 1072.)

D ISPOSITION
The appeal is dismissed

. B ecause we are dismiss ing the appeal without
deciding the merits, Hernandez is not entitled to oral argument. ( Lewis v.
Superior Court (1999) 19 Cal.4th 1232, 1254; Moles v. Regents of University of
California (1982) 32 Cal.3d 867

, 871.) No costs are awarded because
respondent did not make an appearance

. (Rule 8.278(a)(5).)6 _________________________ Petrou, J.

WE CONCUR:

_________________________ Tucher, P.J.

_________________________ Fujisaki, J.

A 166385/ J.K. v. Hernandez