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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered 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.

 A166385

 (Sonoma County

 Super. Ct. No. SCV-270507)

Cynthia Sue Hernandez purports to appeal from three orders: (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, 2022 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 We deny Hernandez’s request for judicial notice of other litigation 

between the parties as irrelevant. (Coastside Fishing Club v. California 

Fishing & Game Commission (2013) 215 Cal.App.4th 397, 429.)
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BACKGROUND

All dates are in 2022.

On April 4, J.K. filed a form petition for an elder abuse restraining 

order against Hernandez under section 15657.03.

3 The court issued a 

temporary restraining order (TRO) and noticed 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 hearing at which Hernandez did not 

appear. The court considered the testimony of several witnesses, including 

the person who served 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 court 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 

continued 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 section 15657.03, to be operative on January 1, 2023. (Stats. 2021, 

ch. 273, §§ 2, 3.). The subdivisions 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.
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On October 10, Hernandez filed a notice of appeal seeking review of the 

May orders and the September order. 

DISCUSSION

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

The 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 orders. (Silverbrand v. County 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 the 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]; see In re Marriage of Lin (2014) 225 

Cal.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. 
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The 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 

extended, 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 following the issuance of an elder abuse restraining order 

made after a hearing for the purpose of the “enforcement of the order.” (Id., 

subd. (o)(1); see Id., subd. (o)(2).) But the statute does not require the order 

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. Because 

the deputy clerk’s mailing of the May orders met the requirements of 

rule 8.104, the 60-day filing limit 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 & Associates v. Haberman (2009) 

173 Cal.App.4th 1, 11.) 

Hernandez’s argument that 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 Point 
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Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 [the substance

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.)

DISPOSITION

The appeal is dismissed. Because we are dismissing 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).)
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_________________________

Petrou, J.

WE CONCUR:

_________________________

Tucher, P.J.

_________________________

Fujisaki, J.

A166385/J.K. v. Hernandez