Filed 8/30/23 Givan v. Givens CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

CLIFFORD GIVAN et al.,

Plaintiffs and Respondents,

v.

DERMOT GIVENS,

Defendant and Appellant.

A166382

(Alameda County

Super. Ct. No. 21CV001443)

Defendant Dermot Givens filed a notice of appeal from an order 

denying his motion to quash service of summons. After reviewing the briefs 

and the record submitted to this court, we have concluded there is no

appealable order on which to base the appeal and an insufficient record on 

which to predicate review by petition for writ of mandate. Accordingly, we 

will dismiss the appeal.

I. BACKGROUND

Plaintiffs filed a first amended complaint against defendant, in his 

individual capacity and as trustee of “The ‘Ruth’ Given/Ida Jackson 

Revocable Living Trust,” alleging two causes of action for quiet title and 

intentional misrepresentation. Plaintiffs claim Ida Jackson owned two 

parcels of real property, and upon Jackson’s death, each should have received 

one parcel. However, plaintiffs allege defendant filed a petition pursuant to 
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Probate Code section 172001 in Los Angeles County Superior Court, 

presenting the court with “an updated ‘Trust’ with a fraudulent notary page.” 

The petition was granted, but six months later, a motion to set aside void 

order was granted. Plaintiffs further allege defendant took out loans on the 

two parcels, in excess of $420,000. As a direct and proximate result of 

defendant’s unlawful acts, the complaint asserts, plaintiffs have been 

deprived of their ownership rights to their respective properties, their 

properties are no longer free of lien, and they have incurred costs and fees to 

bring this action. 

From what we have been able to piece together from the record, a proof 

of service of summons on defendant, as an individual, was filed on 

February 18, 2022. Thereafter, pursuant to an order filed on March 23, 2022, 

the trial court denied a motion for change of venue “filed by Dermot Givens 

on 01/05/2022.” Defendant, on June 1, 2022, filed a motion to quash service 

of complaint. The court denied the motion, concluding defendant made a 

general appearance when he “filed a motion to transfer venue on January 5, 

2022.” “Having previously submitted to the Court’s jurisdiction,” the court 

concluded defendant “waived his right to claim jurisdictional defenses.” 

II. ANALYSIS

Defendant contends the trial court erred in denying his motion to 

quash service of summons because in its order, the trial court found Dermot 

Givens, an individual defendant, had made a general appearance and 

submitted to the jurisdiction of the court by filing the motion to transfer 

venue. 

1 Probate Code section 17200 allows a trustee or beneficiary of a trust 

to “petition the court concerning the internal affairs of the trust or to 

determine the existence of the trust.” 
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This was error, according to defendant, as the court “never 

distinguished or identified whether Dermot Givens, Trustee or Dermot 

Givens, an individual filed the motion to transfer venue on 1/5/22.” Without 

citation to the record, defendant appears to argue he filed the motion for 

change of venue only in his capacity of trustee, indicating “[t]he upper left 

hand corner of the motion designated[] Dermot Givens, Trustee, as the party 

that was filing the motion.” In addition, he asserts (1) the motion does not 

mention nor seek any relief by him as an individual defendant; (2) the notice 

of motion was signed by “ ‘Dermot Givens Attorney for Givan/Jackson 

Trust,’ ” on behalf of the trustee; (3) the supporting declaration was 

submitted by Dermot Givens, attorney for the trustee, and did not mention 

an individual defendant; (4) the motion has one signature, that of Dermot 

Givens; (5) the motion was verified by “ ‘Dermot Givens’ ” without any further 

identification; (6) the “text identification on a signature line” identifying 

Dermot Givens does not prove Dermot Givens, an individual, filed the 

motion; and (7) only one filing fee was paid by “the filer of the motion to 

change venue.” Since he never filed the motion for change of venue in his 

individual capacity, defendant maintains, he never made a general 

appearance as an individual, and as a result, rather than denying the motion, 

the court should have held an evidentiary hearing on his motion to quash 

service of summons. 

“ ‘It is settled that the right of appeal is statutory and that a judgment 

or order is not appealable unless expressly made so by statute.’ ” (People v. 

Mazurette (2001) 24 Cal.4th 789, 792.) Further, “a reviewing court is 

‘without jurisdiction to consider an appeal from a nonappealable order, and 

has the duty to dismiss such an appeal upon its own motion.’ ” (In re 

Mario C. (2004) 124 Cal.App.4th 1303, 1307.)
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In their respondents’ brief, plaintiffs assert the denial of a motion to 

quash service of process is not appealable. We agree.

Code of Civil Procedure section 904.1, subdivision (a)(3) authorizes, in 

relevant part, appeals “[f]rom an order granting a motion to quash service of 

summons.” (Italics added.) To obtain review of an order denying a motion to 

quash service of summons, however, a defendant must file a petition for writ 

of mandate. (Code Civ. Proc., § 418.10, subd. (c).)

Defendant did not file a petition for writ of mandate and has not 

requested treatment of his appeal as such. We decline to treat defendant’s 

appeal as a petition for writ of mandate. 

In Olson v. Cory (1983) 35 Cal.3d 390, before engaging in its analysis of 

whether the necessary circumstances were present to exercise its power to 

treat the appeal at issue as a petition for writ of mandate, our Supreme Court 

explained that the records and briefs before it “include[d] in substance the 

elements necessary to a proceeding for writ of mandate.” (Id. at p. 401.) The 

court continued its discussion by explaining, “Though we thus have power to 

treat the purported appeal as a petition for writ of mandate, we should not 

exercise that power except under unusual circumstances.” (Ibid.) 

Here, unlike in Olson, the threshold requirement of an adequate record 

for a proceeding for writ of mandate is unmet. In particular, the record does 

not include all the documents “submitted to the trial court that are necessary 

for a complete understanding of the case and the ruling under review.” (Cal. 

Rules of Court, rule 8.486(b)(1)(C).) The record on appeal is notably devoid of 

defendant’s motion for change of venue and plaintiffs’ opposition thereto.

Moreover, the argument portion of defendant’s brief contains no record 

citations to these documents. These omissions are significant to our review 

because the trial court determined defendant made a general appearance 

when he filed his motion for change of venue. Although defendant maintains
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he filed the motion in his capacity as trustee and not in his individual 

capacity, the record is insufficient to evaluate defendant’s claim that he did 

not make a general appearance, which would have required the court to rule 

on the substance of his motion to quash service of summons.

Accordingly, because the record is insufficient, we decline to treat this 

nonappealable order as a petition for writ of mandate.2 

III. DISPOSITION

The appeal is dismissed. The parties shall bear their own costs on 

appeal. 

2 We express no opinion regarding the timeliness of filing a petition for

writ of mandate. 
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MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BOWEN, J.*

A166382

Givan v. Givens

 Judge of the Contra Costa County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California Constitution.