1

Filed 3/7/23 Haffner v. Perez CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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

ROSEMARY HAFFNER, Plaintiff and Appellant,

v. FERNANDO PEREZ, JR., Individually and as Trustee, etc., Defendant a nd Respondent. A163564
(Contra Costa County Super. Ct. No. MSP18

- 00394 )

Rosemary Haffner seeks to appeal from a probate court order denying her motion under Code of Civil Procedure section 473, subdivision (b), to vacate a judgment

. Because t he challenged order is not appealable, we
dismiss th e appeal.

FACTUAL AND PROCEDURAL BACKGROUND In 2018, Haffner filed a petition in the probate court seeking, among other things , to determine the validity of certain amendments to a trust established by her deceased father. Trial was set for February 10, 2020

. 1 In January, the trial was continued to April 6 in response to a request by Haffner that was based on a declaration from her counsel, John Browne, concerning his medical condition

.

1 Subsequent dates are in 2020 unless otherwise stated

.2

The April trial date was continued as a result of court closure for COVID. I n July, trial was set for Octobe r 28. On October 1 4 , Haffner filed an ex parte application for continuanc e on the ground that Browne was unavailable because of illness and needed time to obtain replacement counsel. The probate court denied the application. On October 27, the day b efore trial, respondent’s counsel executed a declaration stating that he had not received Haffner’s exhibit list, exhibits, witness list or trial brief as required by the probate court’s pretrial order and
that Browne had “rebuffed [his] efforts to meet an d confer” regarding stipulations of fact

. When t he case was called for trial on the afternoon of October 28 ,

n either Haffner nor Browne was present. The probate court granted respondent’s request to dismiss the petition without prejudice for failure of petitioner to appear, as authorized by subdivision (b) of section 581 of the Code of Civil Procedure

. 2 A written order was entered in November dismissing Haffner’s petition without prejudice and imposing the monetary sanctions on Haffner and B rowne

. N o appeal was taken. In February 2021, Haffner moved to vacate the dismissal under section 473, subdivision (b), on the grounds of excusable neglect or, in the alternative, attorney fault. The motion was supported by a n eight

- page declaration from Browne. The probate court denied the motion, and Haffner filed a not ice of appeal in September.

2 All statutory references are to the Code of Civil Procedure unless otherwise stated.3 DISCUSSION Appeals in probate matters are limited to the orders and judgments specified in the Probate Code , and the Probate Code does not specify statutory motions to vacate as appealable . (Prob. Code, §§ 1300, 1304; Kalen ian v. Insen (2014) 225 Cal.App.4th 569, 575

- 576 ( Kalenian ) .) Our Supreme Court explained , referring to former section 1240 of the Probate Code, “[ T]he Probate Code specifies the orders and judgment in probate from which an appeal will lie, and an order d enying relief under section 473

. . . is not one of the orders so specified.” ( In re Estate of O’Dea (1940) 15 Cal.2d 637, 638 ( O’Dea ) ; see In re Conservatorship of Harvey (1970) 3 Cal.3d 646,
652 [citing O’Dea in support of holding that order denying motion to vacate is not appealable in probate matter].)
In In re Estate of Baker (1915) 170 Cal. 578 ( Baker ) , o ur Supreme Court recognized a narrow exception to th e general rule that appeals in probate

matters ar e limited to those orders and judgments specified in the Probate
Code

. Under the Baker exception, an order denying a motion to vacate an appealable judgment or order is itself appealable “when, for reasons involving no fault of the appealing party, he has never been given an opportunity to appeal directly from the judgment or decree” he seeks to vacate. ( Id. at p. 582.) Haffner argues that the exception applies to her case, but we are not persuaded

. In Baker , the decedent’s sister filed a contest of th e will, and died before the trial. ( Baker , supra , 170 Cal. at p. 581.) Before a personal representative was appointed for the contestant, the probate court granted a motion brought by the executor of the will to dismiss the contest . ( Ibid. )
About two m onths later, an administrator was appointed for the contestant’s estate, and sought to vacate the dismissal. ( Ibid. ) The probate court denied4

the motion and the administrator appealed. ( Ibid. ) The Supreme Court held that the order denying the motion to vacate was appealable because the underlying order was appealable and at the time it was made “no person in existence could appeal from it” because the contestant was dead, the authority of her attorneys had ceased with her death, and no personal

represen tative had been appointed for her. ( Id. at p p. 583

- 584.) The crucial fact about Baker and the decisions following it “ is that an appealable judgment [has been] entered ex parte with no notice to the appealing part y

. And such an order issued without notice to the appealing party necessitates the filing of a motion to set aside the judgment which is deemed appealable.” ( Kalenian , supra , 225 Cal.App.4th at p. 578 .) Thus, our Supreme Court held in O’Dea that the Baker exception did not apply when the parties seeking to appeal the denial of a motion to vacate brought under
section 473 had appeared at the trial where the probate court made an order of dismissal and nonsuit against them. ( O’Dea , supra , 15 Cal.2d at pp. 6 38,
639

- 640.) In O’Dea the Supreme Court explained that “ [ t ] he peculiar and unusual situation arising out of the facts in [ Baker ] does not lay down any general exception” to the rule that appeals in probate matters a re limited to the orders and judgments specified in the Probate Code; to the contrary
Baker “should be construed with relation to the facts of that case, and confined to cases of similar import.” ( Id. at p. 639.) The facts in O’Dea had “no similarity to those in” Baker , and therefore Baker wa s not controlling. ( Id. at pp. 639

- 634.)
As was the case in O’Dea , the facts here are unlike those in Baker

. Although Haffner did not appear at the October 28 trial, her situation is different from the appellant in Baker because Haffner was a party to the proceeding when the probate court issued its dismissal, had notice of the trial5

date, and received notice of the dismissal order that she sought to set aside , as reflected in her payment of sanctions imposed on her and her filing a
motion to tax costs

. In these circumstances, t he Baker exception does not apply, and accordingly the order denying Haffner’s motion to vacate is not appealable. Haffner makes a conclusory argument that the facts of her case are
similar to Baker because attorney Browne was somehow “disabled from appropriately responding to ” the dismissal by filing an appeal, just as the contestant’s attorneys were unable to file an appeal from the dismissal in
Baker . The argument is meritless. In Baker , the contestant’s attorneys could not appeal because they had no client , and therefore no authority to appeal

. ( Baker , supra , 170 Cal. at p. 584.) That is not the situation here. Further, Browne’s disability demonstrably did not prevent him from r esponding appropriately to the dismissal insofar as he paid the sanctions imposed against him and filed a motion to tax costs. Haffner argues that we s hould treat her appeal as a writ petition if we conclude that the order she challenges is not appealable

. Respondent opposes treating the appeal as a writ, and asks us to dismiss the appeal. We have the discretion to treat a purported appeal as a petitio n for writ of mandate where the record and briefs include the elements necessary for a writ proceeding and where the trial court would be only a nominal party, but we do so only in “unusual circumstances.” ( Olson v. Cory (1983) 35 Cal.3d 390, 401.) We
de cline to treat this appeal as a writ petition because there are no such
circumstances her e, particularly in view of the fact that Haffner has filed a separate writ petition seeking review of the same order that is the subject of her appeal. ( Haffner v. Su perior Court , Case No. A164341.) The writ petition will be addressed separately.6 DISPOSITION The appeal is dismissed. The parties shall bear their own costs on appeal

.7 _________________________ Miller, J.

WE CONCUR:

_________________________ Richman, Acting P.J.

_________________________ Markman, J. *

A163564, Haffner v. Perez

* Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Con stitution.