Filed 11/19/21 Nickelson v. Nickelson CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

MAURICE NICKELSON,

Plaintiff and Appellant,

v.

KARLA NICKELSON,

Defendant and Respondent.

 B302583

 (Los Angeles County

 Super. Ct. No. 

 19IWRO00885)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. William V. McTaggart, Judge Pro Tempore, and 

Patricia J. Titus, Judge. Affirmed with directions.

Maurice Nickelson, in pro. per., for Plaintiff and Appellant.

Karla Nickelson, in pro. per., for Defendant and 

Respondent.

_______________________
2

This case arises from the trial court’s dismissal of crossrequests for domestic violence restraining orders (DVRO) by two 

adult siblings—brother and sister—residing in their father’s 

home. The brother appeals the trial court’s dismissal of his 

request for a DVRO and contends that the court also erred in not 

ruling on his restitution claim against his sister for property 

damage. We conclude that the trial court failed to determine 

appellant’s property claim but otherwise affirm the judgment 

with directions.

FACTUAL AND PROCEDURAL HISTORY

I. The Parties

Appellant Maurice Nickelson (43) and respondent Karla

Nickelson (49) live together in Los Angeles with their 76-year-old 

father, Melvin Nickelson (the homeowner), their brother Marc 

Nickelson, and Karla’s three adult children. As adults, Maurice 

and Karla have lived in their father’s house together for around 

10 years.

II. Maurice’s Domestic Violence Restraining Order 

Request and Temporary Restraining Order 

Against Karla

On July 22, 2019, Maurice filed a request for a DVRO

against Karla, in propria persona. He sought move-out, stayaway, and antiharassment orders, permission to record 

communication made to him by Karla in violation of the court’s 

orders, and orders that Karla attend a 52-week batterer 

intervention program and receive “medical/mental health 

evaluation and treatment.”

In his request, Maurice alleged that on July 19, 2019, Karla 

punched him in the face, causing slight bruising and swelling on 

his right cheek, then verbally abused him, denied him access to 
3

the telephone to call 911, and pushed him from behind, causing 

him to fall into a desk and table, which was heard but not 

visually observed by Marc. Maurice stated that police arrived 

and attempted to talk to Karla, but she locked all the doors and 

would not come outside. He further alleged that on March 7, 

2019, Karla kicked him in the leg after following him and yelling 

verbal abuse at him with “extreme anger” for over 30 minutes 

and that this incident also was heard but not directly seen by 

Marc. Police arrived and gave him restraining order advice and 

advice about how to get mental health help for Karla, but at that 

time he decided not to pursue anything unless things escalated.

Prior to these two incidents, Maurice alleged harassment 

by Karla toward him had been escalating for 10 years, including 

physical acts of spitting on him, “stomp[ing] on [his] feet for no 

reason,” turning off the hot water heater when he wanted to take 

a bath, and intentionally bumping into him to try to provoke him. 

The alleged verbal harassment and “bullying” incidents included 

Karla forcing entry into his private room and “trashing” his room 

and personal items, following and yelling at him without 

provocation, destroying his room locks so that he had to enter by 

the window, stealing personal belongings and tampering with his 

food, and threatening him and stating that she wished he were 

dead.

On July 22, 2019, the trial court partly granted and partly 

denied a temporary restraining order, ordering that Karla must 

not “Harass, attack, strike, threaten, assault (sexually or 

otherwise), hit, follow, stalk, molest, destroy personal property, 

disturb the peace, keep under surveillance, impersonate (on the 

Internet, electronically, or otherwise), or block movements” of 

Maurice, and that Maurice had the right to record 
4

communication by Karla that violated the court’s orders. The 

trial court denied until a hearing Maurice’s requests for move-out 

and stay-away orders, stating it was “unclear that you have the 

right to have her removed from the premises” and that “[s]tay 

away is unenforceable/impractical since you live together,” and 

noting that there was “no arrest when police arrived on the 

scene.” The trial court also denied, until a hearing, Maurice’s 

requests that Karla receive a medical/mental health evaluation 

and attend a batterer intervention program.

On August 7, 2019, Karla filed a response, stating she did 

not agree with any of the requested orders “because there was no 

(and never has been any) abuse nor harassment on my part.”

On August 13, 2019, Maurice filed a declaration in the form 

of a printed questionnaire signed by their brother Marc, which 

stated that Marc had seen Karla verbally harass Maurice and 

that Karla and Maurice had “very loud arguments at least two 

times a week.” Marc declared that on July 19, 2019, he heard 

Karla say she was going to fight Maurice “like a man” and that 

Marc observed bruising on the right side of Maurice’s cheek or 

face after Maurice claimed Karla hit him. Marc also declared

that Karla had harassed their father, Melvin, by saying she was 

going to put Melvin in jail based on false statements and that 

Marc’s own relationship with Karla was “friendly” but that she 

had falsely accused Marc of pulling a knife on her, told him to 

leave her alone when he had done nothing wrong, and was 

“allways [sic] calling the police trying to get someone arrested, 

base[d] on lies.” The declaration was refiled on September 18, 

2019, at the request of the trial court, which found the initial 

declaration “ambiguous” because the word “ ‘ANONYMOUS’ ” 

was handwritten next to Marc’s signature line.
5

On August 23 and 26, 2019, Maurice filed requests for 

Melvin and Marc to be added to any approved permanent 

protective orders.

III. Karla’s Domestic Violence Restraining Order 

Request Against Maurice

On August 26, 2019, Karla filed a civil harassment case 

and a request for a DVRO against Maurice, with the assistance of 

counsel.1 (Nicholson v. Nicholson (Super. Ct. L.A. County, 2019, 

No. 19IWRO01023).) Karla sought move-out, stay-away, and 

antiharassment orders as to her and her three adult children, 

permission to record communication made to her by Maurice in 

violation of the court’s orders, and orders that Maurice attend a 

52-week batterer intervention program and pay her attorney fees 

and costs.

Karla alleged that on July 19, 2019, Maurice tried to trip 

her as she entered the kitchen with dishes, turned off the hot 

water heater, hit her on the wrist and grabbed and dug his 

fingers into her arm, and blocked her from her living quarters. 

She denied that the police had come on that date. Karla alleged 

that Maurice had a history of violence and harassment over many 

years and had threatened her and her daughter with a knife on 

multiple occasions, locked her and her children out of the house, 

intentionally contaminated her food, spread trash around the 

house and used dangerous chemicals and aerosols inside the 

home to harass them, hid sharp knives in their clothes, towels, 

and dishwater, and that in 1990 he strangled their sister Karen 

Nickelson to the floor until her lips turned blue.

1 Both parties are proceeding in propria persona on appeal.
6

The trial court denied a temporary restraining order until 

the hearing because of the existing temporary restraining order 

against Karla granted July 22, 2019.

On October 10, 2019, Maurice filed a response to Karla’s 

request for a DVRO, stating that he did not agree to the orders 

she requested because he had never harassed or abused her or 

any of her children or done any of the intentional actions she 

alleged and that he could not pay her attorney fees as he himself 

was on a fee waiver. He disputed all of her allegations, noted 

that he would have been 13 at the time of the alleged strangling 

incident of their sister, and stated that Karla’s claims consisted of 

“1) Complete fabrications that NEVER occurred[,] 2) Gross 

embellishments of actual events[,] 3) Acts by me that were NOT 

intentional, WERE done by mistake or may have been unwise 

judgment, but were NOT intended to harm anyone, did NOT 

harm anyone, and were NOT reckless.”

On September 16, 2019, Maurice filed another declaration 

from his brother Marc, stating that the environment at home was 

peaceful since the temporary restraining order, there were no 

more arguments in the home, Maurice regularly cleaned the 

house and yard, and “everyone is on there [sic] best behavior.”

IV. Maurice’s Property Claim

On October 3, 2019, Maurice filed a request for order for 

repayment of the value of stolen desk furniture. On October 10, 

2019, the trial court ordered that Maurice’s claim for restitution 

for damaged property would be heard at the upcoming 

restraining order hearing, stating that “any findings of fact 

relating to the claims made” in Maurice’s request for order “will 

be determined at the October 15th hearing.”
7

V. Hearing and Dismissal of the Restraining Order 

Requests

After three continuances, a hearing on both requests for a 

restraining order was held on October 15, 2019. The trial court 

heard testimony from Maurice and Karla, Marc, and Karla’s 

adult daughter Kristina Nickelson. The court stated to the 

parties that given their opposing cases, it had “to figure out if 

there is a primary aggressor, and if there is, what do we do.” 

Karla’s counsel offered that this was a “very sad case, one that 

absolutely doesn’t warrant a restraining order,” and that her 

recommendation to the parties was that they seek family therapy 

to address the problems and tensions in their relationship.

Maurice testified that in 2017 Karla had come into his 

room, verbally harassed him, including calling him a “bitch-ass 

nigga,” “loser,” and “psychopath,” and “trash[ed] the room” for no 

reason, yelling and knocking his possessions to the floor while 

Maurice remained calm. Maurice claimed he had recorded video 

evidence of this incident, and the trial court instructed him just 

to describe what had happened. Maurice testified that in 2018, 

Karla had filled her mouth with water, spit it out all over him, 

and yelled at the top of her lungs and verbally assaulted him 

similarly to the 2017 incident, including that “she hates me and 

wishes I was dead,” “she’s hated me ever since I was a baby,” “no 

one likes me,” and that he was “a loser with no 

accomplishments.” He denied ever pulling knives on Karla or her 

daughter.

Maurice testified that on March 7, 2019, Karla had kicked 

him after he suggested getting Medi-Cal for her daughter’s 

healthcare. Maurice testified that she had “blown up” at his 

suggestion, “became extremely loud and angry more so than I 
8

have ever seen,” followed him to his room, and kicked him in the 

leg. Prior to that date, Karla had only done “minor” physical 

things, like stomping his feet or shoving him.

Maurice described July 19, 2019, as an “escalating event.” 

On that date, Karla kept turning the water heater off after he 

turned it on to take a bath. Eventually they were both standing 

by the water heater switch flipping it on and off in front of each 

other “in a childish manner,” when Karla accused him of hitting 

her, punched him in the face causing a “small bruise,” and 

blocked him from reaching the kitchen phone to call 911.

Maurice told the trial court he had a video showing where she hit 

him under his eye, and the court replied that it would listen to 

what he had to say under oath. Maurice testified that after 

hitting him Karla pursued him down the hallway to his room, 

where she pushed him from behind and he “fell into the desk 

furniture.” He stated that he had a picture of the desk he fell 

into.

Maurice admitted that at 6 feet 2 inches and 150 pounds he 

was “significantly taller” than Karla, who he believed to be 110 

pounds. He claimed emotional distress from all the incidents, 

and that he felt after the July 19 incident that Karla’s “anger is 

too risky, her escalating behavior is unsafe to live with,” and it 

was starting to involve Karla’s children acting against him as 

well.

Karla testified that she had observed Maurice “lunge” or 

“jabb[ing]” a knife in her daughter’s direction, gesturing with a 

knife at Karla herself, and that he turned the hot water off and 

threw trash in her bath water. She stated that he hit her twice, 

in 2017 and 2018, and hit her wrist and grabbed it away from the 

knob on the hot water tank. Karla denied kicking him in March
9

2019. She also stated that Maurice had intentionally left all the 

gas stove burners on, unlit, on multiple occasions.

Marc testified that he had not directly seen any physical 

violence by either sibling toward the other, just heard a scuffle 

when they got into a fight on July 19, 2019, and heard when they 

would “get into it” about turning the hot water heater on and off. 

Marc stated that Maurice generally did not raise his voice during 

interactions with Karla, although Maurice “may say something 

that may be inappropriate sometimes,” including comments 

about Karla’s children. Marc indicated that he felt stuck in the 

middle and said, “I hear them arguing all the time. I don’t know 

how it will stop. It seem[s] like it’s been escalating to the 

physical nature. I want to avoid the police. I don’t want anybody 

going to jail or calling the police. It’s getting out of hand. 

Hopefully this forum can correct everyone’s behavior. So far it’s 

been peaceful in the house.”

Kristina testified that Maurice often swept trash into 

different areas of the house and left the gas on, and that he made 

three thrusting motions with a knife at her in the kitchen the 

previous year. Kristina stated that on July 19, 2019, she 

observed him try to trip Karla in the kitchen, then block Karla’s 

exit in a threatening manner until Karla hit him in defense on 

the left cheek with a pack of butter.

The trial court concluded there was no basis for the 

issuance of a permanent restraining order in either case, and 

that both parties failed to carry their burden of proof that abuse 

occurred and failed to establish that issuance of a restraining 

order was warranted under the totality of the circumstances. 

The court stated: “I think at this point, I hear a lot of discontent, 

a lot of friction, but I think in this case I really have to agree with 
10

Karla’s counsel. We really need family counseling. You guys are 

getting on each other’s nerves. I don’t think it’s gotten to the 

point where I’m prepared to issue a permanent order.” The trial 

court denied both requests for a permanent order, “strongly 

urge[d]” the siblings to participate in cocounseling and try to 

work things out, and advised them “to get out of each other’s 

faces and respect each other’s space.” The court made no findings 

or rulings regarding Maurice’s property claim.

On October 25, 2019, Maurice filed a notice of intent to 

move for a new trial and subsequently moved for a new trial on 

the basis that the trial court improperly excluded video and 

photographic evidence and medical reports, and that there was 

insufficient evidence to dismiss his case. At the hearing on his 

motion for a new trial on November 13, 2019, the trial court 

directed Maurice to file an appeal and ordered the new trial 

motion off calendar.

Maurice timely appealed the trial court’s dismissal of his 

DVPO request. He filed a separate notice of appeal from the trial 

court’s order ordering his new trial motion off calendar; as 

discussed below we review this order based on Maurice’s appeal 

from the underlying dismissal order.

DISCUSSION

Maurice contends that the trial court’s order dismissing his 

request for a domestic violence restraining order was an abuse of 

discretion and that no substantial evidence supports the court’s 

decision. He also contends that the court specifically abused its 

discretion by precluding video and photographic evidence, by not 

giving him the opportunity to cross-examine Karla and Kristina, 

by ordering his new trial motion off calendar, and by not 

addressing his property restitution claim. We conclude that the 
11

trial court did not address Maurice’s property claim and must do 

so on remand. In all other respects, we affirm.

I. Relevant Law

Under the Domestic Violence Prevention Act (DVPA) (Fam. 

Code, § 6200 et seq.), the trial court may issue a protective order 

enjoining a party from engaging in specific acts of harassment or 

abuse against a cohabitant or former cohabitant. (Fam. Code, 

§§ 6211, subd. (b), 6218, 6322, 6340, subd. (a)(1).) Under the 

DVPA, the court must “ ‘consider the totality of the circumstances 

in determining whether to grant or deny a petition for relief.’ ” 

(§ 6301, subd. (c); Lugo v. Corona (2019) 35 Cal.App.5th 865, 

869.)

The standard of review for the grant or denial of a DVPO is 

abuse of discretion. (Rodriguez v. Menjivar (2015) 243 

Cal.App.4th 816, 820; In re Marriage of Nadkarni (2009) 173 

Cal.App.4th 1483, 1495; Fam. Code, § 6300, subd. (a).) “We 

likewise review the trial court’s failure to consider evidence in 

issuing a DVRO for an abuse of discretion.” (In re Marriage of 

Davila & Mejia (2018) 29 Cal.App.5th 220, 226.) “ ‘A trial court’s 

exercise of discretion will not be disturbed on appeal unless, as a 

matter of law, an abuse of discretion is shown—i.e.,—where, 

considering all the relevant circumstances, the court has 

“exceeded the bounds of reason” or it can “fairly be said” that no 

judge would reasonably make the same order under the same 

circumstances.’ ” (In re Marriage of Smith (1990) 225 Cal.App.3d 

469, 480, italics omitted.) “ ‘So long as the court exercised its 

discretion along legal lines, its decision will not be reversed on 

appeal if there is substantial evidence to support it.’ ” (Ibid.)

In determining whether there is substantial evidence to 

support the trial court’s decision to grant or deny a DVPO, we 
12

resolve all conflicts in the evidence in favor of the prevailing 

party and indulge all legitimate and reasonable inferences in 

favor of upholding the trial court’s order. (In re Marriage of 

Bonds (2000) 24 Cal.4th 1, 31; McCord v. Smith (2020) 51 

Cal.App.5th 358, 364.) “If two or more reasonable inferences can 

be reasonably deduced from the facts, we have no authority as a 

reviewing court to substitute our judgment for the trial court’s 

judgment.” (McCord v. Smith, at p. 364.)

An order denying a request for a restraining order under 

Family Code section 6200 et seq. is immediately appealable as an 

order refusing to grant an injunction. (Nakamura v. Parker

(2007) 156 Cal.App.4th 327, 332; Code Civ. Proc., § 904.1, subd. 

(a)(6).)

II. Substantial evidence supports the trial court’s 

order, and it did not abuse its discretion in 

dismissing Maurice’s request for a DVPO.

Here, the trial court concluded that the situation in the 

parties’ household, although one of “friction” and “discontent,” did 

not rise to the level of requiring any permanent protective order. 

Substantial evidence supports this determination with regard to 

Maurice’s request for a protective order against Karla.

Resolving all evidentiary conflicts in favor of Karla as the 

prevailing party, the evidence indicates that on July 19, 2019,

Karla engaged in a verbal confrontation with Maurice regarding 

the hot water heater during which he hit and grabbed her hand 

on the heater knob, that she struck Maurice’s face in defense 

after he tried to trip her in the kitchen, blocking her passage, and 

the two had a “scuffle” in Maurice’s bedroom that was overheard 

by Marc. In March 2019 Karla engaged in a verbal altercation 

with Maurice regarding her daughter’s medical care but denied 
13

kicking him. Karla did not offer any contradictory testimony 

regarding the 2017 incident in which Maurice alleged she entered 

his room, berated him, and trashed his possessions, or regarding 

the 2018 incident in which Maurice alleged she spit water on him

and verbally abused him, although she did testify that Maurice 

deliberately engaged in provocative and disrespectful behaviors 

in the home to incite her to anger and had hit her twice before in 

2017 and 2018.

Under the totality of the circumstances, the trial court was 

within its discretion to conclude that these incidents and 

behaviors in the home did not rise to a level requiring a 

protective order. Because the trial court found insufficient 

evidence to justify a protective order in Maurice’s favor, we can 

find an abuse of discretion in denying the DVRO only if “ ‘the 

evidence compels a finding in favor of the appellant as a matter of 

law. [Citations.] Specifically, the question becomes whether 

[Maurice’s] evidence was (1) “uncontradicted and unimpeached” 

and (2) “of such a character and weight as to leave no room for a 

judicial determination that it was insufficient to support a 

finding.” ’ ” (Sonic Manufacturing Technologies, Inc. v. AAE 

Systems, Inc. (2011) 196 Cal.App.4th 456, 466.) Here, there was 

ample discretionary room for a judicial determination that the 

uncontradicted evidence was insufficient to support a finding in 

Maurice’s favor. The parties undisputedly had significant verbal 

conflict, and at least one physical incident by Karla against 

Maurice where Karla struck Maurice’s cheek and pushed him 

into his desk. But even if there have been instances of domestic 

violence in the past, the DVPA does not mandate a restraining 

order be granted on that basis alone. Rather, the court must 

exercise its discretion to decide whether, even if past abuse has 
14

been proven, the circumstances of the case warrant a DVRO to 

prevent future acts of domestic violence. (Fam. Code, §§ 6220, 

6300.)

Maurice urges us to reconsider his version of disputed 

events along with his uncontradicted testimony and to conclude

the trial court erred in ruling that the evidence was insufficient 

to justify a DVPO. However, on review, we accept as true the 

evidence in Karla’s favor (see Burquet v. Brumbaugh (2014) 223 

Cal.App.4th 1140, 1143), and we may not make factual 

determinations in place of those made by the trial court (Dreyer’s 

Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 

828, 838). The testimony of a single witness, even a party, may 

alone constitute substantial evidence (In re Marriage of Mix

(1975) 14 Cal.3d 604, 614), and to the extent Maurice argues that 

Karla’s testimony was not credible, we must infer the trial court 

resolved questions of credibility in a manner that supports its 

findings and order (Schild v. Rubin (1991) 232 Cal.App.3d 755, 

762). In so doing, we cannot conclude that the trial court abused 

its discretion in finding that there was insufficient evidence to 

justify a protective order in favor of Maurice.

The trial court also was within its discretion not to consider 

Maurice’s video and photographic evidence in its determination. 

The trial court has broad authority and a statutory duty to 

control trial proceedings, including the introduction and 

exclusion of evidence. (Evid. Code, §§ 320, 352.) This discretion 

includes “the power to rule on the admissibility of evidence, 

exclude proffered evidence that is deemed to be irrelevant, 

prejudicial or cumulative and expedite proceedings which, in the 

court’s view, are dragging on too long without significantly aiding 

the trier of fact.” (In re Marriage of Carlsson (2008) 163 
15

Cal.App.4th 281, 291.) It is only when the trial court abuses this 

discretion “ ‘in such manner as to prevent a full and fair 

opportunity to the parties to present all competent, relevant, and 

material evidence bearing upon any issue properly presented for 

determination’ ” that a litigant’s due process rights are 

implicated. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 

1357; see Evid. Code, § 354 [“A verdict or finding shall not be set 

aside, nor shall the judgment or decision based thereon be 

reversed, by reason of the erroneous exclusion of evidence unless 

the court which passes upon the effect of the error or errors is of 

the opinion that the error or errors complained of resulted in a 

miscarriage of justice”].)

Here, Maurice informed the trial court that he had a video

recording of the 2017 incident when Karla entered his room, 

video evidence showing his face after Karla struck him on

July 19, 2019, and a photograph of the desk Karla pushed him 

into on July 19, 2019. But such evidence had only cumulative 

value in that its admission would have added nothing to what 

was already before the trial court through Maurice’s personal

testimony regarding the 2017 incident, his testimony that he had 

a “small bruise” on his face after Karla hit him, and Marc’s 

declaration that Maurice’s face was visibly bruised in July 2019. 

Karla presented no testimony disputing Maurice’s 

characterization of the 2017 incident, nor did she deny that she 

struck and bruised Maurice on July 19, 2019, or that she pushed 

him into his desk. Under the circumstances, Maurice suffered no 

prejudice from the court’s decision not to view his video or photo 

evidence. (See McCarthy v. Manhattan Beach (1953) 41 Cal.2d 

879, 895 [no prejudice to reject testimony with only cumulative 

value regarding undisputed facts].) Even were we to conclude the 
16

trial court erroneously excluded Maurice’s evidence, it is not 

reasonably probable that a result more favorable to him would 

have been reached absent the error. (People v. Watson (1956) 46 

Cal.2d 818, 836.)

With regard to Maurice’s argument that he was not given 

sufficient opportunity to cross-examine Karla or Kristina at the 

hearing, “the trial court has discretionary power over crossexamination, the exercise of which will be reviewed on appeal 

only if such discretion has been abused.” (Melvin v. Berendsen

(1935) 7 Cal.App.2d 389, 391–392.) Maurice contends that the 

trial court abused its discretion by not affirmatively offering him 

the chance to cross-examine the witnesses. However, he did not 

object at the hearing to the scope of cross-examination or request 

to question the witnesses. “ ‘An appellate court will not consider 

procedural defects or erroneous rulings where an objection could 

have been, but was not, raised in the court below.’ ” (Children’s 

Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 

776.)

Likewise, although Maurice also contends that medical 

records and police reports should have been considered, he did 

not offer any records or reports into evidence at the hearing. The 

fact that Maurice is appearing in propria persona makes no 

difference. The rules of civil procedure “apply equally to parties 

represented by counsel and those who forgo attorney 

representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 

984–985.) A self-represented litigant is not entitled to “special 

treatment” (Stebley v. Litton Loan Servicing, LLP (2011) 202 

Cal.App.4th 522, 524) but is held to the same standards as a 

party represented by counsel (Nwosu v. Uba (2004) 122 

Cal.App.4th 1229, 1247).
17

III. No Prejudice Resulted From the Trial Court

Ordering Maurice’s New Trial Motion Off 

Calendar.

The trial court ordered Maurice’s motion for new trial off 

calendar after directing him to file an appeal. As an initial 

matter, such an order in itself is not equivalent to a denial of the 

new trial motion. Although an order dismissing a motion for a 

new trial may be construed as an order denying the motion

(Hughes v. De Mund (1924) 70 Cal.App. 265, 267), “ ‘ “[o]ff 

[c]alendar” is not synonymous with “dismissal.” “Off” merely 

means a postponement whereas a “dismissal” in judicial 

procedure has reference to a cessation of consideration’ ” (R & A 

Vending Services, Inc. v. City of Los Angeles (1985) 172 

Cal.App.3d 1188, 1193–1194).

However, where, as here, no order on a motion for new trial 

is entered within 75 days after the moving party’s notice of 

intention, the motion is ultimately deemed denied by operation of 

law. (Code Civ. Proc., § 660, subd. (c).) The filing of a notice of 

appeal from the underlying judgment does not affect the 

procedural operation of a motion for new trial (Neff v. Ernst

(1957) 48 Cal.2d 628, 634), and “denial by operation by law of a 

motion for new trial is reviewable on appeal from the judgment” 

(Weisenburg v. Molina (1976) 58 Cal.App.3d 478, 486; see Walker 

v. Los Angeles County Metropolitan Transportation Authority

(2005) 35 Cal.4th 15, 19 [“an order denying a motion for new trial 

is not independently appealable and may be reviewed only on 

appeal from the underlying judgment”]). “The denial of a new 

trial motion is reviewed for an abuse of discretion, except that a 

trial court’s factual determinations are reviewed under the 
18

substantial evidence test.” (Minnegren v. Nozar (2016) 4 

Cal.App.5th 500, 514, fn. 7.)

Here, all of the grounds raised in Maurice’s motion for new 

trial were incorporated in his contentions on appeal, and we have 

given full consideration to them in our discussion of the issues 

raised by this appeal. We therefore conclude that no prejudice 

resulted to Maurice from the trial court’s decision to take the 

motion for new trial off calendar.

IV. The Trial Court Erred By Not Ruling On 

Maurice’s Property Claim.

Although the trial court expressly ordered that Maurice’s 

property claim would be determined at the October 15, 2019 

hearing, it failed to do so. At the hearing, Maurice stated in 

opening, “I’m also seeking restitution in the amount of $500 for 

damage to stolen property and lost wages.” However, the trial 

court did not thereafter take testimony or make any ruling 

regarding the property claim. Maurice is entitled to a 

determination of his restitution claim on remand.
19

DISPOSITION

The case is remanded to the superior court for the limited 

purpose of a determination of appellant Maurice Nickelson’s 

property restitution claim in accordance with this opinion. In all 

other respects, the judgment is affirmed. The parties shall bear 

their own costs on appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.