Opinion
D071313
05-23-2018
Estate of IKE TURNER, Deceased. BEVERLY BRITO, as Administrator, etc., Petitioner and Respondent, v. JEANETTE BAZZELL TURNER, Objector and Appellant.
Jeanette Bazzell Turner, in pro. per., for Objector and Appellant. Law Office of Constance J. Larsen and Constance J. Larsen; Law Offices of Anthony J. Boucek and Anthony J. Boucek for Petitioner and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2007-00100434-PR-LS-NC) APPEAL from a judgment of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Appeal dismissed. Jeanette Bazzell Turner, in pro. per., for Objector and Appellant. Law Office of Constance J. Larsen and Constance J. Larsen; Law Offices of Anthony J. Boucek and Anthony J. Boucek for Petitioner and Respondent.
Objector and appellant Jeanette Bazzell Turner appeals from a judgment after a trial in favor of petitioner and respondent Beverly Brito, as Administrator of the Estate of Ike Turner (the Administrator). In her opening brief, Turner contends the probate court erred in: (1) denying Turner's ex parte application to continue the trial; (2) overruling Turner's objection to the admission of a deposition transcript into evidence; and (3) denying Turner's motion to set aside the judgment and for a new trial. In addition to disagreeing with Turner's substantive arguments, the Administrator contends that Turner did not timely file her notice of appeal from the judgment. We agree with the Administrator's jurisdictional argument and will dismiss the appeal.
I.
INTRODUCTION
In the probate court, at times Turner was represented by counsel, and at times (including in preparation for and attending the underlying trial) Turner represented herself. She has also been representing herself throughout this appeal. In both the trial and appellate courts, the procedural rules apply the same to self-represented parties as to parties represented by counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205 ["The same rules apply to a party appearing in propria persona as to any other party."]; County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444 [self-represented parties "entitled to the same, but no greater, consideration than other litigants and attorneys"].) While Turner's self-represented status no doubt has contributed to certain deficiencies, it does not excuse them. (Rappleyea, at p. 984 [self-representation is not a basis for lenient treatment]; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
In addition to the issues raised in the parties' briefs, the parties have presented five motions for the court's consideration.
In December 2016, prior to preparation of the record, the Administrator moved to dismiss the appeal for lack of jurisdiction. After receiving and considering Turner's opposition to the motion, the court deferred ruling to the merits panel. Based on the Administrator's motion, Turner's opposition to the motion, both parties' merits briefs, and the complete record on appeal, for the reasons explained at part III.A., post, we grant the motion to dismiss for lack of jurisdiction.
In November 2017, approximately three weeks after filing her opening brief, Turner moved for judicial notice of seven documents and "the fact that [one of the Administrator's trial counsel] has an unusual and customary habit of filing frivolous pleadings for which other courts have sanctioned him." Since we will be deciding this appeal on jurisdictional grounds, and the objects of Turner's motion do not affect any potential jurisdictional issues, we deny Turner's November 2017 motion for judicial notice. (Shamrock Foods, supra, 24 Cal.4th at p. 422, fn. 2 [Judicial notice is proper only if the material to be noticed is relevant to a claim of error and helpful to its resolution.].)
We further note that, because counsel's "unusual and customary habit[s]" or prior awards of sanctions have nothing to do with any issue in Turner's appeal, were we to reach the merits, the motion would have fared no better. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 (Shamrock Foods).)
Similarly, in February 2018, six weeks after Turner filed her reply brief, she filed a second motion for judicial notice. We deny this motion on the same grounds as her first motion—namely, the objects of Turner's motion do not affect our analysis of the jurisdictional issue. (Shamrock Foods, supra, 24 Cal.4th at p. 422, fn. 2.)
The result would be no different even if we reached the merits. Turner's second motion for judicial notice asks that we take judicial notice of legal argument and of items already in the record on appeal—neither of which is a proper subject of judicial notice. (Evid. Code, § 459.)
In December 2017, accompanying her merits brief, the Administrator moved to augment the clerk's transcript to include the petition that initiated the probate proceedings that resulted in the judgment on review in this appeal. Once again, because we will be deciding this appeal on jurisdictional grounds, the allegations in the charging document are not necessary or helpful to the resolution of the appeal. On this basis, we deny the Administrator's motion to augment the clerk's transcript. (Shamrock Foods, supra, 24 Cal.4th at p. 422, fn. 2.)
In any event, a copy of the verified petition is included as an exhibit to the Administrator's motion to dismiss the appeal.
Finally, in December 2017, after the completion of the merits briefing, the Administrator filed a motion for sanctions under Code of Civil Procedure section 907 and California Rules of Court, rule 8.276(a). According to the Administrator, Turner "filed and pursued an objectively and subjectively frivolous appeal"; Turner included in the record on appeal "a vast majority of matters not reasonably necessary to the determination of the appeal"; and Turner "committed numerous unreasonable violations of appellate procedure." For reasons that we explain at part III.C., post, we deny the Administrator's motion.
Further undesignated statutory references are to the Code of Civil Procedure, and further undesignated rule references are to the California Rules of Court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Because we will decide this appeal on jurisdictional grounds, the underlying facts are irrelevant, and we will be focusing on the procedures employed and the dates of their employment.
In November 2014, pursuant to Probate Code sections 850 and 859, the Administrator filed a petition against Turner for recovery of personal and intellectual property belonging to the Estate of Ike Turner and for sanctions, damages based on the value of the property taken, and double damages based on a wrongful taking of the property. Turner responded, filing an objection to the petition in January 2015.
The case went to trial on April 22, 2016. The probate court received testimonial and documentary evidence, and the parties rested. The court then set a May 19, 2016 date for a one-hour closing argument.
On May 16, 2016, Turner filed an ex parte request to continue the May 19 oral argument. In support, Turner stated that her mother was experiencing side effects from chemotherapy treatment following surgery, and Turner submitted a letter from a doctor stating that she suffered vertigo and needed 10 days of bed rest. Because Turner failed to give the Administrator proper notice, the court continued the ex parte hearing until May 19.
At the beginning of the proceedings on May 19, 2016, after hearing from Turner, the court denied her request to continue the closing argument. The court ruled that Turner had not established the requisite good cause for the continuance, since she was present in court and all that was left was the one hour of closing argument following the April 22 one-day trial. At the conclusion of the parties' presentations, the court granted in part and continued in part the Administrator's petition. More specifically, the court granted the injunctive relief requested by the Administrator and continued the matter until May 27, 2016, regarding a final ruling on the Administrator's prayer for damages and double damages.
The court also encouraged the parties to settle the issue of damages, suggesting a procedure that the court believed might benefit everyone given the status of the matter at that time.
At the continued closing argument on May 27, 2016, the parties presented their respective positions on damages, and the court ruled, again granting in part and denying in part the Administrator's petition. More specifically, the court valued the property at issue, found Turner liable to the Administrator for that amount in damages, and assessed an additional penalty of double that amount of damages against Turner under Probate Code section 859. The court denied the Administrator's request for attorney fees and costs under Probate Code section 859. Finally, the court directed counsel for the Administrator to prepare a judgment.
Of note, at the hearing, Turner confirmed that she had no objection to the injunction against her that the court ordered at the May 19, 2016 hearing.
On June 1, 2016, counsel for the Administrator served Turner with a proposed judgment. Hearing nothing from Turner in more than a month, counsel submitted the proposed judgment to the court in early July 2016.
Meanwhile, on June 17, 2016—after receipt of a proposed judgment and before submission of a proposed judgment to the court—Turner filed a motion to set aside the judgment and for a new trial. The court set the hearing on the motion four months later on October 14, 2016.
The probate court entered its judgment on July 8, 2016. Consistent with the court's oral rulings following the closing arguments in May, the judgment is in favor of the Administrator and against Turner, awarding both injunctive relief and money damages.
The record on appeal contains a "Notice of Judgment" with a declaration of mail service on Turner on July 21, 2016. As part of this document, the Administrator both gave formal written notice of the filing of the judgment and included a file-endorsed copy of the judgment. The validity of the service of this document—in particular, the fact that it contains only the signature, not the printed name, of the person who served the notice—is outcome determinative in this appeal, and we will discuss it further at part III.A., post.
In late September 2016, the court continued the hearing on Turner's motion (to set aside the judgment and for a new trial) for three days—from October 14 until October 17, 2016.
The Administrator filed a written opposition to Turner's motion, Turner filed a reply to the Administrator's opposition, and the hearing proceeded as scheduled on October 17, 2016. The probate court ruled that, on two independent bases, Turner's motion was denied by operation of law.
The probate court additionally ruled that, even if it had reached the merits of Turner's motion, the result would have been no different, because none of the statutory grounds for relief applied.
Four days later, on October 21, 2016, Turner appealed from the July 8, 2016 judgment.
III.
DISCUSSION
"The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal." (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 (Van Beurden).) With an exception inapplicable here, "[i]f a notice of appeal is filed late, the reviewing court must dismiss the appeal." (Rule 8.104(b), italics added.)
As we explain, this court lacks jurisdiction to consider Turner's appeal because Turner did not timely file a notice of appeal from the judgment.
Rule 8.104 deals with the time to appeal and, as applicable here, provides:
"(a) Normal time
"(1) Unless . . . rule[] 8.108 . . . provides otherwise, a notice of appeal must be filed on or before the earliest of: [¶] . . . [¶]
Here, the record contains a copy of a notice that the Administrator served Turner by mail with a file-stamped copy of the judgment. " 'Where notice is by a party, sending an endorsed copy of the judgment showing its date of entry constitutes sufficient notice and failure to file notice of appeal within 60 days results in dismissal of the appeal.' " (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360 (Sharp).) There is an issue, however, as to the validity of the notice, which we discuss at part III.A., post."(B) 60 days after the party filing the notice of appeal . . . is served by a party with . . . a file-endorsed copy of the judgment, accompanied by proof of service; or
"(C) 180 days after entry of judgment."
Rule 8.108 deals with extending the time to appeal. Subparts (b) and (c) extend the normal time to appeal in the event of a valid motion for new trial or a valid motion to vacate the judgment, respectively, and, as applicable here, provide:
"(b) Motion for new trial
"If any party serves and files a valid notice of intention to move for a new trial, the following extensions of time apply:
"(1) If the motion for a new trial is denied, the time to appeal from the judgment is extended for all parties until the earliest of: [¶] . . . [¶]
"(B) 30 days after denial of the motion by operation of law; or
"(C) 180 days after entry of judgment."
"(c) Motion to vacate judgment
"If, within the time prescribed by rule 8.104 to appeal from the judgment, any party serves and files . . . a valid motion . . . to vacate the judgment, the time to appeal from the judgment is extended for all parties until the earliest of: [¶] . . . [¶]
"(2) 90 days after the first . . . motion . . . is filed; or
"(3) 180 days after entry of judgment."
In part III.A., post, we will apply the normal deadlines in rule 8.104(a)(1) to determine the timeliness of Turner's notice of appeal. In part III.B., post, we will determine whether either of the extensions of time allowed under subparts (b) and (c) of rule 8.108 applies to extend the time for Turner to have filed a notice of appeal. A. Turner Did Not Timely File Her Appeal Under Rule 8.104(a)(1)
If the Administrator properly served Turner with the file-endorsed copy of the judgment, then Turner was required to have filed her notice of appeal within 60 days of the July 21, 2016 service (rule 8.104(a)(1)(B))—which we calculate to be no later than Monday, September 19, 2016.
The proof of service on the document by which the Administrator transmitted the file-endorsed copy of the judgment shows service on July 21, 2016. Taking judicial notice of the calendar for the July-September 2016 time period (Evid. Code, §§ 452, subd. (h), 459, subd. (a)(2); Douglas v. Janis (1974) 43 Cal.App.3d 931, 936 (Douglas)), we determine Monday, September 19, to be 60 days after July 21.
In her reply brief on appeal, Turner argues both that she "never received this purported service" and that the Administrator's proof of service is defective (and thus ineffective for establishing service of process) because it does not contain what Turner describes as the "printed name of who supposedly performed the service." Accordingly, Turner continues, she was required to have filed her notice of appeal no later than 180 days after the July 8, 2016 entry of judgment (rule 8.104(a)(1)(C))—which we calculate to be Wednesday, January 4, 2017.
In her opposition to the Administrator's motion to dismiss the appeal, Turner more accurately describes the proof of service as containing "an eligible signature [but] no written printed name next to it saying who it is." (Italics added.)
The judgment was filed on July 8, 2016. Taking judicial notice of the calendar for the July 2016-January 2017 time period (Evid. Code, §§ 452, subd. (h), 459, subd. (a)(2); Douglas, supra, 43 Cal.App.3d at p. 936), we determine Wednesday, January 4, 2017, to be 180 days after July 8, 2016.
Here, Turner filed her notice of appeal on October 21, 2016. This is more than a month after the 60-day deadline (rule 8.104(a)(1)(B)), if the Administrator's service of the notice of the filing of the judgment is valid; but this is many months less than the 180-day deadline (rule 8.104(a)(1)(C)), if the service of the notice of the filing of the judgment is not valid.
Initially, we note that Turner's statement in her appellate brief that she did not receive service of the notice of the filing of the judgment is not evidence that she did not receive the document. (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 454 ["unsworn averments in a memorandum of law . . . do not constitute evidence"].) Nonetheless, we will proceed with the analysis, because nonreceipt of the document being served is not the standard to be applied. Service by mail is complete at the time of deposit in the mail (§ 1013, subd. (a)); the sender does not have the burden of showing the notice was actually received (Sharp, supra, 8 Cal.App.4th at p. 360 [60-day period commenced though appellant never received mailed notice of entry of judgment]). To the contrary, with regard to service by mail, " 'the addressee incurs the risk of the failure of the mail.' " (Silver v. McNamee (1999) 69 Cal.App.4th 269, 283 (Silver).) Thus, we must determine the validity of the Administrator's July 21 mail service of the notice of the filing of the judgment in order to decide the validity of Turner's October 21 notice of appeal.
Section 1013 establishes certain methods for service of process, including by U.S. mail (id., subds. (a), (b)); and section 1013a sets forth certain methods to prove service by mail, three of which apply to service by a party (id., subds. (1)-(3)). Section 1013a, subdivision (3) applies here to the Administrator's proof of service by mail of the filing of the judgment. Of the numerous and varied requirements contained in this statute, at issue in this appeal is only whether the certificate of service adequately showed "the name . . . of the person making the service." (§ 1013a, subd. (3)(A), italics added.)
Notably, California's statute that sets forth the minimum requirements for a certification or declaration under penalty of perjury does not require disclosure of the name of the person signing the document. Section 2015.5, subdivision (a) provides that, whenever a certification or declaration is required, if executed within California (as the proof of service at issue here indicates), it "may be in substantially the following form":
" 'I certify (or declare) under penalty of perjury that the foregoing is true and correct':
"__________
" (Date and Place)
__________
(Signature)"
The one-page proof of service attached to the Administrator's notice of the filing of the judgment provides as follows:
"I, the undersigned, do declare . . . . [¶] . . . [¶]
"I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed on July 21, 2016 at San Diego, CA.
" [illegible signature] "
All of the information required in section 1013a, subdivision (3), other than the name of the person making the service, is contained within this omitted portion of the document.
We conclude that the Administrator's proof of service complies with section 1013a's requirement that it set forth "the name" of the person who effected the service: The statement is written in the first person, and at the conclusion of the statement, the person signed his or her name. The fact that the signature may be illegible is a different issue; the document does contain the name of the person who served the process. Contrary to Turner's argument, there is no requirement that the document contain the "printed name of who supposedly performed the service." (Italics added.)
Even if, as argued by Turner, a "printed name" were required, in this case the Administrator's proof of service substantially complies with such a requirement. There is some disagreement in the law as to how strictly a party must comply with the proof of service requirements of section 1013a. (Compare Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437, 443 ["even where proof of service must conform to the requisites of . . . section 1013a, only substantial compliance is required"]; Glasser v. Glasser (1998) 64 Cal.App.4th 1004, 1011 (Glasser) ["the proof of service substantially complied with the requirements of . . . section 1013a"]; Conservatorship of Wyatt (1987) 195 Cal.App.3d 391, 397 [proof of service "substantially complied with the proof of service requirements of . . . section 1013a"]; Douglas, supra, 43 Cal.App.3d at p. 937 ["substantial, without literal, compliance" sufficient for § 1013a]; with Simplon Ballpark, LLC v. Scull (2015) 235 Cal.App.4th 660, 664 ["Service by mail must be made in strict compliance with the mandates of section[] . . . 1013a."]; Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 511 ["strict compliance with statutory provisions for service by mail is required"]; Sharp, supra, 8 Cal.App.4th at p. 360 ["effective service requires strict compliance with . . . 1013a"]; Silver, supra, 69 Cal.App.4th at p. 279 [same]; Dobrick v. Hathaway (1984) 160 Cal.App.3d 913, 921 (Dobrick) [same].)
Notably, the Glasser opinion exemplifies that the substantial compliance standard applies even in instances where the intended recipient of the service of process denies having received what was served. (Glasser, supra, 64 Cal.App.4th at pp. 1008-1009.)
For purposes of the present appeal, even if we were to assume that section 1013a, subdivision (3)(A) requires a printed name, the result is no different, because we would adopt the Douglas court's approach to the issue: "The rule of 'strict compliance' is satisfied by substantial, without literal, compliance . . . ." (Douglas, supra, 43 Cal.App.3d at p. 937.) The distinction between the two is demonstrated by two of the above-cited cases—each addressing the requirement that the proof of service show the "address of the person served" (see § 1013a, subd. (3)(F)), which must be either that person's "office address as last given by that person on any document filed in the cause" or "place of residence" (§ 1013, subd. (a)). In Dobrick, the court found the proof of service to be defective (and, thus, ineffective) because it failed to identify the address on the envelope being served by mail. (Dobrick, supra, 160 Cal.App.3d at pp. 921-922.) In contrast, in Douglas, where the proof of service provided a correct street address, but omitted the building name and suite number of the building, service was effective because the proof sufficiently identified the address. (Douglas, at pp. 936-937; accord, Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58-59.)
Our research did not disclose any cases that discussed section 1013a's requirement that the proof of service set forth "the name . . . of the person making the service." (Id., subds. (1), (2), (3)(A), italics added.)
As in Douglas, the Administrator's proof of service here contains the statutorily required information being challenged—i.e., "the name . . . of the person making the service" (§ 1013a, subd. (3)(A)). Contrary to Turner's objection, section 1013a, subdivision (3) does not contain a requirement that the name be printed.
Having determined that the Administrator's July 21, 2016 proof of service of the notice of the filing of the judgment is valid, we conclude that, absent a cognizable extension of time, Turner was required to file a notice of appeal from the judgment within 60 days of the service—i.e., no later than September 19, 2016. (Rule 8.104(a)(1)(B).) Since she did not file the notice until a month later on October 21, 2016, her appeal is untimely and we must dismiss it, unless Turner was entitled to an extension of time under rule 8.108. B. Rule 8.108 Did Not Extend the September 19, 2016 Deadline to Appeal
On June 17, 2016—three weeks prior to the filing of the judgment—Turner filed a motion to set aside the judgment and for a new trial. In support, she filed two declarations, both of which predated the trial: one was from her former attorney dated a year earlier in June 2015; and one, dated April 2016, was from a friend of Turner who had attended a settlement conference with her. Turner did not file a memorandum of points and authorities or otherwise provide the probate court with legal authorities, either statutory or caselaw, in support of the motion; and both declarations predated the trial without mentioning anything about the trial.
As such, neither the Administrator, the probate court, nor we know exactly what procedure Turner intended to invoke. We will assume without deciding that, in fact, Turner brought both a motion for a new trial (§ 657) and a motion to set aside the judgment (§ 663).
Since Turner's motion does not provide any legal authorities, we must, to a certain extent, speculate as to the basis of the motion to set aside the judgment. The motion does not mention extrinsic fraud (see Olivera v. Grace (1942) 19 Cal.2d 570, 574-575) or a void judgment (see § 473, subd. (d)); thus, we have assumed Turner intended to rely on section 663.
With regard to a motion for a new trial, rule 8.108(b) allows for an extension of time to file a notice of appeal upon a requisite showing under section 657, if the aggrieved party "serves and files a valid notice of intention to move for a new trial." (Italics added.) With regard to a motion to set aside the judgment, rule 8.108(c) allows for an extension of time to file a notice of appeal upon a requisite showing under section 663, if the aggrieved party "serves and files a valid notice of intention to move—or a valid motion—to vacate the judgment." (Italics added.)
Neither of these motions, either separately or together as one, provides a basis on which to claim a sufficient extension of time under rule 8.108 for Turner's notice of appeal to have been timely.
1. Motion for a New Trial (§ 657 and Rule 8.108(b))
Courts have no inherent power to grant a new trial. (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166 ["The right to a new trial is purely statutory[.]"].) "As the motion for a new trial finds both its source and its limitations in the statutes . . . the procedural steps prescribed by law . . . are mandatory and must be strictly followed." (Mercer v. Perez (1968) 68 Cal.2d 104, 118, citation omitted.) The principal statutory authority is section 657, which provides in pertinent part that a "decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved" on one or more of seven specified grounds.
As potentially applicable here, a party like Turner who intends to move for a new trial must file and serve the required moving papers either: (1) "After the decision is rendered and before the entry of judgment"; or (2) "Within 15 days of the date of . . . service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest . . . ." (§ 659, subd. (a).) After the filing of the appropriate documents, the "judge thereupon shall designate the time for oral argument, if any, to be had on said motion," and the court clerk shall give notice. (§ 661.) The trial court loses its statutory power to rule on a new trial motion—and, in such event, the motion is denied by operation of law—if the court does not rule within 60 days of, as potentially applicable here, the earlier of any party's service of written notice of the filing of the judgment or, if no notice has been given, the filing of the first notice of intent to move for a new trial. (§ 660.) This 60-day time limit is " 'mandatory and jurisdictional,' " and any ruling thereafter " 'is in excess of the court's jurisdiction and void.' " (Van Beurden, supra, 15 Cal.4th at p. 64, italics added; see Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal.App.4th 1042, 1049 [order granting new trial on 61st day after entry of judgment reversed for lack of jurisdiction].)
Based on the procedures and limitations described in the immediately preceding paragraph, for at least two independent reasons, Turner's motion for a new trial did not extend the time to file a notice of appeal from the judgment under rule 8.108(b).
First, given the requirements of section 659, subdivision (a), Turner did not file a valid notice of intention to move for a new trial at any time. Initially, we observe that she filed a motion for a new trial, not a notice of intention to move for a new trial. Even if we were to construe Turner's motion to be a notice of intention, however, because it was premature, it was ineffective and, thus, not a valid notice. The earliest an aggrieved party may commence new trial proceedings under section 659, subdivision (a), is after "the decision is rendered," and where, as here, a statement of decision is neither required nor requested, there is no " 'decision' " for purposes of a new trial until "the 'signing and filing of the judgment.' " (In re Marriage of Hafferkamp (1998) 61 Cal.App.4th 789, 793.) Because Turner filed her motion three weeks before entry of the judgment, it was premature, and "[p]roceedings for a new trial taken prematurely are ineffective for any purpose . . . ." (Ruiz v. Ruiz (1980) 104 Cal.App.3d 374, 379; accord, Tabor v. Superior Court (1946) 28 Cal.2d 505, 507.) Without a valid notice of intention, therefore, rule 8.108(b) does not extend the time for filing a notice of appeal from the judgment beyond the normal 60 days under rule 8.104(a). (In re Marriage of Patscheck (1986) 180 Cal.App.3d 800, 802 [under former rule 3(a)].)
Second, because the probate court did not rule on Turner's motion within 60 days of either Turner's June 17 motion for new trial (which we would have to deem to have been a valid notice of intention to move for a new trial) or the Administrator's July 21 notice of filing of the judgment (see pt. III.A., ante), the motion was denied by operation of law on August 16 or September 19, respectively. (§ 660.) If rule 8.108 were to apply, the time to appeal from the judgment would have been extended 30 days from the denial of the motion for new trial (rule 8.108(b)(1)(B))—until September 15 or October 19, respectively. However, Turner did not notice the appeal until October 21, 2016, which is after the extended deadline under rule 8.108(b).
Turner argues that section 660's mandatory and jurisdictional 60-day limit does not apply to her motion, because the court set the hearing on her motion more than 60 days after she filed the motion, and the scheduling "is no fault of [Turner] as she cannot control the court's calendar." Turner is wrong; she, as the moving party is responsible for policing section 660's 60-day time limit: " 'It is the duty of the [moving] party to be present and see that his [or her] motion for a new trial is set for hearing within the statutory [time] period. If it has been inadvertently [set or] continued by the court to a date too late under the statute[,] the party should move the court to advance the matter on the calendar. When [the moving party] is guilty of lack of diligence in the prosecution and presentation of his [or her] motion[,] he [or she] cannot complain of the court's inadvertence.' " (Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 500.)
2. Motion to Set Aside the Judgment (§ 663 and Rule 8.108(c))
Following a court trial, section 663, subdivision 1 provides that an aggrieved party may seek to set aside a judgment and enter "another and different judgment" upon a sufficient showing of an "[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts . . . ."
Notably, a section 663 motion may be granted only upon a showing of an error in law that is based on uncontroverted evidence. (Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153.) Here, however, the facts on which Turner's motion is based are not uncontroverted. In such a situation, even though the relief under a section 657 motion for a new trial (retrial of the action) is entirely different from the relief under a section 663 motion to set aside the judgment (entry of a different judgment), the court may treat a section 663 motion to set aside a judgment as a section 657 motion for new trial. (See Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 727.) There is no point in doing so here, however, because in part III.B.1., ante, we already have concluded that, even if we were to deem Turner's motion a valid motion for a new trial, her appeal from the judgment is untimely.
The jurisdictional deadlines for a motion to set aside a judgment (§ 663)—both for the party's initiation of the proceedings and for the court's ruling on the motion—are the same as with a motion for a new trial (§ 657). Not surprisingly, therefore, the result is no different in applying rule 8.108(c)'s extension of time to appeal from a judgment following a motion to set aside a judgment.
As potentially applicable here, a party like Turner who intends to move to set aside a judgment must file and serve the notice of motion either: (1) "After the decision is rendered and before the entry of judgment"; or (2) "Within 15 days of the date of . . . service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest . . . ." (§ 663a, subd (a).) Likewise, the trial court loses its statutory power to rule on a set aside motion—and, in such event, the motion is denied by operation of law—if the court does not rule within 60 days of, as potentially applicable here, the earlier of: any party's service of written notice of the filing of the judgment or, if no notice has been given, the filing of the first notice of intent to move to set aside or vacate the judgment. (§ 663a, subd. (b).) Because "a trial court's failure to rule on a motion to vacate within section 663a, subdivision (b)'s time limit has the same legal effect as a trial court's failure to rule on a new trial motion within the time limit established by section 660," the 60-day time limit is jurisdictional, and any ruling thereafter is in excess of the court's jurisdiction and void. (Garibotti v. Hinkle (2015) 243 Cal.App.4th 470, 479.)
Based on the procedures and limitations described in the immediately preceding paragraph, for at least two independent reasons, Turner's motion to set aside the judgment did not extend the time to file a notice of appeal from the judgment under rule 8.108(c).
First, in violation of section 663a, subdivision (a), Turner did not file a valid motion to set aside the judgment, because the earliest an aggrieved party may commence set aside proceedings under that statute is after "the decision is rendered," yet she filed her motion three weeks before entry of judgment. Without a valid motion to set aside the judgment, therefore, rule 8.108(c) does not extend the time for filing a notice of appeal from the judgment beyond the normal 60 days under rule 8.104(a).
Second, because the probate court did not rule on Turner's motion within 60 days of either Turner's June 17 motion to set aside the judgment (which we would have to deem to have been a valid motion) or the Administrator's July 21 notice of filing of the judgment (see pt. III.A., ante), the motion was denied by operation of law on August 16 or September 19, respectively. (§ 663a, subd. (b).) If rule 8.108 were to apply, the time to appeal from the judgment would have been extended 90 days from the filing of the June 17 motion to set aside the judgment (rule 8.108(c)(2))—until September 15, 2016. However, Turner did not notice the appeal from the judgment until October 21, 2016, which is after the extended deadline under rule 8.108(c). C. The Administrator Did Not Establish an Entitlement to Sanctions
Turner filed her motion on June 17, 2016. Taking judicial notice of the calendar for the June 2016-August 2017 time period (Evid. Code, §§ 452, subd. (h), 459, subd. (a)(2); Douglas, supra, 43 Cal.App.3d at p. 936), we determine Thursday, September 15 to be 90 days after June 17.
The Administrator filed a motion for sanctions against Turner under section 907 and rule 8.276(a). The Administrator identifies five "substantive facts" which she contends give rise to an award of monetary sanctions. In her argument, she asks for sanctions on three grounds: filing and pursuing a frivolous appeal; including matters in the record not reasonably material to the issues on appeal; and unreasonable violations of the rules of court.
Section 907 provides in full: "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." Rule 8.276(a) provides in part: "On motion of a party or its own motion, a Court of Appeal may impose sanctions, including the award or denial of costs under rule 8.278, on a party or an attorney for: [¶] (1) Taking a frivolous appeal or appealing solely to cause delay; [¶] (2) Including in the record any matter not reasonably material to the appeal's determination; [¶] . . . ; or [¶] (4) Committing any other unreasonable violation of these rules."
With regard to the first ground for sanctions (frivolous appeal), in In re Marriage of Flaherty (1982) 31 Cal.3d 637, our Supreme Court provided substantive and procedural guidelines for determining the propriety of appellate sanctions. Sanctions may be imposed for a frivolous appeal upon a sufficient showing either (1) that the appeal was taken for an improper motive—i.e., to harass the respondent or to delay the effect of the judgment, or (2) that the appeal indisputably has no merit. (Id. at p. 650.) The first standard is tested subjectively; the focus is on the subjective good faith of the appellant with regard to harassing the respondent or delaying the effect of the judgment. (Id. at pp. 649-650.) The second standard is tested objectively; the inquiry is whether any reasonable attorney would agree the appeal is totally and completely without merit. (Ibid.) While each of the above standards provides independent authority for a sanctions award, the two may be used together "with one providing evidence of the other." (Id. at p. 649 [a total lack of merit of an appeal may be viewed as evidence that appellant intended it only for delay].)
We deny the Administrator's motion for sanctions on frivolousness, because Turner presented a colorable argument that the deadline for filing her notice of appeal was 180 days after entry of the judgment. (See pt. III.A., ante.) Indeed, we applied the normal 60-day time to appeal under rule 8.104(a)(1) only after determining the substantive issue whether section 1013a's requirement that the proof of service provide "the name . . . of the person making the service" was satisfied where the proof provided the signature, but not the identity, of the person making the service.
Moreover, there is no indication that Turner appealed from the judgment to harass the Administrator or to delay the effect of the judgment. During the May 27, 2016 closing argument on the issue of damages, Turner confirmed that she had no objection to the injunction against her that the court ordered at the May 19, 2016 hearing. As to damages, there is no indication that the appeal has caused any delay in satisfying the award of damages in the judgment.
With regard to violations of the rules of court, in particular including matters in the record not reasonably material to the issues on appeal, we agree with the Administrator: Turner violated the rules of court, and the record contains matters not reasonably material to the issue on appeal. However, we disagree that sanctions are warranted for the violations. Initially, the court has not been inconvenienced by these violations. With regard to the Administrator, other than the expense of obtaining a copy of the record, she has not suggested how or why she has been inconvenienced; yet the Administrator did not proceed in a cautious or financially conservative manner. The Administrator could have avoided the expense of purchasing a copy of the record by borrowing Turner's copy under rule 8.153. Alternatively, the Administrator could have waited until she received Turner's opening brief, seen how little of the record was arguably applicable (let alone necessary) and then, at that time, decided what portion of the record to purchase.
To the extent Turner's briefs do not contain accurate record references in support of factual assertions, we have disregarded the assertions. (Rybolt v. Riley (2018) 20 Cal.App.5th 864, 868 [appellate courts may " 'disregard any factual contention not supported by a proper citation to the record' "]; County of Riverside v. Workers' Compensation Appeals Board (2017) 10 Cal.App.5th 119, 124 [appellate courts " 'ignore' " factual statements without record references].) To the extent the record is unnecessarily voluminous, our processing of the appeal has not been unnecessarily disrupted.
DISPOSITION
The appeal is dismissed. The Administrator is entitled to costs on appeal. (Rule 8.278(a)(4).)
IRION, J. WE CONCUR: HALLER, Acting P. J. DATO, J.