Katzenstein v. Chabad of Poway , 188 Cal. Rptr. 3d 461 ( 2015 )

Filed 6/15/15
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BONNIE KATZENSTEIN, as Trustee, etc., D066340
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2013-00034698-
PR-TR-CTL)
CHABAD OF POWAY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Julia C.
Kelety, Judge. Appeal dismissed.
Blumenthal, Nordrehaug & Bhowmik, Norman B. Blumenthal and Kyle R.
Nordrehaug for Defendant and Appellant.
Hughes & Pizzuto, Shannon N. Montisano and Anne M. Rudolph for Plaintiff and
Respondent.
Respondent Bonnie Katzenstein (Trustee), in her capacity as trustee of the
Feinberg Family Trust Agreement dated October 30, 1984, as amended (Trust), filed a
petition in probate court (Petition) following the death of Robert Feinberg (Decedent).
Decedent was the cosettlor and former cotrustee of the Trust and the named insured in
two life insurance policies. In the Petition, Trustee sought: (1) a determination that the
Trust is the beneficiary of, and therefore entitled to the proceeds from, one of the
insurance policies; and (2) damages against Chabad of Poway (Chabad) for interfering
with the payment of that policy's benefits to the Trust. Chabad responded to the Petition
by filing a document entitled "Claimant's Objection and Counter Claim [sic] to Petition
filed by Trustee to Determine Ownership of Life Insurance Policy Proceeds" (Objection
and Counterclaim).
In an unsigned minute order following summary judgment proceedings initiated
by Trustee, the court sua sponte struck Chabad's Objection and Counterclaim on the basis
that the Code of Civil Procedure precludes a party from seeking affirmative relief in an
answer. Chabad appeals. However, because this unsigned minute order is not an
appealable order under either the Code of Civil Procedure or the Probate Code, we lack
jurisdiction and will dismiss Chabad's appeal.
I.
BACKGROUND FACTS AND PROCEDURE1
According to the Petition, in 1984 Decedent and his wife executed the documents
that established the Trust, and they amended it in 1999 and 2004. Decedent, whose wife
1 Because of the disposition of this appeal, our recitation of the facts will be limited
and based in part on allegations in the Petition and the Objection and Counterclaim (both
of which are verified), as opposed to evidence in support of or in opposition to Trustee's
motion for summary judgment described in the text post.
2
had predeceased him, died in August 2012. Upon the death of Decedent, according to the
terms of the Trust, Trustee became the sole successor trustee and has remained the sole
successor trustee ever since. Trustee alleged that in 1984 Decedent purchased Genworth
Life Insurance Company policy No. 00084978 (Genworth policy) and that at all times the
Trust was the named beneficiary of the Genworth policy. Trustee sought both a
declaration that the Genworth policy benefits belong to the Trust and an award of
damages against Chabad for interfering with the payment of the Genworth policy benefits
to the Trust as the named insured. (Prob. Code, §§ 850, subd. (a)(3)(A), 17200, 859.)2
In the Objection and Counterclaim, Chabad alleged it is a nonprofit organization
that includes at least a Jewish synagogue and a senior center.3 Chabad contended that
Decedent gave it "an irrevocable pledge" of the death benefits in two life insurance
policies — the Genworth policy and Sun Life Financial Life Insurance policy
No. 0004097490 (together the Policies) — in exchange for renaming the senior center the
" 'Robert Feinberg Sunshine Club' to be operated [by Chabad] after [Decedent's] death by
2 Probate Code section 850, subdivision (a)(3)(A) allows a trustee to file a petition
requesting an order where the trustee holds property "claimed to belong to another."
Probate Code section 17200 allows a trustee to file a petition "concerning the internal
affairs of the trust," which include instructing the trustee. (Id., subds. (a), (b)(6).)
Probate Code section 859 allows the court, upon a showing "that a person has in bad faith
wrongfully taken, concealed, or disposed of [trust] property," to award damages against
the person "for twice the value of the property recovered" in the action and reasonable
attorney fees and costs.
3 A Chabad member responsible for creating a Web site for the senior center
described the center as a place that "provides seniors in North County a place to enjoy
warm, nourishing meals as well as friendship with other seniors and congregation
members."
3
use of the [P]olicies' death benefits."4 To this end, according to the Objection and
Counterclaim, Chabad renamed the senior center and publicized Decedent's name in
connection with receiving the pledge.5 In addition to alleging facts which Chabad
contends required the court to deny the relief Trustee seeks in the Petition, Chabad's
Objection and Counterclaim also contained affirmative claims for relief against Trustee
based on unjust enrichment and breach of contract.
In a response to Chabad's Objection and Counterclaim, Trustee denied the material
allegations and affirmatively asserted that any document signed by Decedent purporting
to gift the Genworth policy benefits to Chabad was unenforceable because "the signature
was obtained by fraud, duress, undue influence or when [Decedent] lacked the capacity to
sign such documents."
Following discovery, Trustee brought a motion for summary judgment or in the
alternative "for summary adjudication of the issue of whether the [Genworth policy's] life
insurance proceeds are the property of the [Trust]." Chabad opposed the motion, and
Trustee filed a reply.
4 Actually, at one place Chabad alleged that Decedent made "an irrevocable pledge"
of the Policies' benefits, whereas elsewhere Chabad alleged that Decedent made "an
irrevocable promise" to Chabad for the Policies' benefits "or the equivalent sum."
5 In the summary judgment proceedings, discussed in the text post, Trustee
presented evidence in support of the argument that Chabad renamed the senior center in
consideration of a $120,000 payment, in or around May 2003, that Robert made to
Chabad prior to his death.
4
The court issued a lengthy (five-page single-spaced) tentative ruling: (1) denying
summary judgment on the basis that the motion did not mention Trustee's claim for
damages under Probate Code section 859; (2) granting summary adjudication on the basis
that, because the Genworth policy designated the Trust as the sole beneficiary, there were
no triable issues of material fact as to Trustee's claim that the Genworth policy benefits
were property of the Trust; and (3) sua sponte striking the Objection and Counterclaim on
the basis that, in responding to the Petition, Chabad was statutorily precluded from
seeking affirmative relief (i.e., the claims against Trustee based on unjust enrichment and
breach of contract). In this latter regard (striking the Objection and Counterclaim — the
only ruling at issue in this appeal), the court relied on Code of Civil Procedure6 sections
436, subdivision (b), and 431.30, subdivision (c), and applied them to the underlying
proceeding according to Probate Code section 1000.7
The court entertained oral argument, during which most of the exchange
concerned the tentative striking of Chabad's Objection and Counterclaim.8 In part, the
6 All further statutory reference are to the Code of Civil Procedure unless otherwise
specified.
7 "The court may . . . at any time in its discretion, and upon terms it deems proper:
[¶] . . . [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity
with the laws of this state . . . ." (§ 436, subd. (b).) "Affirmative relief may not be
claimed in the answer." (§ 431.30, subd. (c).) "Except to the extent that [the Probate
C]ode provides applicable rules, the rules of practice applicable to civil actions . . . apply
to, and constitute the rules of practice in, proceedings under this code." (Prob. Code,
§ 1000.)
8 The court also received clarification regarding the Policies' benefits. According to
counsel, the proceeds from the Sun Life Financial policy had already been paid to the
5
court described to Chabad's counsel (who stated that he was representing Chabad on a
pro bono basis) some of the differences between the procedures in the Code of Civil
Procedure and the Probate Code, explaining that claims in probate "need[] to be
presented properly." At the conclusion of the hearing, the court confirmed its tentative
ruling, explained in detail the bases of its rulings and filed an unsigned minute order (the
Order) consistent with the tentative ruling, namely, (1) denying Trustee's motion for
summary judgment, because the motion did not deal with Trustee's pending claim for
damages; (2) granting Trustee's motion for summary adjudication, because the
beneficiary statement in the Genworth policy named the Trust; and (3) sua sponte striking
Chabad's Objection and Counterclaim, because it improperly asserted claims for
affirmative relief in the response to the Petition.
Trustee gave written notice of entry of the Order, and Chabad timely appealed
from the Order.
Prior to briefing, Trustee filed a motion to dismiss the appeal on the basis that an
order granting summary adjudication is a nonappealable order. More specifically,
Trustee argued that, because the Order did not dispose of the entire matter — e.g.,
Trustee still had pending a claim for damages against Chabad in the Petition — the Order
was interlocutory, and we lacked jurisdiction to hear the appeal. Chabad opposed the
Trust according to the beneficiary designation, and the parties agreed that Genworth
could pay the proceeds from the Genworth policy to the trust account of one of the
attorneys. Once again, in the Petition, Trustee sought relief related only to the Genworth
policy, whereas in the Objection and Counterclaim, Chabad sought relief related to both
Policies.
6
motion on two grounds: (1) because the Order "effectively disposed of the entire case," it
was "final and appealable" under section 904.1, subdivision (a)(1); and (2) because the
Order adjudicated and denied payment of Chabad's claim, it was appealable under
Probate Code section 1300 and, thus, section 904.1, subdivision (a)(10). At the time, we
deferred the motion until the merits briefing could be completed, directed the parties'
attention to subdivision (d) of Probate Code section 1300 (which makes appealable an
order "[d]irecting or allowing payment of a debt, claim, or cost") and requested the
parties "to address in their respective appellate briefing whether the [Order] directed or
allowed the payment of a claim." The parties have discussed the applicability of Probate
Code section 1300, subdivision (d) in their merits briefs, and not surprisingly they
disagree: Chabad argues the Order is appealable under the statute, and Trustee argues it
is not.9
Meanwhile, following briefing, on different jurisdictional grounds, we became
concerned because the record on appeal does not contain a judgment or signed order of
dismissal, only an unsigned minute order. Accordingly, we directed the parties to
section 581d10 — which requires that an order of dismissal be in writing, signed by the
court and filed in the action — and asked them to provide supplemental letter briefs
9 Because we dismiss the appeal on other grounds, Trustee's motion is moot, and we
deny it on that basis.
10 Section 581d provides in relevant part: "All dismissals ordered by the court shall
be in the form of a written order signed by the court and filed in the action and those
orders when so filed shall constitute judgments and be effective for all purposes . . . ."
(Italics added.)
7
addressing the issue whether, in the context of this appeal, an unsigned minute order is an
appealable order for purposes of appellate jurisdiction. (Gov. Code, § 68081.) We have
received and considered the parties' letter briefs.11
II.
BECAUSE AN UNSIGNED MINUTE ORDER IS NOT APPEALABLE,
WE LACK JURISDICTION AND MUST DISMISS THE APPEAL
A. Introduction
Appellate courts have jurisdiction over a direct appeal, like the present one, only
where there is an appealable order or judgment. (Griset v. Fair Political Practices Com.
(2001) 25 Cal. 4th 688, 696 (Griset); Jennings v. Marralle (1994) 8 Cal. 4th 121, 126
(Jennings) [an appealable order or judgment "is a jurisdictional prerequisite to an
appeal"].) "A trial court's order is appealable when it is made so by statute." (Griset, at
p. 696; see Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal. 4th 1, 5
["right to appeal is wholly statutory," citing § 904.1].)
As we noted ante, except to the extent that the Probate Code provides applicable
rules, "the rules of practice applicable to civil actions . . . apply to, and constitute the
rules of practice in, proceedings under th[e Probate C]ode." (Prob. Code, § 1000.) Given
this background, we begin with the understanding that, in a civil action not under the
Probate Code, an order striking an answer and counterclaim is not an appealable order.
11 We have not considered the statement in Chabad's letter regarding court
proceedings in June 2015 or the statement in and attachment to Trustee's letter
concerning court proceedings in May 2015. (See In re Zeth S. (2003) 31 Cal. 4th 396,
407-410, 413 [improper for Court of Appeal to look to postjudgment evidence outside of
record on appeal and not considered by trial court].)
8
(Hill v. Wrather (1958) 158 Cal. App. 2d 818, 820-821 [order striking affirmative defenses
and counterclaim]; Yandell v. City of Los Angeles (1931) 214 Cal. 234, 235 [order
striking cross-complaint, but recognizing same rule for order striking counterclaim];
Keenan v. Dean (1955) 134 Cal. App. 2d 189, 191 [order striking counterclaim];
Merchants Nat. Bank v. Clark-Parker Co. (1929) 97 Cal. App. 757 [order striking
counterclaim without leave to amend]; Hayward Union High School Dist. v. Madrid
(1965) 234 Cal. App. 2d 100, 106 [order striking answer and cross-complaint].) That is
because, in a civil action not under the Probate Code, where an action contains both a
complaint and a counterclaim (or cross-complaint) involving the identical parties, both
must be resolved before there is a final appealable judgment. (ECC Construction, Inc. v.
Oak Park Calabasas Homeowners Assn. (2004) 122 Cal. App. 4th 994, 1002 [complaint
and cross-complaint]; Hill, at p. 820 [complaint and counterclaim].) Our focus now
becomes whether the result is different in an action brought under the Probate Code.
B. Probate Code Section 1300, Subdivision (d)
At our request, the parties briefed whether Probate Code section 1300,
subdivision (d) provides the statutory basis on which we have jurisdiction — namely,
whether the Order directed or allowed payment of a claim.12
Chabad argues that the "legal effect" of the Order — which in part granted
summary adjudication (by which Trustee is entitled to the Genworth policy benefits) and
12 "In all proceedings governed by this code, an appeal may be taken from the
making of, or the refusal to make, any of the following orders: [¶] . . . [¶] (d) Directing
or allowing payment of a debt, claim, or cost." (Prob. Code, § 1300, subd. (d).)
9
in part struck the Objection and Counterclaim — adjudicated the merits of both Trustee's
Petition and Chabad's Objection and Counterclaim. (Without citing Prob. Code, § 1300,
subd. (d), Chabad made the same argument in opposition to Trustee's motion to dismiss.)
We agree with Chabad that "the appealability of an order of the probate court is
determined not from its form, but from its legal effect." (Estate of Martin (1999) 72
Cal. App. 4th 1438, 1442.) However, Chabad raises no argument on appeal with respect to
the grant of summary adjudication; and contrary to Chabad's argument, we do not agree
that the legal effect of striking the Objection and Counterclaim was to adjudicate either
Trustee's Petition or Chabad's affirmative claims. Any adjudication of Trustee's Petition
was based on Trustee's motion for and Chabad's opposition to summary adjudication; and
given the court's explanation of its ruling striking Trustee's Objection and Counterclaim
(discussed in the next paragraph), there was no adjudication of Chabad's claims against
Trustee.
Trustee, in contrast, argues that the statute does not apply, because that part of the
Order on appeal — i.e., the striking of Chabad's Objection and Counterclaim — did not
direct or allow payment of any claim. An exchange between Chabad's counsel and the
court at the hearing supports Trustee's position. When Chabad's counsel summarized the
court's sua sponte ruling as "dismissing the cause of action for breach of contract and
unjust enrichment," the court corrected counsel, explaining, "Well, not so much
dismissing but just saying it needs to be presented properly." Minutes later, when
counsel for Chabad suggested that, instead of the Objection and Counterclaim, Chabad
could have filed an "objection" to the Petition and a separate "petition seeking the relief
10
for unjust enrichment and breach of contract" against Trustee, the court indicated "at least
procedural[ly] it would be presented correctly."
Rather than attempting to present its claim "properly" or "correctly," however,
Chabad appealed the ruling striking the Objection and Counterclaim. Because that ruling
did not dismiss any claim by Chabad, it cannot be considered a refusal to direct or allow a
payment to Chabad for purposes of the statutory grant of appellate jurisdiction under
Probate Code section 1300, subdivision (d). Even if we assume that the grant of
summary adjudication "[d]irect[ed] or allow[ed] payment of a . . . claim" to Trustee on
her Petition sufficient to confer appellate jurisdiction under Probate Code section 1300,
subdivision (d), Chabad does not challenge the summary adjudication ruling that Trustee
is entitled to the Genworth policy benefits. The only error asserted by Chabad in this
appeal is the striking of the Objection and Counterclaim without leave to amend.
In any event, we will assume without deciding that the sua sponte ruling was a
refusal to direct or allow a payment to Chabad and, therefore, that Probate Code
section 1300, subdivision (d) provides the statutory basis for appellate jurisdiction to
review the ruling. We will next consider whether, assuming statutory jurisdiction for the
appeal, the Order — an unsigned minute order striking a pleading — is an appealable
order.
C. Section 581d
The parties have not directed us to, and our research has not disclosed, any
provision in the Probate Code that arguably applies either to striking pleadings or to
appealing from unsigned minute orders. Accordingly, "the rules of practice applicable to
11
civil actions . . . apply to, and constitute the rules of practice in" the underlying
proceedings here that resulted in the striking of Chabad's Objection and Counterclaim
and in the entry of the Order and, consequently, in our handling of these issues on appeal.
(Prob. Code, § 1000.) In this latter regard, the Law Revision Commission comments to
Probate Code section 1000 expressly provide that, unless the Probate Code provides
otherwise, "the general rules of practice apply to . . . appeals, and other matters of
procedure." (Cal. Law Revision Com. com., 52 West's Ann. Prob. Code (2002 ed.) foll.
§ 1000, p. 459, italics added.)
As part of these general rules of practice, therefore, since orders striking answers,
counterclaims and cross-complaints are not appealable orders in non-probate civil appeals
(see cases cited in part II.A., ante), we have no difficulty concluding that an order
striking an objection and counterclaim to a petition in probate is not an appealable order
either.
Likewise, as part of these general rules of practice, for a "dismissal" to "constitute
[a] judgment[] and be effective for all purposes" — including the right to appeal — it
"shall be in the form of a written order signed by the court and filed in the action."
(§ 581d, italics added.) Indeed, in the parties' letter briefs, Chabad and Trustee agree that
section 581d is applicable to the Order here, and we so conclude.13 Thus, "[a]n order
13 We find further support for our conclusion that section 581d applies in probate
proceedings, knowing that "section 581 . . . , providing for dismissals, is applicable to
will contests" (Voyce v. Superior Court (1942) 20 Cal. 2d 479, 484), and former
section 583, which also provided for dismissals, applies in probate (Estate of Morrison
(1932) 125 Cal. App. 504, 509).
12
that is not signed by the trial court does not qualify as a judgment of dismissal under
section 581d." (Powell v. County of Orange (2011) 197 Cal. App. 4th 1573, 1578
[unsigned minute order of dismissal for failure to prosecute under §§ 581, subd. (b)(4) &
583.410].) This has been the law for more than a half century. (Powell, at p. 1578
[" 'prior to 1963, under section 581d a dismissal in the form of a[n unsigned] minute
order was proper' ".)14
For these reasons, the Order here — striking the Objection and Counterclaim, but
not dismissing anything — is not appealable. Absent a basis for exercising jurisdiction,
we have no choice but to dismiss the appeal. (Cole v. Rush (1953) 40 Cal. 2d 178
[dismissal of appeal from order sustaining demurrer without leave to amend]; Art
Movers, Inc. v. Ni West, Inc. (1992) 3 Cal. App. 4th 640, 645 (Art Movers) [appellate court
"must dismiss an appeal from a nonappealable order" (italics added)].)
In an attempt to create jurisdiction, in its letter brief Chabad suggests a number of
alternatives. None is persuasive.
First, Chabad suggests that the Order "substantially compl[ies] with [section ]581d
in light of the widespread electronic filing now available in courts." We disagree.
Without the required signature, there is no compliance. Further, electronic filings may
14 The Order concludes in part as follows: "The minutes constitute the order of the
court and no formal order is required." At oral argument, counsel for Chabad suggested
that this statement excused the requirement of section 581d that, to be an appealable
order, the Order here had to be signed. We disagree. We are unaware of any authority,
and counsel has not directed us to any, that allows a trial court to abrogate section 581d's
requirements that, for a dismissal to be effective as an appealable order, the dismissal
must be (1) written, (2) signed by the court and (3) filed in the action.
13
contain electronic signatures. In any event, there is no indication that the Order here was
electronically filed.
Second, we decline Chabad's invitation that we "order the trial court to sign the
Order nunc pro tunc as of June 30, 2014" (the date of the hearing and court's minutes).
Chabad tells us that the trial court "[c]learly" intended the Order to be a section 581d
order of dismissal, because the court granted summary judgment. To the contrary, there
is no indication, either in the reporter's transcript or the Order, that the court intended to
dismiss anything. Indeed, the court denied summary judgment, granting only summary
adjudication; and an order granting summary adjudication is not an appealable order.
(Jennings, supra, 8 Cal.4th at p. 126.) Finally, although Chabad cites us to four opinions
in which the appellate courts directed the trial courts to enter a judgment nunc pro tunc to
the date of a nonappealable order, in each the nonappealable order left nothing for the
trial court to do.15 In contrast, here, the Order left in place Trustee's claim for money
15 In Palazzi v. Air Cargo Terminals, Inc. (1966) 244 Cal. App. 2d 190, 192, the
plaintiff appealed from a judgment on a jury verdict, but one of the causes of action had
been disposed of by a nonsuit without a signed order of dismissal. In Dye v. Caterpillar
(2011) 195 Cal. App. 4th 1366, 1373, footnote 7, and Donohue v. State of California
(1986) 178 Cal. App. 3d 795, 800, the plaintiff appealed from an order granting the
defendant's motion for judgment on the pleadings. In Dominguez v. City of Alhambra
(1981) 118 Cal. App. 3d 237, 242, and footnote 1, the plaintiff appealed from an order
sustaining the defendants' demurrer to all causes of action between that plaintiff and the
demurring defendants.
Chabad also refers us to both Norton v. City of Pomona (1935) 5 Cal. 2d 54 and
Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997)
52 Cal. App. 4th 867, but in these cases there was no issue about an appellate court
ordering entry of an appealable order or judgment nunc pro tunc to a certain date in order
to obtain appellate jurisdiction. In Norton, the trial court ordered entry of judgment nunc
pro tunc to the date of the order for judgment, and the Supreme Court merely confirmed
14
damages against Chabad, and at the hearing the court suggested to Chabad that there may
be a proper procedure to both object to the Petition and to assert claims against Trustee.
Third, citing Olson v. Cory (1983) 35 Cal. 3d 390 (Olson), Chabad asks that we
exercise our discretion to treat its notice of appeal as a petition for writ of mandate and
proceed with the briefing that has been filed. In Olson, our high court treated an appeal
from a nonappealable order as if it were a writ proceeding, because "the record
sufficiently demonstrates the lack of adequate remedy at law necessary for issuance of
the writ."16 (Olson, at p. 401.) Chabad has not attempted to make such a showing. Nor
could it on the record here, where Chabad has asserted only claims for money damages,
has not argued the inability to appeal from a final judgment on the Petition and has not
attempted to submit procedurally proper pleadings to the trial court in the first instance.
Moreover, because "[t]he interests of clients, counsel, and the courts are best served by
that the trial court's " 'power to enter judgments nunc pro tunc is inherent.' " (Norton, at
pp. 61-62.) In Bed, Bath & Beyond, the trial court entered a written order granting
summary adjudication after entering the final judgment — i.e., a statutorily appealable
document — and on appeal we deemed the written order to be filed nunc pro tunc to the
date of the ruling on the summary adjudication motion, because that was the request that
preceded entry of the order in the trial court, not because the order had to be filed in order
to preserve appellate jurisdiction. (Bed, Bath & Beyond, at pp. 883-884 & fn. 11.)
16 In particular, all other substantive issues had been resolved, so that dismissal of
the appeal on the sole remaining issue would have resulted in unnecessary delay in the
final disposition of the litigation. (Olson, supra, 35 Cal.3d at p. 401.) The Supreme
Court later acknowledged "the unusual circumstances that the [Olson] case presented"
(Morehart v. County of Santa Barbara (1994) 7 Cal. 4th 725, 744), and we agree that a
request to treat an appeal from a nonappealable order as a writ petition " 'should only be
granted under [the most] extraordinary circumstances' " (Wells Properties v. Popkin
(1992) 9 Cal. App. 4th 1053, 1055). As we explain in the text post, Chabad has not shown
that the circumstances here are either unusual or extraordinary.
15
maintaining, to the extent possible, bright-line rules which distinguish between
appealable and nonappealable orders[,]" we respect the "[s]trong policy reasons" that
underlie the one final judgment rule.17 (Mid-Wilshire Associates v. O'Leary (1992) 7
Cal. App. 4th 1450, 1455.) Accordingly, we decline to exercise our discretion to treat
Chabad's appeal as a writ proceeding.
Finally, Chabad tells us that, regardless of section 581d's requirement that an order
of dismissal be in writing and signed by the court in order to be appealable, "[a]ppellate
jurisdiction . . . [may] be independently based on Probate Code [section] 1300." In
making this argument, Chabad confuses two independent mandatory requirements for
appellate jurisdiction: There must be both (1) a statute that allows for an appeal (Griset,
supra, 25 Cal.4th at p. 696), and (2) an appealable order (Jennings, supra, 8 Cal.4th at
p. 126). For purposes of this appeal, we have assumed that Probate Code section 1300,
subdivision (d) provides the statutory basis that allows for an appeal. (Pt. II.B., ante.)
Given section 581d's requirements, however, there is no appealable order.
Accordingly, because the Order — an unsigned minute order — is not appealable,
we lack jurisdiction to consider Chabad's appeal and must dismiss it on this basis.
17 These policies are based on the premise that "piecemeal disposition and multiple
appeals tend to be oppressive and costly": e.g., rather than ending litigation, interlocutory
appeals tend to result in a multiplicity of appeals; early resort to the appellate court may
produce uncertainty, or at a minimum delay and potential futility, in the trial court; the
trial court may change a ruling or make a different ruling that obviates an interlocutory
appeal; later actions by the trial court provide a more complete record that may affect the
appearance of earlier error or establish its harmlessness; and a full adjudication by the
trial court will assist the reviewing court to remedy existing error by allowing for more
specific directions on remand. (Kinoshita v. Horio (1986) 186 Cal. App. 3d 959, 966.)
16
(Jennings, supra, 8 Cal.4th at p. 126 [reviewing court must raise jurisdictional issue on its
own whenever a doubt exists as to whether appeal is taken from a final judgment or
appealable order]; Art Movers, supra, 3 Cal.App.4th at p. 645 ["the court, on its own
motion, must dismiss an appeal from a nonappealable order".)
DISPOSITION
The appeal is dismissed. Trustee is entitled to recover her costs on appeal from
Chabad. (Cal. Rules of Court, rule 8.278(a)(2).)
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
MCINTYRE, J.
17