Givan v. Givens CA1/1

Filed 8/30/23 Givan v. Givens CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
CLIFFORD GIVAN et al.,
Plaintiffs and Respondents, A166382
v. (Alameda County
DERMOT GIVENS, Super. Ct. No. 21CV001443)
Defendant and Appellant.
Defendant Dermot Givens filed a notice of appeal from an order
denying his motion to quash service of summons. After reviewing the briefs
and the record submitted to this court, we have concluded there is no
appealable order on which to base the appeal and an insufficient record on
which to predicate review by petition for writ of mandate. Accordingly, we
will dismiss the appeal.
I. BACKGROUND
Plaintiffs filed a first amended complaint against defendant, in his
individual capacity and as trustee of “The ‘Ruth’ Given/Ida Jackson
Revocable Living Trust,” alleging two causes of action for quiet title and
intentional misrepresentation. Plaintiffs claim Ida Jackson owned two
parcels of real property, and upon Jackson’s death, each should have received
one parcel. However, plaintiffs allege defendant filed a petition pursuant to
Probate Code section 172001 in Los Angeles County Superior Court,
presenting the court with “an updated ‘Trust’ with a fraudulent notary page.”
The petition was granted, but six months later, a motion to set aside void
order was granted. Plaintiffs further allege defendant took out loans on the
two parcels, in excess of $420,000. As a direct and proximate result of
defendant’s unlawful acts, the complaint asserts, plaintiffs have been
deprived of their ownership rights to their respective properties, their
properties are no longer free of lien, and they have incurred costs and fees to
bring this action.
From what we have been able to piece together from the record, a proof
of service of summons on defendant, as an individual, was filed on
February 18, 2022. Thereafter, pursuant to an order filed on March 23, 2022,
the trial court denied a motion for change of venue “filed by Dermot Givens
on 01/05/2022.” Defendant, on June 1, 2022, filed a motion to quash service
of complaint. The court denied the motion, concluding defendant made a
general appearance when he “filed a motion to transfer venue on January 5,
2022.” “Having previously submitted to the Court’s jurisdiction,” the court
concluded defendant “waived his right to claim jurisdictional defenses.”
II. ANALYSIS
Defendant contends the trial court erred in denying his motion to
quash service of summons because in its order, the trial court found Dermot
Givens, an individual defendant, had made a general appearance and
submitted to the jurisdiction of the court by filing the motion to transfer
venue.
1 Probate Code section 17200 allows a trustee or beneficiary of a trust
to “petition the court concerning the internal affairs of the trust or to
determine the existence of the trust.”
2
This was error, according to defendant, as the court “never
distinguished or identified whether Dermot Givens, Trustee or Dermot
Givens, an individual filed the motion to transfer venue on 1/5/22.” Without
citation to the record, defendant appears to argue he filed the motion for
change of venue only in his capacity of trustee, indicating “[t]he upper left
hand corner of the motion designated[] Dermot Givens, Trustee, as the party
that was filing the motion.” In addition, he asserts (1) the motion does not
mention nor seek any relief by him as an individual defendant; (2) the notice
of motion was signed by “ ‘Dermot Givens Attorney for Givan/Jackson
Trust,’ ” on behalf of the trustee; (3) the supporting declaration was
submitted by Dermot Givens, attorney for the trustee, and did not mention
an individual defendant; (4) the motion has one signature, that of Dermot
Givens; (5) the motion was verified by “ ‘Dermot Givens’ ” without any further
identification; (6) the “text identification on a signature line” identifying
Dermot Givens does not prove Dermot Givens, an individual, filed the
motion; and (7) only one filing fee was paid by “the filer of the motion to
change venue.” Since he never filed the motion for change of venue in his
individual capacity, defendant maintains, he never made a general
appearance as an individual, and as a result, rather than denying the motion,
the court should have held an evidentiary hearing on his motion to quash
service of summons.
“ ‘It is settled that the right of appeal is statutory and that a judgment
or order is not appealable unless expressly made so by statute.’ ” (People v.
Mazurette (2001) 24 Cal.4th 789, 792.) Further, “a reviewing court is
‘without jurisdiction to consider an appeal from a nonappealable order, and
has the duty to dismiss such an appeal upon its own motion.’ ” (In re
Mario C. (2004) 124 Cal.App.4th 1303, 1307.)
3
In their respondents’ brief, plaintiffs assert the denial of a motion to
quash service of process is not appealable. We agree.
Code of Civil Procedure section 904.1, subdivision (a)(3) authorizes, in
relevant part, appeals “[f]rom an order granting a motion to quash service of
summons.” (Italics added.) To obtain review of an order denying a motion to
quash service of summons, however, a defendant must file a petition for writ
of mandate. (Code Civ. Proc., § 418.10, subd. (c).)
Defendant did not file a petition for writ of mandate and has not
requested treatment of his appeal as such. We decline to treat defendant’s
appeal as a petition for writ of mandate.
In Olson v. Cory (1983) 35 Cal.3d 390, before engaging in its analysis of
whether the necessary circumstances were present to exercise its power to
treat the appeal at issue as a petition for writ of mandate, our Supreme Court
explained that the records and briefs before it “include[d] in substance the
elements necessary to a proceeding for writ of mandate.” (Id. at p. 401.) The
court continued its discussion by explaining, “Though we thus have power to
treat the purported appeal as a petition for writ of mandate, we should not
exercise that power except under unusual circumstances.” (Ibid.)
Here, unlike in Olson, the threshold requirement of an adequate record
for a proceeding for writ of mandate is unmet. In particular, the record does
not include all the documents “submitted to the trial court that are necessary
for a complete understanding of the case and the ruling under review.” (Cal.
Rules of Court, rule 8.486(b)(1)(C).) The record on appeal is notably devoid of
defendant’s motion for change of venue and plaintiffs’ opposition thereto.
Moreover, the argument portion of defendant’s brief contains no record
citations to these documents. These omissions are significant to our review
because the trial court determined defendant made a general appearance
when he filed his motion for change of venue. Although defendant maintains
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he filed the motion in his capacity as trustee and not in his individual
capacity, the record is insufficient to evaluate defendant’s claim that he did
not make a general appearance, which would have required the court to rule
on the substance of his motion to quash service of summons.
Accordingly, because the record is insufficient, we decline to treat this
nonappealable order as a petition for writ of mandate.2
III. DISPOSITION
The appeal is dismissed. The parties shall bear their own costs on
appeal.
2 We express no opinion regarding the timeliness of filing a petition for
writ of mandate.
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MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BOWEN, J.*
A166382
Givan v. Givens

Judge of the Contra Costa County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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