Georgianna v. Superior Court CA4/3

Filed 11/10/26 Georgianna v. Superior Court CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE SIBYLLE GEORGIANNA, Petitioner, G066573 v. (Super. Ct. No. 25D004748) THE SUPERIOR COURT OF OPINION ORANGE COUNTY; Respondent; THOMAS DAVID GEORGIANNA III, Real Party in Interest. Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Stephen T. Hicklin, Judge. Petition denied. Motion to lodge exhibits. Denied. Sibylle Georgianna, in pro. per., for Petitioner. Thomas David Georgianna III, in pro. per., for Real Party in Interest.  Sibylle Georgianna filed a notice of appeal after the trial court granted Thomas David Georgianna III’s motion to vacate dismissal of the marital dissolution petition he initiated.1 The dismissal was ministerially entered by the superior court clerk pursuant to a request for dismissal without prejudice purportedly signed by both Thomas and Sibylle. Evidence provided to the court in conjunction with Thomas’s motion to vacate indicated that, unbeknownst to Thomas, Sibylle signed her own and Thomas’s signature on the dismissal request, with the latter allegedly being done pursuant to a power of attorney given to her by Thomas roughly seven months before he filed the dissolution petition. Sibylle contends the court abused its discretion in granting Thomas’s motion. Although we find the order from which Sibylle appeals is not appealable, we exercise our discretion to treat the matter as a petition for writ of mandate. On the merits, we find no error and deny the petition. FACTS In July 2025, Thomas filed a marital dissolution petition (the petition) which was accompanied by a child custody declaration, and he served both on Sibylle. A couple months later, in mid-September, Sibylle filed a response to the petition and a child custody declaration. Both Sibylle and Thomas were self-represented at all relevant times. Five days after Sibylle filed her response to the petition, Sibylle filed a request for dismissal of the action without prejudice. The request indicated that both Sibylle and Thomas consented to the dismissal, with both of their names printed on the document and signature lines completed. The court clerk entered the requested dismissal the same day. 1 Because the parties have the same last name, we refer to them by first name. No disrespect is intended. 2  A little more than one week later, Thomas filed a motion to vacate the dismissal due to surprise and extrinsic fraud. In an attached declaration, Thomas explained that the signature on the dismissal request was not his and Sibylle forged his signature without his knowledge or consent. Because he was not served with the dismissal request or “any related documents,” he said he did not learn of the dismissal until he attempted to file a document a few days earlier. Sibylle filed a response indicating she did not consent to vacating the dismissal. Aside from arguments that Thomas had “[n]o [r]easonable [p]robability of . . . [p]revail[ing] in [d]issolving [their] [m]arriage,” Sibylle said the dismissal should not be set aside because she signed the dismissal request under a power of attorney granted to her by Thomas on two different occasions in December 2024.2 At the hearing on Thomas’s motion, the court inquired of both parties. They confirmed the court’s understanding that (1) Thomas believed vacating the dismissal was appropriate because he did not sign the dismissal request and sought to vacate the dismissal within a few days after discovering dismissal had been requested and entered, and (2) Sibylle believed the dismissal should stand because she signed the dismissal request using a power of attorney granted to her by Thomas. In response to a court 2 A declaration filed by Sibylle in conjunction with her response to Thomas’s motion references the two grants of power of attorney and cites alleged exhibits to the declaration. However, the roughly 80 exhibits cited in the declaration are not in the record on appeal, and the trial court indicated there were no lodged exhibits at the time the appellate record was prepared. Six days before oral argument, Sibylle filed a “Motion and Application for Permission to Transmit and Lodge Exhibits.” It does not appear that the documents which she refers to as “exhibits” were received by the trial court or admitted as evidence. In any event, we deny the request as untimely. 3 question, Sibylle said she did not serve the dismissal request on Thomas because her understanding was that it did not need to be served and she relied on Thomas checking the court docket. After hearing from the parties, the court granted Thomas’s motion, ordering that the dismissal be vacated. Sibylle filed a notice of appeal from the order. DISCUSSION Sibylle challenges the trial court’s grant of Thomas’s motion to vacate the petition’s dismissal on three grounds. First, she contends the court “applied the wrong legal test” because it focused “on response and service rules applicable only in ongoing litigation.” Second, she argues there is insufficient evidence to support a finding of extrinsic fraud. Third, she asserts the court denied her due process by failing to give her a meaningful opportunity to be heard at the hearing on Thomas’s motion. For reasons we explain, we treat the purported appeal as a petition for writ of mandate and conclude the court did not err. I. APPEALABILITY This court requested supplemental briefing from the parties concerning whether the order appealed from is an appealable order, and if not, whether this court should exercise its discretion to treat the appeal as a petition for a writ of mandate. We conclude, as conceded by Sibylle, that the relevant order is not appealable. Both parties request that we nevertheless exercise our discretion to treat the appeal as a writ petition, and we do so. “‘“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.” [Citation.]’ [Citations.] ‘The primary statutory basis for appealability in civil 4 matters is limited to the judgments and orders described in section 904.1 of the Code of Civil Procedure.’” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1365 (H.D. Arnaiz).) “‘Ordinarily, a plaintiff’s voluntary dismissal is deemed to be nonappealable on the theory that dismissal of the action is a ministerial action of the clerk, not a judicial act.’” [Citation.] Reasoning from this axiom, courts have also held that a ruling on a motion to vacate a voluntary dismissal is not appealable. [Citations.] This is because section 904.1 authorizes appeals from final judgments [citation] and from orders ‘made after a judgment made appealable by paragraph (1)’ [citations]. With only a voluntary dismissal rather than an appealable final judgment preceding it, an order ruling on a motion to vacate a voluntary dismissal is not made after an appealable judgment and is therefore not appealable itself.” (Mesa Shopping Center-East, LLC v. O Hill (2014) 232 Cal.App.4th 890, 897–898; accord H.D. Arnaiz, supra, 96 Cal.App.4th at p. 1366.) Here, the dismissal Thomas sought to vacate was a voluntary dismissal. Accordingly, the ruling on the motion to vacate was not made after an appealable judgment and is therefore not appealable itself. Although subdivision (a)(10) of Code of Civil Procedure section 904.1 specifies that an appeal may be taken “[f]rom an order made appealable by . . . the Family Code,” the parties do not point us to any provision of the Family Code that makes the challenged order appealable, and we have found none. Nevertheless, we exercise our discretion to construe the purported appeal as a writ petition. (H.D. Arnaiz, supra, 96 Cal.App.4th at pp. 1366–1367 [“appellate court has discretion to treat a purported appeal from nonappealable order as petition for writ of mandate”].) Adjudicating the 5 merits of Sibylle’s arguments may conserve resources by obviating the need for unnecessarily dilatory and circuitous proceedings. (See id. at p. 1367.) II. THE TRIAL COURT DID NOT ERR IN GRANTING THE MOTION TO VACATE DISMISSAL A. Applicable Law Code of Civil Procedure section 473, subdivision (b), provides for both discretionary and mandatory relief from a dismissal. “The general underlying purpose of section 473(b) is to promote the determination of actions on their merits.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839 (Even Zohar).) Relevant here, the discretionary portion is “broad in scope: ‘The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.’” (Even Zohar, supra, 61 Cal.4th at p. 838.) “Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).) “‘A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse.’” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) B. Analysis Sibylle first argues the trial court applied the incorrect legal standard in determining whether to grant Thomas’s motion. However, she hinges this argument on the mistaken premise that the “court’s ruling turned almost entirely on its belief that [she] failed to serve [Thomas] with [her 6 response to the petition] and [her child custody declaration].” The court’s questioning at the hearing regarding the motion concerned whether Sibylle served the request for dismissal on Thomas. She responded she had not done so, which was consistent with Thomas’s claim that he did not become aware of the dismissal until a few days before he filed his vacatur motion. Implicit in this and other questioning at the hearing is that the court applied the correct legal standard for assessing Thomas’s motion, as the court’s focus was on surprise and whether Thomas promptly applied for relief after discovering the dismissal. Similarly, Sibylle’s second argument is based on a misreading of the record. She contends there is insufficient evidence to support a finding of extrinsic fraud. Although Thomas’s motion was captioned as seeking relief due to “[s]urprise and [e]xtrinsic [f]raud,” the record makes clear the former was the basis on which the court granted the motion.3 Indeed, all the questioning at the hearing which preceded the trial court’s oral ruling focused on whether and when Thomas became aware of the dismissal request and entry of dismissal. And right before ruling, the court stated, “Okay. So here’s the problem: Mr. Georgianna is saying he didn’t know about this. This matter was just filed in July. The request for dismissal was filed 9/23/25, and Mr. Georgianna is saying he didn’t know about it and didn’t get it, just found out about it fairly recently and then promptly acted to set that aside. [¶] The law favors adjudication of disputes on the merits.” 3 For this reason, and because there is no copy of a power of attorney in the record, we do not consider whether Sibylle validly signed the dismissal request on Thomas’s behalf. However, we note the request for dismissal only contained one illegible signature on the line associated with Thomas; it did not indicate someone was signing on his behalf. 7  Turning to Sibylle’s due process argument, she contends the trial court “did not allow her to testify” as to certain matters during the hearing on Thomas’s motion. Nothing in the record shows, expressly or implicitly, that the trial court prevented either party from speaking at the hearing. Based on its review of the papers filed prior to the hearing, the court had specific questions for each party, and it allowed them to answer those questions uninterrupted. Further, the testimony that Sibylle claims she was not able to present at the hearing was contained in her written response to Thomas’s motion and her related declaration. She was given a meaningful opportunity to be heard on the requested relief, not deprived of one.4 DISPOSITION The petition is denied. Thomas is entitled to costs. DELANEY, ACTING P. J. WE CONCUR: SCOTT, J. SERVINO, J. 4 In the conclusion of his respondent’s brief, Thomas asks us to issue sanctions against Sibylle pursuant to Family Code section 271. We decline to do so. Thomas’s request was not set forth in a separate motion as required by California Rules of Court, rule 8.276. Additionally, although we find Sibylle’s arguments lack merit, the petition is not frivolous. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 [“An appeal that is simply without merit is not by definition frivolous and should not incur sanctions”].) 8