Robinson v. Maniscalco CA4/1

Filed 10/22/26 Robinson v Maniscalco CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA DEBORA WINOCUR ROBINSON, as D086778 Trustee, etc., Plaintiff and Respondent, (Super. Ct. No. 37-2019- 00008314-PR-TR-CTL) v. SANTINO MANISCALCO, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. Frazier, Judge. Affirmed. Santino Maniscalco, in pro. per. for Defendant and Appellant. Law Office of Timothy J. Galvin and Timothy J. Galvin for Plaintiff and Respondent. Santino Maniscalco1 appeals from the judgment following the grant of a Probate Code2 section 850 petition filed by Debora Winocur Robinson as 1 For purposes of clarity, and not intending any disrespect, we refer to individuals by their first names. the trustee of the Emanuel Maurice Winocur Trust Dated August 24, 2004 (“trust”). The petition primarily sought an order for Santino to return the real property belonging to his deceased stepfather’s trust. We conclude that Santino has failed to perfect an appeal from the order granting that petition. We affirm the judgment.3 FACTUAL AND PROCEDURAL BACKGROUND A. Summary of Evidence4 Emanuel Maurice Winocur and Ruth Maniscalco, husband and wife, now deceased, jointly purchased a house in Oceanside, California. Ruth held an undivided 50 percent interest in the property and subsequently transferred it to her only son, Santino. The other 50 percent was held in Emanuel’s trust. According to the terms of the trust, Emanuel’s children, Debora Winocur Robinson and Marcelo Gustavo Winocur, were to receive Emanuel’s half of the property after he and Ruth passed away. When Emanuel was 90 years old, he suffered from a host of ailments. Seeking to obtain the other half of the real property held in trust, Santino prepared a quitclaim deed and took Emanuel to the bank to execute it. 2 Statutory references are to the Probate Code unless otherwise specified. 3 The request to augment the record and take judicial notice is denied because Santino has not demonstrated that the documents were properly before the probate court. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [appellate courts will only consider matters which were part of the record at the time the judgment or appealable order was entered].) 4 Because the bench trial was unreported and there is no record of the oral proceedings, the facts in this section come from the probate court’s September 26, 2024 minute order. 2 Emanuel signed the deed, transferring the property to Santino. Without notifying Emanuel’s children, Santino promptly recorded the deed. B. Probate Court Proceedings Based on an undue influence theory of recovery, Debora, as trustee of the trust, filed a petition under section 850, seeking an order returning the property to the trust and imposing section 859 damages and attorney fees and costs against Santino. Several witnesses testified at a four-day bench trial. On September 26, 2024, after closing arguments, the probate court announced its ruling in open court and in the presence of the parties. The court granted the petition and ordered that Santino return the property to the trust “forthwith” and pay statutory damages in the amount of $300,000 and attorney fees in an amount subject to motion. The September 26, 2024, minute order included the court’s orders and a tentative statement of decision explaining the court’s findings that Santino acted in bad faith and unduly influenced Emanuel to transfer the property out of the trust. The minute order noted the tentative statement of decision “will be final absent any timely objection or request.” The court also directed the attorney to prepare the judgment and a deed for Santino to execute. No party requested a statement of decision. On February 14, 2025, the probate court entered a judgment, which included a summary of the proceedings and the orders previously included in the September 26, 2024 minute order. On August 11, 2025, Santino filed a notice of appeal from the judgment. This was the only notice of appeal Santino filed in the case. DISCUSSION A. Santino Failed to Appeal from the September 26, 2024 Order Adjudicating the Merits of Claims Made Under Section 850 et seq. 3  Santino’s arguments on appeal ask us to review and reverse the probate court’s September 26, 2024 order granting the petition under sections 850, 856, and 859, as well as the subsequent judgment entered on February 14, 2025. Yet Santino’s notice of appeal, upon which this appeal rests, addresses only the judgment. Given that Santino never filed a notice of appeal from the September 26, 2024 order, and because the notice of appeal before us was filed nearly a year after that order was entered in the permanent minutes, we raise on our own initiative, as we must, the issue of whether we have jurisdiction to review the order. (See Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) Accordingly, we asked the parties for letter briefs addressing the issue. We reviewed their responses and conclude the September 26, 2024 order is not properly before us. “The right to appeal in California is ‘entirely statutory and subject to complete legislative control.’ [Citations.] Although the Judicial Council, in the California Rules of Court, has prescribed procedural rules governing the appellate process, it ‘does not have power to’ promulgate rules that ‘restrict the statutory right of appeal.’ [Citation.] Consequently, a rule ‘construed to define a right of appeal more restrictive than the right of appeal afforded by’ statute ‘would be “to that extent void.” ’ ” (Meinhardt v. City of Sunnyvale (2024) 16 Cal.5th 643, 651–652 (Meinhardt).) “Reviewing courts likewise must remain true to statutes. ‘Though the rules governing appealability have common law roots,’ courts ‘are not at liberty to modify those [common law] contours in ways at odds with the statutory language.’ ” (Id. at p. 652.) Code of Civil Procedure section 904.1, subdivision (a), “which provides a list of appealable judgments and orders, permits an appeal in any unlimited civil action to be taken from any of 14 enumerated filings. The first such filing, with exceptions not relevant here, is ‘a judgment, except an 4 interlocutory judgment.’ ” (Meinhardt, supra, 16 Cal.5th at p. 652; Code Civ. Proc., § 904.1, subd. (a)(1).) “This means an appeal must be taken ‘from a judgment that is not intermediate or nonfinal but is the one final judgment.’ [Citations.] This ‘one final judgment rule is “a fundamental principle of appellate practice” ’ [citation], the purpose of which is to prevent ‘ “piecemeal disposition and multiple appeals” ’ that ‘ “tend to be oppressive and costly” ’ [citation].” (Meinhardt, at p. 652.) Orders that are not statutorily appealable “must therefore be taken from a ‘judgment’ before the trial court’s decision may be reviewed.” (Id. at p. 653.) In contrast, the remaining subdivisions of Code of Civil Procedure section 904.1 “lists various specific additional appealable orders that stand as exceptions to the general [one final judgment] rule.” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 756, fn. 3 (Baycol).) Appealable orders are not reviewable by an appeal from a subsequent order or judgment. (Id. at p. 761, fn. 8; Alch v. Superior Court (2004) 122 Cal.App.4th 339, 361 [“Under any circumstances, a plaintiff will have one, and only one, opportunity to appeal an order that has the legal effect of disposing of all class claims.”]; Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 967 [“If [a] ruling is appealable, the aggrieved party must appeal or the right to contest it is lost.”].) “California follows a ‘one shot’ rule under which, if an order is appealable, appeal must be taken or the right to appellate review is forfeited.” (Baycol, at p. 761, fn. 8.) The exception relevant here is Code of Civil Procedure section 904.1, subdivision (a)(10), which permits an appeal from “an order made appealable by the Probate Code.” “ ‘ “Appeals [that] may be taken from orders in probate proceedings are set forth in . . . the Probate Code, and its provisions are exclusive.” [Citation.] “There is no right to appeal from any orders in 5 probate except those specified in the Probate Code.” [Citation.]” ’ ” (Estate of Miramontes-Najera (2004) 118 Cal.App.4th 750, 754.) The Probate Code’s purpose is to “foster the expeditious resolution of estate matters.” (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1126.) Consistent with that purpose, “[t]he orders listed as appealable in the Probate Code must be challenged timely or they become final and binding.” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1450, fn. 5.) It follows that they may not be collaterally attacked in a subsequent appeal from a final order of distribution or judgment. (See ibid. [listing cases].) Section 1300 lists several “orders” that are appealable when made in general probate proceedings. Under section 1300, subdivision (k), an appeal may be taken from an order adjudicating a property claim asserted under section 850 et seq., which provides “a mechanism for court determination of rights in property claimed to belong to a decedent or another person.” (Estate of Young (2008) 160 Cal.App.4th 62, 75; § 1300, subd. (k) [An appeal may be taken “from the making of, or the refusal to make,” an order “[a]djudicating the merits of a claim made under Part 19 (commencing with section 850) of Division 2.”].) Here, the probate court fully adjudicated the merits of the claims alleged in the section 850 petition on September 26, 2024, after the conclusion of trial. The court announced its order granting the petition in open court and entered the order in the permanent minutes the same day.5 5 Section 850, subdivision (a)(3)(B) states that “persons may file a petition requesting that the court make an order under this part … [w]here the trustee has a claim to real or personal property, title to or possession of which is held by another.” (Italics added.) Indeed, the petition itself requested the court issue an order. 6 That order was specifically appealable under section 1300, subdivision (k). (See also Carne v. Worthington (2016) 246 Cal.App.4th 548, 555 [the denial of a § 850 petition is an appealable order].) Santino thus had to timely appeal from that order “or the right to challenge its particulars [would] be forever lost.” (See Baycol, supra, 51 Cal.4th at p. 761, fn. 8.) Santino challenges this analysis, arguing that the probate court’s September 26, 2024 order granting the petition was not appealable because it was expressly tentative. We disagree. The minute order shows that the probate court provided a tentative statement of decision, should the parties request one, and then separately entered its order granting the petition. Santino contends nonetheless that the court’s decision was not appealable because it was included in a minute order and not in a signed written order or judgment. He relies primarily on rule 8.104(c)(2),6 which provides that the date of entry of an appealable order is the date the signed order is filed, “if the minute order directs that a written order be prepared.” Even assuming this provision applied, the rule would not make the order unappealable. (See Russel v. Foglio (2008) 160 Cal.App.4th 653, 660 (Russel).) Rule 8.104(c)(2) establishes when an appealable order is entered for the purposes of that rule, but it “does not purport to determine what is appealable; indeed, it applies by its terms to appealable orders.” (See Russel, at p. 660.) We disagree with Santino’s contention for two additional reasons. First, “[a]n unsigned minute order can form the basis of an appeal.” (See In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1410; In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 685–686 [minute order was appealable; 6 Unspecified references to “rule” are to the California Rules of Court. 7 subsequent order set time of entry]; Walton v. Mueller (2009) 180 Cal.App.4th 161, 167 [minute order denying motion was appealable]; Hang v. RG Legacy I, LLC (2023) 88 Cal.App.5th 1243, 1252–1253 [minute order was appealable even though it was a conditional order that was self-executing to effect].) Second, the Probate Code does not preclude probate courts from making its decisions adjudicating section 850 et seq. claims by a minute order, nor does it require the entry of a judgment. Rather, the following procedure is contemplated: “Upon a sufficient showing, the probate court ‘shall make an order authorizing and directing the personal representative or other fiduciary, or the person having title to or possession of the property, to execute a conveyance or transfer to the person entitled thereto, or granting other appropriate relief.’ (§ 856.) Such an order is prima facie evidence of the correctness of the proceedings and of the authority of the personal representative or other fiduciary or other person to make the conveyance or transfer, and the order vests the person obtaining the order with the right to the possession of the property according to the terms of the order, “ ‘as if the property had been conveyed or transferred in accordance with the terms of the order.’ (§ 857, subds. (a), (b).)” (Estate of Young, supra, 160 Cal.App.4th at p. 86.) In addition, the personal representative is directed to “record a certified copy of the order in the office of the county recorder in which any portion of the real property is located.” (§ 7263.) “The Legislature’s ‘complete . . . control’ over the right to appeal, the ‘entirely statutory’ nature of the right to appeal” (Meinhardt, supra, 16 Cal.5th at p. 654), the plain language of section 1300, subdivision (k), which makes an order adjudicating the merits of claims made under section 850 et seq. separately appealable, and the procedure for orders affecting title 8 to real property in section 850 et seq. and section 7263, all indicate that the court’s September 26, 2024 order was immediately appealable. Santino filed a notice of appeal―not from that order, but from the judgment. “[T]he powers of a reviewing court do not include the power to ‘review any decision or order from which an appeal might have been taken’ but was not.” (Baycol, supra, 51 Cal.4th at p. 761, fn. 8; see Code of Civ. Proc., § 906.) We thus lack jurisdiction to review the September 26, 2024 order. B. We Cannot Create Appellate Jurisdiction by Liberally Construing Santino’s Notice of Appeal We acknowledge the principle that a “notice of appeal must be liberally construed.” (Rule 8.100(a)(2).) But it would be an idle act to construe Santino’s notice of appeal as directed at the order granting the petition because an appeal from that order would be untimely and we would have to dismiss it. (See Russel, supra, 160 Cal.App.4th at p. 661.) Santino’s time to appeal from the September 26, 2024 order expired well before he filed his only notice of appeal on August 11, 2025. Under the operative rule 8.104(a)(1)(C), Santino had 180 days from the entry of the order in which to file a notice of appeal. Rule 8.104(c)(2) states, “The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed; a written order prepared under rule 3.1312 or similar local rule is not such an order prepared by direction of a minute order.” (Rule 8.104(c)(2).) “It is a matter of trial court procedure whether the court chooses to make its final decision by the entry in the minutes of an order without a direction that a written order be prepared, signed and filed, or elects to enter a direction that a formal order be prepared.” (Herrscher v. Herrscher (1953) 41 Cal.2d 300, 9 304.) “[W]here the minute order does not direct or otherwise require a further or formal order, appeal lies from the minute order despite the fact that a formal order or formal judgment is subsequently entered.” (Wright v. Groom Trucking Co. (1962) 206 Cal.App.2d 485, 488.) Here, September 26, 2024, was the date of the order’s entry because the minute order did not direct counsel to prepare a written “order,” but a “judgment.” (See Russel, supra, 160 Cal.App.4th at p. 660.) The rule states clearly and precisely that the date of filing of a signed written order becomes the operative date only if “the minute order directs that a written order be prepared.” (Rule 8.104(c)(2), italics added; see Hughey v. City of Hayward (1994) 24 Cal.App.4th 206, 209 (Hughey) [construing the formerly numbered rule 2(b)(2)].) An “order” is defined as “[e]very direction of a court or judge, made or entered in writing, and not included in a judgment.” (Code Civ. Proc., § 1003.) Although a formal order, judgment, or something further may be contemplated, “the date of entry remains the date the order is entered in the permanent minutes unless the minute order expressly directs the preparation of a written order.” (See Hughey, supra, 24 Cal.App.4th at p. 209 [construing the formerly numbered rule 2(b)(2)]; Gassner v. Stasa (2018) 30 Cal.App.5th 346, 356–357 [minute order directed party to give notice].) When an order is appealable, the court’s direction in the minute order to prepare a “judgment” does not postpone the entry date of the order. (See Russell, supra, 160 Cal.App.4th at p. 660.) In Russell, supra, 160 Cal.App.4th at p. 660, the court’s written order directed defendant to prepare a judgment. The Court of Appeal held that the entry date of the trial court’s order was not affected by the court’s direction to prepare a judgment. “There was no need for a further signed order to finalize 10 the adjudication. And in fact, the order directed that defendant prepare not a further, more formal order, but a judgment.” (Ibid.) Likewise, here, the minute order did not direct counsel to prepare a further order, but a judgment. And, as addressed above, the entry of a judgment is not procedurally required to finalize the adjudication of claims made in a section 850 petition. The difference between a minute order directing a written “order” be prepared and directing a “judgment” be prepared might seem hypertechnical. “In another context it might be.” (See 20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 672.) Because the time limits for filing a notice of appeal are jurisdictional and the time to appeal from an appealable order is 180 days after its entry under rule 8.104(a)(1)(C), what constitutes “entry” under rule 8.104(c)(2) must be strictly and literally applied according to its terms. (See Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902–903 [applying rule 8.104(a)(1)]; 20th Century, at p. 672 [“Since the time within which an appeal must be filed is jurisdictional, rules that measure that time must stand by themselves without embroidery.”].) “ ‘[B]right lines are essential in this area, to avoid both inadvertent forfeiture of the right to appeal and excessive protective appeals by parties afraid they might suffer such a forfeiture.’ [Citation.] ‘ “Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.” ’ ” (Meinhardt, supra, 16 Cal.5th at pp. 657–658.) We acknowledge the possibility that an attorney or litigant, knowing a subsequent order or judgment will be prepared, might assume the time for appeal will begin to run once it is filed. (See Hughey, supra, 24 Cal.App.4th at pp. 209–210.) In fact, the time under rule 8.104(a)(1)(C) will have commenced to run upon the entry of the appealable order in the permanent 11 minutes. (Hughey, at p. 210.) As this case demonstrates, “[t]he result could be failure to file a timely notice of appeal.” (Ibid.) That possibility is a necessary tradeoff of the Legislature’s decision to make orders adjudicating the merits of section 850 et seq. claims an exception to the one final judgment rule. Accordingly, genuinely aggrieved litigants should exercise caution when an exception to the one final judgment applies because there will be a limited time in which “ ‘to choose between immediate appeal and the permanent loss of possibly meritorious objections.’ ” (Baycol, supra, 51 Cal.4th at p. 757; see Hughey, at pp. 209–210 [acknowledging a party may lose their right to appeal while they await a subsequent order]; see Cuenllas v. VRL Intern., Ltd. (2001) 92 Cal.App.4th 1050, 1053 [same]; Russell, supra, 160 Cal.App.4th at p. 664 (conc. opn. of Rubin, J.) [acknowledging that a party may lose their right to appeal while they await the final judgment].) If we were to liberally construe Santino’s August 11, 2025 notice of appeal to be directed at the order granting the petition, it would be untimely nevertheless because the operative period to appeal expired on March 27, 2025―180 days from the order’s entry. Accordingly, an appeal from the order granting the petition is not properly before us. C. The Judgment Santino attacks the judgment on the ground that the probate court’s order granting the petition pursuant to sections 850, 856, and 859 was erroneous. As addressed above, Santino could have, but failed to, appeal from the September 26, 2024 order granting the petition. Because “we may not review any order from which a separate appeal might have been taken” (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1248), we affirm the judgment. 12  DISPOSITION The judgment is affirmed. Respondent shall recover costs on appeal. BERMÚDEZ, J. WE CONCUR: DO, Acting P. J. RUBIN, J. 13