Haffner v. Perez CA1/2

Filed 3/7/23 Haffner v. Perez CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

ROSEMARY HAFFNER, Plaintiff and Appellant, A163564 v. FERNANDO PEREZ, JR., (Contra Costa County Individually and as Trustee, etc., Super. Ct. No. MSP18-00394) Defendant and Respondent.

Rosemary Haffner seeks to appeal from a probate court order denying her motion under Code of Civil Procedure section 473, subdivision (b), to vacate a judgment. Because the challenged order is not appealable, we dismiss the appeal. FACTUAL AND PROCEDURAL BACKGROUND In 2018, Haffner filed a petition in the probate court seeking, among other things, to determine the validity of certain amendments to a trust established by her deceased father. Trial was set for February 10, 2020.1 In January, the trial was continued to April 6 in response to a request by Haffner that was based on a declaration from her counsel, John Browne, concerning his medical condition.

1 Subsequent dates are in 2020 unless otherwise stated.

1

The April trial date was continued as a result of court closure for COVID. In July, trial was set for October 28. On October 14, Haffner filed an ex parte application for continuance on the ground that Browne was unavailable because of illness and needed time to obtain replacement counsel. The probate court denied the application. On October 27, the day before trial, respondent’s counsel executed a declaration stating that he had not received Haffner’s exhibit list, exhibits, witness list or trial brief as required by the probate court’s pretrial order and that Browne had “rebuffed [his] efforts to meet and confer” regarding stipulations of fact. When the case was called for trial on the afternoon of October 28, neither Haffner nor Browne was present. The probate court granted respondent’s request to dismiss the petition without prejudice for failure of petitioner to appear, as authorized by subdivision (b) of section 581 of the Code of Civil Procedure.2 A written order was entered in November dismissing Haffner’s petition without prejudice and imposing the monetary sanctions on Haffner and Browne. No appeal was taken. In February 2021, Haffner moved to vacate the dismissal under section 473, subdivision (b), on the grounds of excusable neglect or, in the alternative, attorney fault. The motion was supported by an eight-page declaration from Browne. The probate court denied the motion, and Haffner filed a notice of appeal in September.