Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Richard G. Cline, Judge, Super. Ct. No. PN28350
McCONNELL, P. J.
In this trust proceeding, the issue is whether the probate court abused its discretion by setting aside a judgment taken against the defendant after the court excluded her testimony and proceeded by default against her on the court's mistaken belief she did not file written objections as required by local rule. We conclude that although the judgment was final, the court had inherent equitable power to set it aside on the ground of mistake and lack of a fair adversary proceeding. Accordingly, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Charles and Alice Soltysiak married in 1957 and in 1993 they created the Charles and Alice Soltysiak Family Trust. They transferred title to their residence, which they purchased in 1968, into the trust. Nancy J. Crabtree and her brother Charles David Soltysiak are Charles and Alice's children and beneficiaries of the trust, and Crabtree is successor trustee.
To avoid confusion, when we refer to the Soltysiaks individually we use their first names.
Alice died in May 1996, and in approximately April 1999 Charles, then 73 years of age, married Olga Labarre-Soltysiak, a Ukrainian immigrant nearly 20 years his junior. Before the marriage, Charles had encumbered his residence with a reverse mortgage. In June 2002 Charles transferred title to the residence from the trust to himself individually, and a month later, he transferred title to himself and Olga as joint tenants.
On June 17, 2005, Crabtree filed a petition for an order transferring title to the residence back to the trust. The probate court's minutes of a hearing on July 29, 2005, note that attorney Charles Salter was "retained to represent Olga." Salter made court appearances and attended a mediation of the matter. Court minutes of hearings on December 9, 2005, and January 20, 2006, note that Salter was Olga's attorney.
In a February 14, 2006 letter to other attorneys in the case, Salter referenced the superior court case number for this matter, and advised he was no longer representing Olga in the matter and all future communications should be sent directly to her. Salter, however, never obtained or filed a substitution of attorneys or moved for a court order relieving him as Olga's counsel of record.
On March 16, 2006, Crabtree, through her attorney Susan Wilson, served Olga with a notice of deposition on March 31 and for the production of documents. Olga did not appear for the deposition, and in an April 11 letter, Wilson reminded her that trial was scheduled for May 8, 2006, and advised Olga she needed to take her deposition before then. Wilson asked Olga to contact her with a deposition date, and cautioned Olga that if she did not telephone Wilson by April 19 she would move the court for an order compelling her appearance at deposition. Olga did not make herself available for deposition, but Wilson never moved for an order to compel her appearance.
On May 2, 2006, Crabtree filed a motion in limine to exclude Olga's testimony, or in the alternative, render a default judgment against her as a sanction for abuse of the discovery process and as a sanction for not filing written objections to the accusations against her, as required by local court rule. Crabtree served Olga with the motion on May 1 by overnight mail.
On May 4, 2006, Olga filed three superior court forms entitled "Declaration," in which she made handwritten statements. One of the forms stated: "When Charles told me - He wants to buy his house back, we got agreement: Charles will pay all his retirement for house, I will pay all utility, food and taxes. I did this and do this still. Charles's retirement goes to pay for nursing home, and to pay for mortgage. Nancy managed his money, because she took 'Power of attorney.' Her name is in Charles bank account, I insisted - Charles did this in August 2002. . . . I had from previous husband, who died in Feb. 1997 - $35,000. I spent all this money [undecipherable] 5 years. I love Charles, and (spent money) did this with Happiness." Attached to the form were copies of checks Olga had written on her account for utilities, groceries and taxes, and an April 2000 check to Charles for $5,000.
English is not Olga's first language, and thus there are some spelling and grammatical errors in her statements.
Another of the forms stated: "I met Charles . . . in October 1998 in thrift store in Vista. We become big friends. We have dates every day. And in April 19, 1999 we got married. Charles was smart, interesting very intelligent person. He is my man forever. Im living in his own house. Not in the house of Nancy Crabtree or John Crabtree. And I object to put house back in trust. I payd with Charles for this house back money that Charles gave Nancy for to pay $60,000 for her own house in 1995." Attached to the form were Charles's medical records from August 1999, a few months after his marriage to Olga, in which a physician diagnosed "possibly mild forgetfulness," but found no evidence of dementia. The records were not authenticated, and Olga did not serve any of her declarations on Crabtree.
Olga appeared at the May 8, 2006 trial in propria persona. Although Olga's declarations were in the court file, the judge was unaware of them. As a preliminary matter, the court granted Crabtree's motion in limine. It issued an ambiguous order that stated: "1. Pursuant to Code of Civil Procedure section 2023.030 , the Court imposes a sanction on Olga Labarre-Soltysiak in the form of the exclusion of her testimony as a witness at trial; [¶] [ALTERNATIVE ORDER:] [¶] 1. Pursuant to . . . section 2023.030, the Court imposes a terminating sanction on Olga . . . in the form of a judgment by default being rendered against [her]."
Further statutory references are to the Code of Civil Procedure unless otherwise specified.
The minutes from the May 8 hearing stated: "Motion in limine to exclude tesyimony [sic] of Olga . . . or, in the alternative, render judgment by default against [her]; declaration of Susan Strickland Wilson in support thereof — GRANTED. [¶] Court . . . notes that [Olga] has failed to attend the noticed deposition and has also failed to provide documents requested by [Crabtree]. [¶] Court cannot consider [Olga's] objections because there are none before the court. Court will take notice of the conservatorship matter that has been filed and also all submitted documents. This matter to proceed by default." (Original boldface.)
Crabtree testified and produced documentary evidence, including medical records and a declaration by Dr. Hall. On June 5, 2006, the court issued a judgment in which it determined Charles never intended for Olga to acquire title to or hold any legal interest in the residence, when he transferred it from the trust he lacked the capacity to execute the grant deed, and Olga exercised undue influence over him and the transfer of the residence to a joint tenancy unjustly enriched her. The court confirmed title to the residence in Crabtree, as trustee.
On January 3, 2007, a substitution of attorney form was filed in which attorney Matthew Palmer substituted into the case for Olga. On February 26, 2007, she moved the court to void the judgment under its equitable powers, or alternatively, to set aside the judgment as void under section 473, subdivision (d), on the ground her due process rights were violated because Crabtree did not obtain an order compelling her to attend deposition, and failed to timely serve her with a noticed motion to exclude her testimony and proceed by default.
Olga filed a declaration that stated she never executed a substitution of attorney for Salter, and "[a]fter Salter unilaterally removed himself from his representation of me, I had only two months to file documents and prepare for trial." The declaration also stated that "[s]ince I was a Ukrainian immigrant, I did not understand the legal system and the importance of the various legal proceedings."
Olga's memorandum of points and authorities also made several references to a January 31, 2007 declaration by her which addressed the substantive merits of her defense against Crabtree's accusations. The appellate record, however, does not contain any such declaration. Further, we have taken judicial notice of the probate court's file (Evid. Code, § 452, subd. (d)) and it contains no such declaration.
At a hearing on April 12, 2007, the court granted Olga's motion, remarking that its ruling on Crabtree's motion in limine was not based on discovery abuse, but on its belief that Olga had not complied with the local rule that requires written objections. The court stated, "I had thought I told [Olga] to file written objections, but the record does not show that and I cannot find any documentation that I followed what would otherwise have been my usual procedure. So we get to the time of trial and lodged in the file are some handwritten documents, not in proper format, not served, and not brought to my attention, and only belatedly when I dig through the file to address this motion do I find that legally they would constitute objections. And the other information that's been presented establishes that there are legitimate issues. [¶] So my ruling [on the motion in limine] was erroneous." The court ordered Olga "to properly label, timely file and notice all written objections in this matter."
DISCUSSION
Crabtree contends the court abused its discretion by setting aside the judgment because it is not void on its face, and Olga lacks a satisfactory excuse for waiting more than eight months to bring her motion. Crabtree asserts the judgment was entered after a fair, adversary trial in which Olga had the opportunity to present evidence and a defense but failed to do so.
Olga counters that even though she did not move for relief from the judgment until after it was final, the court properly set it aside as voidable under its inherent equitable powers because it was entered through extrinsic fraud or mistake, since the court was unaware of her written objections and meritorious defense. Alternatively, she asserts the judgment is void on its face because the court granted Crabtree's motion in limine for an evidence sanction or terminating sanction based on Olga's failure to appear for deposition, when Crabtree obtained no order compelling her attendance and gave her insufficient notice of her intention to seek sanctions for discovery abuse.
I
General Principles
"The term 'jurisdiction,' 'used continuously in a variety of situations, has so many different meanings that no single statement can be entirely satisfactory as a definition.' [Citation.] Essentially, jurisdictional errors are of two types. 'Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter of the parties.' [Citation.] When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and 'thus vulnerable to direct or collateral attack at any time.' " (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 (American Contractors); see also Code Civ. Proc., § 473, subd. (d) ["The court may . . . on motion of either party after notice to the other party, set aside any void judgment or order"].) A judgment is void on its face if an inspection of the court record shows its invalidity. (In re Dahnke's Estate and Guardianship (1923) 64 Cal.App. 555, 560.)
"However, 'in its ordinary usage the phrase "lack of jurisdiction" is not limited to these fundamental situations.' [Citation.] It may also 'be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no "jurisdiction" (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.' [Citation.] ' "[W]hen a statute authorizes [a] prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction." ' [Citation.] When a court has fundamental jurisdiction, but acts in excess of its jurisdiction, its act or judgment is merely voidable. [Citations.] That is, its act or judgment is valid until it is set aside, and a party may be precluded from setting it aside by 'principles of estoppel, disfavor of collateral attack or res judicata.' [Citation.] Errors which are merely in excess of jurisdiction shall be challenged directly, for example by motion to vacate the judgment, or on appeal, and are generally not subject to collateral attack once the judgment is final unless 'unusual circumstances were present which prevented an earlier and more appropriate attack.' " (American Contractors, supra, 33 Cal.4th at p. 661.)
The court, however, also has inherent equitable power to set aside a final judgment that is not void under certain circumstances. As Witkin explains: "A judgment on the merits that is not void on its face and subject to collateral attack is protected by the doctrine of res judicata after the time for ordinary direct attack has passed. [Citation.] But sometimes the judgment is obtained under circumstances of fraud or mistake that prevent 'a fair adversary hearing,' and the aggrieved party does not have a reasonable opportunity to litigate his [or her] claim or defense. Such a judgment is not entitled to the usual conclusive effect, and equitable relief is allowed long after the time for appeal, new trial, or other statutory means of review has expired." (8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 214, p. 718, italics added.) "Although commenced long after the normal period of finality, an independent action in equity is nevertheless not a collateral attack. The action is brought for the express purpose of nullifying the judgment, and is as much a direct attack as a motion for new trial or appeal. (Id. at p. 719.)
As our high court explained in Olivera v. Grace (1942) 19 Cal.2d 570, 574 (Olivera): "Apart from statutory authority, all courts are said to have an inherent power to correct their records so as to make them speak the truth, and under this inherent power courts have frequently corrected their final judgments when, because of clerical errors or omissions, the judgments actually rendered were not the judgments intended to be rendered."
Contrary to Crabtree's assertion, Olivera does not hold that the court has inherent authority to set aside a judgment only if it is void on its face. Rather, after Olivera discusses the court's inherent power to correct a judgment "because of clerical errors or omissions" that rendered a judgment the court did not intend, it states: "Similarly, a court has inherent power, apart from statute, to correct its records by vacating a judgment which is void on its face, for such a judgment is a nullity and may be ignored." (Olivera, supra, 19 Cal.2d at p. 574.)
In Baske v. Burke (1981) 125 Cal.App.3d 38 (Baske), this court exercised its inherent equitable power to set aside a default judgment long after it was final on the ground of mistake. The elderly plaintiff (Cooper) was served with summons and an executor's complaint for partition and sale of a painting. Cooper sent several handwritten documents to the superior court clerk, which were placed in the record but were not filed as a response or answer to the complaint, "despite her written request to 'do what was needed [to] file,' an offer to 'pay fees needed' and claim of right '1/4 interest' in the painting." (Id. at p. 41.) On October 28, 1978, a judgment of default was issued against Cooper and her interest in the painting was "declared to be a life estate valued at 4.06 percent instead of one-fourth outright ownership claimed by her." (Ibid.)
On February 21, 1980, Cooper moved to set aside the default judgment. After an evidentiary hearing, the court granted the motion and vacated the default on "the grounds the court clerk mistakenly refused to file papers and documents sent by Cooper as an answer to [the] partition action. The trial court construed Cooper's letter of August 27, 1978, and accompanying 'pleading' as an answer to the complaint that should have been filed." (Baske, supra, 125 Cal.App.3d at p. 41.)
On appeal, the executor argued the trial court lacked jurisdiction to set aside the default judgment. We disagreed, explaining: " 'It was a settled doctrine of the equitable jurisdiction—and is still the subsisting doctrine . . . that where the legal judgment was obtained or entered through fraud, mistake, or accident, or where the defendant in the action, having a valid legal defense on the merits, was prevented in any manner from maintaining it by fraud, mistake, or accident, and there had been no negligence, laches, or other fault on his part . . ., then a court of equity will interfere at his suit . . . . The ground for the exercise of this jurisdiction is that there has been no fair adversary trial at law.' [Citation.] The doctrine of relief in equity from mistake has applied where the mistake is that of the clerk of the court." (Baske, supra, 125 Cal.App.3d at p. 44.)
"A valid judgment will not be set aside merely because it was obtained by extrinsic fraud or mistake, in order to give the barren right to an adversary hearing. The plaintiff must plead and prove that he [or she] has a meritorious case, i.e., a good claim or defense that, if asserted in a new trial, would be likely to result in a judgment favorable to him [or her]." (8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 237, p. 751.)
II
Analysis
A
Olga's principal contention pertains to the court's lack of authority to issue sanctions for discovery abuse, given Crabtree's failure to comply with the procedural prerequisites of obtaining an order to compel her attendance at deposition and giving timely notice.
If a party does not appear for a scheduled deposition, or does not produce for inspection any document described in the deposition notice, the party noticing the deposition may move for an order compelling the deponent's attendance and testimony and the production of documents. (§ 2025.450, subd. (a).) "If that party . . . then fails to obey an order compelling attendance, testimony and production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . against that party deponent." (Id., subd. (d).)
Moreover, the court may not impose an evidence sanction unless the moving party has given the opposing party sufficient notice. (§ 2023.030.) Notice of any motion must generally be provided 16 days before the date of the hearing, and 21 days before the hearing if served by mail. (§ 1005, subd. (b).) Crabtree served her notice on Olga by mail a mere seven days before trial.
Although the court's order on Crabtree's motion in limine was ambiguous, the record shows the court did not issue a discovery sanction. Rather, it excluded Olga's testimony at trial and essentially proceeded on a default basis against her because it mistakenly believed she had not filed any written objections to the accusations against her, as required by local rule to preserve her defense. As we affirm on that basis, we are not required to further address the discovery sanction issue.
B
The Superior Court of San Diego County, Local Rules, rule 4.22.4 provides: "A person with standing may appear and object orally at the first hearing on any matter before the Probate Court. Thereafter objections, including grounds of opposition, to any petition or other pleading filed in Probate Court must be set forth in writing and filed either as required by statute or, in the absence of specific statutory requirements, by 4:30 pm at least three court days before the next scheduled hearing date on the petition or pleading. If written objections have not been filed in accordance with this rule, the court will either continue the matter to allow compliance with this rule or decide the matter as if no objection had been made, if the court, in its discretion, determines a party has been dilatory in complying with this rule." (Italics added.) Further, under Probate Code section 1020, an objection shall be in writing and filed with the court clerk.
We agree with Crabtree that the court's unawareness of Olga's declarations, or written objections, did not render the judgment void because the court had subject matter jurisdiction and jurisdiction over the parties. Accordingly, section 473, subdivision (d), which pertains to void judgments, is inapplicable. We also agree that the court's exclusion of Olga's testimony at trial cannot be considered an act in excess of its jurisdiction, since the record shows she did not file the objections at least three court days before trial or serve Crabtree with them. In other words, the court did not violate any statute or rule that made the judgment voidable.
The court's tentative ruling cited section 473, subdivision (d) as the basis for granting Olga relief from the judgment, but its order does not cite any statutory authority. Even if the court erroneously relied on section 473, subdivision (d), "we review the trial court's order, not its reasoning, and affirm an order if it is correct on any theory apparent from the record." (Blue Chip Enterprises, Inc. v. Brentwood Sav. & Loan Assn. (1977) 71 Cal.App.3d 706, 712.)
We conclude, however, that although the judgment was final, under the reasoning of our opinion in Baske, supra, 125 Cal.App.3d 38, the court properly exercised its inherent equitable authority to set it aside and allow Olga her day in court. " 'Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
The court clerk filed Olga's declarations, but, as Crabtree concedes, probably did not recognize them as objections because they were written on forms entitled "Declaration." Similarly, in Baske, supra, 125 Cal.App.3d at page 41, the court clerk did not recognize the defendant's handwritten documents as a response or answer to the complaint. In setting aside the judgment here, the court explained it had just become aware of the declarations, they constituted legally sufficient written objections, and Olga presented evidence of a meritorious defense. While Olga did not file the objections three court days before the hearing and did not serve them on Crabtree, the court, of course, has broad discretion on evidentiary rulings to ensure a fair adversary proceeding. Indeed, by setting aside the judgment the court showed it would have allowed Olga to rectify the procedural deficiencies in her filings had it been aware of her declarations earlier. By mistakenly believing Olga raised no objections, the court precluded her from testifying at trial and proceeded on a default basis.
Crabtree cites Demello v. Souza (1973) 36 Cal.App.3d 79, 84, which states it "is blackletter law that an unjust judgment or order by itself is not enough to grant relief under equitable principles. In order to succeed, the aggrieved party in addition must show a satisfactory excuse for not having made his [or her] claim or defense in the original action and diligence in seeking relief after discovery of the facts." Crabtree criticizes Olga for not advising the court at trial that she had filed written objections. Given the court's exclusion of her testimony and the default proceeding, however, the court could reasonably find at the hearing on Olga's motion for relief from the judgment that it had effectively silenced Olga at trial. Further, we must infer that the court determined Olga moved for relief from the judgment within a reasonable time. " 'What is a reasonable time is a matter of sound legal discretion in the court in which the motion is made.' " (McGuinness v. Superior Court (1925) 196 Cal. 222, 231.) We note that in Burke, supra, 125 Cal.App.3d at page 41, the successful motion for relief from default judgment was brought approximately 16 months after its entry.
Crabtree asserts the "court did not enter a default judgment in this matter." The court's minutes from the May 8, 2006 hearing, however, state, "This matter to proceed by default." (Original boldface.)
Olga represented herself at trial, and she asserts that Salter's unilateral withdrawal from her representation gave the court additional support for exercising its inherent equitable power to vacate the judgment. It is true, of course, that "[i]f litigation is pending, the attorney of record who seeks to withdraw without the consent of the client should make a noticed motion or application to the court." (1 Witkin, Cal. Procedure (4th ed. 1996) Attorneys, § 96, p. 132; Code Civ. Proc., § 284.) When Salter withdrew his representation, litigation was pending as Crabtree's petition for return of Charles's residence to the trust was unresolved and headed for trial. Given our holding, however, we are not required to address the attorney issue.
While we may have decided the matter differently in the first instance, we cannot say the court's ruling exceeded the bounds of reason.
DISPOSITION
The order is affirmed. Olga is entitled to costs on appeal.
WE CONCUR: O'ROURKE, J., AARON, J.