Opinion
D071698
05-29-2018
Estate of BERNARD LEONARD SULLIVAN, Deceased. SUSAN SULLIVAN WATKINS, Petitioner and Appellant, v. EMMETT HILL, Objector and Respondent; PATRICIA ANN LEWIS, Real Party in Interest and Respondent.
Hughes & Pizzuto and Anne Marie Rudolph for Petitioner and Appellant. Robert Lucas Law and Robert William Lucas for Objector and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00011051-PR-PL-CTL) APPEAL from an order of the Superior Court of San Diego County, Jeffrey S. Bostwick, Judge. Affirmed. Hughes & Pizzuto and Anne Marie Rudolph for Petitioner and Appellant. Robert Lucas Law and Robert William Lucas for Objector and Respondent.
Petitioner Suzanne Sullivan Watkins appeals from a probate court order granting objector Emmett Hill's motion to vacate judgment in the probate of the estate of Bernard Sullivan. Watkins was one of Sullivan's siblings, and co-administrator of the estate. Hill was a cousin. After probate concluded, Hill filed his motion on the grounds that Watkins burned a last will giving him the estate and failed to provide him with notice of the probate proceedings. The court held an evidentiary hearing and granted the motion, finding Hill was a reasonably ascertainable heir who did not receive notice and the probate orders resulted from extrinsic fraud.
On appeal, Watkins contends the court erred because Hill was not a potential heir, he did receive actual notice, and his motion was procedurally defective. Hill disputes these contentions. We conclude there is substantial evidence that Hill was a potential claimant (whether or not he was an heir), he did not receive notice, and the probate orders were based on extrinsic fraud. We further conclude Watkins has not established the probate court erred in considering Hill's motion. The order is affirmed.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Sullivan's Will and Probate Proceedings
Sullivan executed a holographic will in February 2004, leaving his assets to Watkins, other siblings, and his sister-in-law Patricia Ann Lewis (2004 Will). Hill was not named in the 2004 Will. Sullivan never married or had children, and his parents were deceased.
Sullivan died on February 23, 2014. On April 9, 2014, Watkins filed a petition for probate of the 2004 Will, letters of administration, and appointment of herself and Lewis as administrators. The petition identified various individuals mentioned in the will or who were surviving "issue of deceased parents," but not surviving next of kin. Hill was not identified. Watkins also published the notice of petition in a San Diego newspaper. Later that month, Watkins filed a notice of petition to administer the estate, with notice of the hearing. Hill was not on the service list. In May 2014, the probate court admitted the 2004 Will to probate, appointed Watkins and Lewis as co-administrators, and issued letters of administration.
Lewis is a real party in interest, but has not filed a brief.
In April 2015, Watkins and Lewis filed their first and final report of personal representative and petition for final distribution. The report noted Hill was Watkins's cousin and had been hired as a caretaker for a property in Oakhurst, California. In June 2015, Watkins and Lewis provided notice of the hearing on the final report and petition for final distribution. Hill again was not on the service list. On June 30, 2015, the probate court approved the final distribution.
B. Hill's Motion to Vacate the Judgment
In December 2015, Hill filed a motion pursuant to Code of Civil Procedure section 473, subdivision (b), to vacate the judgment, on the grounds that Watkins found and burned Sullivan's last will, which left his estate to Hill; failed to alert the probate court about these actions; failed to notify Hill about the probate of the 2004 Will; and violated his due process rights. He characterized her conduct as "fraud" and contended, among other things, that "[f]raud by the co-administrators and/or their legal counsel . . . may require the revisiting of the Judgment by this court." Hill also provided a declaration. Pertinent here, he asserted that at the time of Sullivan's death, Watkins told him Sullivan left a will leaving everything to him; there was writing on the sides, and she thought the court would not accept it, so burned it; and she would bring another will to court. He described later communications in which Watkins referenced the last will, Sullivan's property, and the will she was probating, as well as conversations with Lewis. He also noted he spoke with a former neighbor who was an attorney in or around August 2015.
We use the term "last will" solely for consistency with Hill's allegations.
Watkins and Lewis filed separate oppositions. Watkins argued the motion was procedurally defective and that Hill was not entitled to notice; she also denied burning the will (or telling him she had done so). Lewis indicated, in part, that she learned about the burned will from Hill in August 2015 and told him the probate case number. She described certain documents, including a declaration from Watkins in which she denied burning the will (indicating nonessential estate papers were shredded) and a 1099 tax form filed for Hill's work on the Oakhurst property, reflecting payment from the estate. In his reply to Watkins, Hill argued the judgment was procured by extrinsic fraud, citing Estate of Sanders (1985) 40 Cal.3d 607 (Sanders) and other authorities.
The probate court set an evidentiary hearing on extrinsic fraud. Watkins filed a supplemental opposition addressing Sanders.
At the evidentiary hearing, the probate court examined Hill and Watkins. According to Hill, he learned about the will purportedly burned by Watkins in February 2014. She told him the will gave Hill everything and was well done and correctly made out; there was writing around the edges, so she burned it; and she did not think the court would accept it, so had another will she was going to put forward. He also received a letter from Watkins denying that she burned the will, but indicating she shredded every unnecessary paper. Hill testified further that Watkins said in March 2014 she was bringing the properties together, and that she told him Lewis was getting the Oakhurst property at the end of June. He did not receive notice of the petition to administer the estate or the petition for the final distribution. He learned about the probate case from an investigator he hired after Lewis told him it was a will contest. Hill also stated he "thought that because [his] will was burned, that . . . [he] was out of it, out completely of any will, so that they were going to use the other will . . . that [Watkins] said that she was going to bring forward to [t]he [c]ourt."
Watkins then testified, and denied burning or destroying the will. She explained Sullivan was bipolar and, during his advanced manic stages, would continually write and fill up notebooks. In one notebook, "there was one sentence, no signature, no date, and no way of telling the date on these which said, 'I leave everything to Emmett.' " She discovered the writing in March 2014, and sent the notebooks for city recycling that month. She denied having a conversation with Hill in February 2014, and explained they spoke at his home on or about April 1, 2014 and she told him it was a sentence in a full notebook with no signature or date. She denied telling him what she did with the writing.
The probate court provided its ruling. The court indicated that "at the heart of this is . . . an issue of notice." The court was concerned with Hill's delay in exercising his rights, and was not persuaded that he did not know he had rights. However, the court found it was uncontroverted that Hill had no notice of the petition to probate or the petition for final accounting and distribution. The court stated:
"Mr. Hill, in [t]he [c]ourt's view, can be reasonably characterized as an ascertainable heir because at the time, Ms. Watkins was on notice that Mr. Hill had the potential right to inherit some of this property. She found writing. In that writing there was a sentence that she admits stated, in so many words, that the decedent was leaving property to Mr. Hill. [¶] At that moment, she had a responsibility to notice all reasonably ascertainable heirs, and with an assertion in writing [sic] that she apparently caused to be destroyed . . . by sending it to be recycled . . . , he becomes a reasonably ascertainable heir."The court cited Estate of Carter (2003) 111 Cal.App.4th 1139 (Carter), explaining that when there is a failure to give notice to reasonably ascertainable heirs, a court can either use its inherent power to set aside an order based on extrinsic fraud or set aside an order under Code of Civil Procedure section 473. The court further explained the burden is on the administrator to provide notice, not on the heir "to find out what has gone on in the case." The court stated:
"In this case, it was not done and was not done because the administrator in this case self-determined for some reason that even though she knew that there was a writing which she subsequently caused to be destroyed, wherein the decedent left property purportedly to an individual, she chose not to notice that individual, and in doing so, she violated that individual's constitutional rights to due process."The court determined there was evidence of failure to give proper notice to Hill, found orders were made on the basis of extrinsic fraud, and vacated the orders on the petition for probate, letters of administration, and orders on the final report.
Watkins moved for reconsideration, asserting Hill was not an ascertainable heir because he would receive nothing by intestate succession, and the probate court denied the motion. The court noted she erroneously assumed it found Hill to be an intestate heir, explaining the "court's minutes . . . do not support this assertion" and "the court made it abundantly clear . . . that the basis for its finding of extrinsic fraud was [her] destruction of a document which may have been testamentary in nature and her failure to notify Hill of these proceedings . . . ."
Watkins timely appealed.
II
DISCUSSION
A. Appealability
Hill contends the order granting Hill's motion is not appealable. We disagree. Code of Civil Procedure section 904.1, subdivision (a)(10) provides an appeal may be taken from "an order made appealable by the Probate Code . . . ." Appealable orders include those "revoking letters to a personal representative" (§ 1303, subd. (a)); "revoking the probate of a will" (§ 1303, subd. (b)); "[d]etermining heirship, succession, entitlement, or the persons to whom distribution should be made" (§ 1303, subd. (f)); and "[d]irecting distribution of property" (§ 1303, subd. (g)). "[T]he appealability of an order of the probate court is determined not from its form, but from its legal effect." (Estate of Martin (1999) 72 Cal.App.4th 1438, 1442.)
Further statutory references are to the Probate Code, unless otherwise noted.
Vacating has the same effect as revoking, and the portions of the order vacating the orders for probate and letters of administration are thus appealable under section 1303, subdivisions (a) and (b). Although the Probate Code does not expressly address revocation of orders on a final report and final distribution, that portion of the order arguably had the effect of determining entitlement and directing distribution (by revoking prior determinations in this regard), and would be appealable under section 1303, subdivisions (f) and (g). Moreover, the court vacated all of the orders due to extrinsic fraud, and they stand or fall together. If we conclude the court did not err in vacating the orders on probate and letters of administration, there is no basis for the orders on the final report and distribution to remain in place (and, if we reverse, reinstatement should follow). We conclude we have appellate jurisdiction, and proceed to the merits.
Hill criticizes Watkins's reliance on section 1303, subdivisions (f) and (g), which he contends do not support appealability. But they do arguably apply, she also relied on section 1303, subdivision (b), and a party's characterization of an order is not dispositive. (See In re Marriage of Loya (1987) 189 Cal.App.3d 1636, 1638 [explaining "appellate courts have no jurisdiction to entertain appeals except as provided by the Legislature," and party consent cannot " 'make a nonappealable order appealable' "].)
B. Watkins Does Not Establish the Probate Court Erred in Vacating the Probate Orders
1. Principles regarding extrinsic fraud and notice in the probate context
"Even in the absence of a timely contest . . . a court may exercise its equitable jurisdiction to set aside orders and decrees of probate proceedings in cases of fraud or mistake." (Sanders, supra, 40 Cal.3d at pp. 613-614.)
" 'Extrinsic fraud is a broad concept that "tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing." ' [Citations.] The clearest examples of extrinsic fraud are cases in which the aggrieved party is kept in ignorance of the proceeding or is in some other way induced not to appear. [Citations.] In both situations the party is 'fraudulently prevented from presenting his claim or defense.' " (Sanders, supra, 40 Cal.3d at pp. 614-615; see id. at p. 619 [reversing denial of motion to set aside probate orders; allegations, including that the executor "concealed . . . that he had arranged for the decedent to change her will to leave most of the estate to him" and "assured [the beneficiaries] . . . he would represent their interests," would "if true, clearly show extrinsic fraud"]; Carter, supra, 111 Cal.App.4th at pp. 1143-1144, 1154-1155 [affirming order vacating final distribution; brother, who filed probate petition, engaged in extrinsic fraud by determining decedent's daughters born out of wedlock were not heirs and not providing notice].) "The courts are particularly likely to grant relief . . . where there has been a violation of a special or fiduciary relationship." (Sanders, supra, 40 Cal.3d at p. 615.) "[T]he . . . administrator occupies a fiduciary relationship in respect to all parties having an interest in the estate . . . ." (Nathanson v. Superior Court of Los Angeles (1974) 12 Cal.3d 355, 364.)
Section 8110 requires that notice of the hearing for administration of a decedent's estate be given to all heirs, "so far as known to or reasonably ascertainable by the petitioner" and all devisees "in any will being offered for probate, regardless of whether the devise or appointment was purportedly revoked in a subsequent instrument." Notice also must be published. (§ 8120.) Section 11601 requires notice of the hearing on the petition for final distribution be given to each heir and devisee "whose interest in the estate would be affected by the petition" (as well as the Attorney General and/or Controller, in certain cases).
The courts have concluded that notice must be served upon potential claimants whose identity is known or reasonably ascertainable. (See Tulsa Professional Collection Services, Inc. v. Pope (1988) 485 U.S. 478, 490-491 (Tulsa) [known or reasonably ascertainable creditors]; Carter, supra, 111 Cal.App.4th at p. 1142 [" 'reasonably ascertainable,' " in the context of section 8110, has a "broad meaning," and includes "individuals (1) whose identities are known to the petitioner and (2) who reasonably might be heirs"]; see id. at p. 1148 ["The Solution: Notice to All Potential Claimants Whose Existence and Identities Are Known"].)
If a petitioner for administration of an estate "fails to give notice to a genuinely known heir, he or she commits extrinsic fraud . . . ." (Carter, supra, 111 Cal.App.4th at p. 1149, italics omitted; id. at p. 1154 [recognizing court can act under Code Civ. Proc., § 473 or its inherent power to set aside judgment procured by extrinsic fraud].) Compliance with statutory notice requirements does not necessarily preclude a finding of extrinsic fraud. (Cf. Estate of McGuigan (2000) 83 Cal.App.4th 639, 643, 649-650 (McGuigan) [niece petitioned for escheated property and knew about, but failed to identify, decedent's son; omission was extrinsic fraud even though applicable Probate Code section did not obligate notice to potential heirs]; State of California v. Broderson (1967) 247 Cal.App.2d 797, 800, 804-805 (Broderson) [heirs engaged in extrinsic fraud, even though they gave notice under statute, where they filed petition for entire estate but knew half would escheat to the state; explaining they had "duty to reveal to the probate court the extent of their knowledge, so that it might enter a proper decree"].)
2. Standard of review
We review a trial court's finding of extrinsic fraud for substantial evidence. (Carter, supra, 111 Cal.App.4th at p. 1154 [in review for extrinsic fraud, "the standard of review is that a determination of extrinsic evidence is accepted on appeal if supported by substantial evidence [citation], in which case all reasonable inferences from substantial evidence are also drawn in favor of the judgment"].)
Watkins contends de novo review applies here because the probate court was interpreting a notice statute and the material facts are undisputed. While de novo review may apply under such circumstances, they do not exist here. (Cf., e.g., Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212-213 [applying de novo review in trust dispute, where, among other things, trial court did not assess credibility of witnesses and appeal turned on the meaning of a statutory phrase]; Estate of MacLeod (1988) 206 Cal.App.3d 1235, 1241 [using independent review in will contest, where extrinsic evidence was not in conflict].) The court was applying extrinsic fraud principles, not interpreting the Probate Code, and the facts were not undisputed. Hill and Watkins provided conflicting accounts regarding what she told him and when, and would have us draw different inferences as to whether this resulted in actual notice as to the 2004 Will. (See Bower v. Inter-Con Security Systems, Inc. (2014) 232 Cal.App.4th 1035, 1043 ["Independent review is appropriate only when the facts permit just one reasonable inference."].)
3. Substantial evidence supports the order granting Hill's motion to vacate
There is substantial evidence that Hill was entitled to notice, he did not receive it, and the probate orders thus resulted from extrinsic fraud.
i. Entitlement to notice
Hill testified that Watkins told him the will gave him everything, and was well done and correctly made out. Although Watkins attempted to minimize the significance of the will and denied destroying it, she acknowledged that the writing existed, it stated "I leave everything to Emmett," and she disposed of it (albeit by recycling, rather than burning or shredding). This record provides substantial evidence that Hill was a known or reasonably ascertainable claimant, and thus entitled to notice. (Tulsa, supra, 485 U.S. at pp. 490-491; Estate of Carter, supra, 111 Cal.App.4th at pp. 1147-1148.)
Watkins's position is unavailing. She states the probate court "based its finding of extrinsic fraud solely on its determination that [Hill] was an 'ascertainable heir,' " argues Hill could not be an heir (because he would take nothing by intestate succession); and maintains he was not entitled to notice under sections 8110 or 11601.
First, we must clarify the basis for the probate court's ruling. The court used the term "reasonably ascertainable heir" at the evidentiary hearing, but its comments at that hearing make clear it was focused on the destroyed writing as the basis for Hill's claim. In its order denying Watkins's motion for reconsideration, the court confirmed its finding of extrinsic fraud was based on her destruction of the last will and her failure to notify Hill about the probate proceedings. Further, a "decision will be upheld even where it is based on an incorrect rule of law, as long as a sound legal basis for the decision exists." (Estate of Beard (1999) 71 Cal.App.4th 753, 776-777.)
Second, Watkins's focus on whether Hill was an heir is misplaced. There are other potential claimants in probate, besides intestate heirs. (See, e.g., Tulsa, supra, 485 U.S. at pp. 490-491 [creditors]; Estate of Starkweather (1998) 64 Cal.App.4th 580, 582-583, 594-594 [Department of Health Services, where decedent had received Medi-Cal benefits and department had right to recoup payments]; Broderson, supra, 247 Cal.App.2d at pp. 804-805 [state, where half of estate was due to state by escheat].) In light of the will in his favor, Hill was a known or reasonably ascertainable claimant entitled to notice. We need not address whether Hill also would have been entitled to notice as an heir under section 8110 and 11601.
Watkins cites "The McGovern Commentary," without a citation, for the proposition that under section 8110, notice need not be given to a devisee in a will not offered for probate. But notice may still be necessary, even if section 8110 does not apply. She also contends on reply that Hill concedes the only persons entitled to notice in this case are heirs and potential heirs. We do not view the cited portion of his brief as a concession; it appears Hill was simply discussing the notice required to heirs and devisees under section 8110.
Finally, even if Watkins believed Hill could not prevail with the last will in his favor, she impermissibly limited his opportunity to pursue that claim. The determination of entitlement "must ultimately be made by a court, not a self-interested petitioner for administration who has an incentive to 'find' against a potential and rival claimant." (Carter, supra, 111 Cal.App.4th at p. 1142.)
Watkins quotes Carter's observation that "[t]here are . . . bright lines which categorically rule out heirship," in contending Hill was not an heir. (Carter, supra, 111 Cal.App.4th at p. 1146.) That quotation is consistent with the principle that a judgment will not be set aside absent a meritorious claim. (McGuigan, supra, 83 Cal.App.4th at p. 652.) But Watkins merely assumes Hill could not recover under the last will, and provides no reasoned argument or authority to establish his claim would lack merit. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill) [" 'The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.' "].)
ii. Lack of notice
The record reflects Hill was not identified in the probate petition, did not receive notice of the petition to administer the estate or the hearing, and did not receive notice of the final report and petition for distribution. While Watkins made various statements to Hill about the will she planned to take to probate, her administration of the estate, and disposition of property, there is no evidence she communicated to Hill that he was entitled to participate in the probate proceedings, provided the kind of information found in the probate notices, or even gave him the case information. Hill testified he learned about the probate case after hiring an investigator. This evidence supports the probate court's finding that Hill did not receive notice.
Watkins's arguments are unpersuasive. First, she contends that "[a]ll the cases finding extrinsic fraud for failure to give notice involved active concealment," citing Carter, Sanders, and Tulsa. Carter and Sanders involved concealment from others, but only Sanders appeared to have involved misrepresentations, and neither held they were required for extrinsic fraud. (Sanders, supra, 40 Cal.3d at p. 612; see Carter, supra, 111 Cal.App.4th at pp. 1143-1144.) Tulsa did not involve extrinsic fraud, but rather adequacy of notice. (Tulsa, supra, 485 U.S. at pp. 482, 490-491 [executor had published notice to creditors; notice to known or reasonably ascertainable creditors was required].) And the California Supreme Court held long ago that active concealment from another claimant is not always necessary. (See Purinton v. Dyson (1937) 8 Cal.2d 322, 326 ["It is true that in most cases of extrinsic fraud the defendant has said something directly to the person whose rights were involved amounting to representations that it was not necessary for such person to take any part in the proceedings. . . . But the rule allowing the maintenance of an action in equity for extrinsic fraud should not be limited so strictly as to require as a basis evidence of representations made directly to the one defrauded."].)
(See also Stevens v. Torregano (1961) 192 Cal.App.2d 105, 123 [noting in dicta that "if the executor . . . knows of an heir, and withholds that information from the court, his doing so is extrinsic fraud"]; cf. McGuigan, supra, 83 Cal.App.4th at p. 651 ["[R]espondent need not have directly misled appellant. It is sufficient that respondent's suppression of the existence of a closer heir, in breach of her duty of disclosure under section 1355, misled the court and prevented any possibility of a fair adversary hearing over the right to the escheated estate."].)
Watkins concealed the situation from the court, first by destroying the last will and then failing to alert the court about it. Further, she arguably did conceal information from Hill, by telling him she destroyed the will (which, according to him, led him to think he had no claim) and then failing to provide the probate notices or substantive information about the probate case.
Second, Watkins contends due process was satisfied because Hill received actual notice. At most, her communications and other documents (e.g., the 1099 tax form) might have alerted him a will was being probated, not that he had a right to participate on the matters at issue. She does not establish this would constitute sufficient notice in the probate context. (See Estate of Jenanyan (1982) 31 Cal.3d 703, 709-710 [probate order "can be challenged for lack of notice where the order goes beyond the issues framed by the petition"; probate petition "must adequately inform interested parties of the issues that may be decided"]; Estate of Meyer (1953) 116 Cal.App.2d 498, 501-502 [even with actual notice of preprobate contest, person "cannot be said to have had such notice in time to have joined in the contest when he did not possess . . . a knowledge of his right to contest as an interested person"], italics omitted.)
We also reject her related contention that Hill "sat on his rights," in contrast to the Sanders claimants. This contention, and her other efforts to factually distinguish Sanders, are misguided. (Cf. Robison v. City of Manteca (2000) 78 Cal.App.4th 452, 458, fn. 5 ["The fact-specific nature of this inquiry means the underlying facts in [the case cited by the appellant] have little relevance"].) Further, the issue is whether Watkins provided notice to Hill, not whether he kept himself sufficiently apprised.
Watkins's reliance on Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306 (Mullane) is misplaced. Mullane, a trust case, held that publication was sufficient only for unknown beneficiaries. (Id. at pp. 317-318.) The Court explained, in part: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Id. at p. 314.) If anything, Mullane illustrates the inadequacy of Watkins's actions. She published notice of probate, but Hill was a known or reasonably ascertainable claimant, so this was insufficient. (See Tulsa, supra, 485 U.S. at p. 491.) Further, Watkins's communications with Hill were not reasonably calculated to apprise him of the probate proceedings and permit him to participate. Her other authorities are no more persuasive. She cites Espinosa v. United Student Aid Funds (9th Cir. 2008) 553 F.3d 1193, which found a creditor received actual notice of the bankruptcy and that "actual notice satisfies due process." (Id. at p. 1203.) Hill did not receive actual notice. She also cites Germino v. Hillyer (2003) 107 Cal.App.4th 951, 955 (itself citing Civ. Code, § 3532) for the proposition that " '[t]he law neither does nor requires idle acts.' " Notice to a potential claimant in probate is no idle act.
iii. Existence of extrinsic fraud
Whether focusing specifically on Watkins's lack of notice to Hill, or her conduct in its entirety (including disposal of the last will and failure to apprise the court of the situation), the record reflects those actions prevented Hill from pursuing his claim to Sullivan's estate. We conclude there is substantial evidence that the probate orders were made on the basis of extrinsic fraud.
C. Watkins Does Not Establish Hill's Motion was Procedurally Defective
Watkins contends the probate court should have denied Hill's motion to vacate on procedural grounds, arguing (1) the 120-day deadline for a petition to revoke had expired; (2) he failed to meet the requirements of Code of Civil Procedure sections 659a, 663, and 663a; and (3) he failed to establish grounds for relief under Code of Civil Procedure section 473, subdivision (b). These arguments lack merit.
First, Watkins argues that under Probate Code section 8270, a proceeding to revoke probate must be commenced within 120 days of admission of the will to probate, and Hill's motion was not. She also states, "courts have an interest in the finality of probate proceedings," citing Civil Code section 3527. (Ibid. ["The law helps the vigilant, before those who sleep on their rights"].) But, as Watkins concedes, extrinsic fraud is grounds for setting aside probate after the 120-day deadline. (Sanders, supra, 40 Cal.3d at pp. 613-614.) The probate court was aware of Hill's delay, nevertheless concluded extrinsic fraud occurred here, and the record supports that determination.
Watkins also contends the motion should have been denied because it was not a verified petition, citing section 8270 (and section 1020), and Superior Court of San Diego County, Local Rule 4.23.1. Section 8270 lets a person "petition the court" to revoke probate, and refers to "the petition," but does not preclude the term "motion." The local rule requires applications based on the Probate Code to be brought as a petition and those under the Code of Civil Procedure or Civil Code to be brought as a motion. Hill's request was based on Code of Civil Procedure section 473 or extrinsic fraud, so a motion was appropriate (or at least not precluded). Further, his declaration was under penalty of perjury. (See § 1020 [verification generally "shall constitute signature"]; Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1088 [petition was "verified in the form of [a] declaration[] under penalty of perjury"].) In any event, Watkins does not establish noncompliance on these grounds would bar relief due to extrinsic fraud.
Second, Watkins relies on the notice and timing requirements for new trials and motions to set aside judgment. (Code Civ. Proc., §§ 659a [notice of motion for new trial]; 663 [motion to set aside judgment]; 663a [notice of intention to move to set aside judgment].) However, Hill did not rely on these statutes as a basis for his motion, and the probate court did not rely on them in granting relief. Watkins contends the deadlines under these statutes are jurisdictional, citing Garibotti v. Hinkle (2015) 243 Cal.App.4th 470. Garibotti did not involve extrinsic fraud, and is otherwise distinguishable. (Id. at pp. 474-475 [contractor successfully moved to vacate default judgment; reversing because trial court failed to rule within statutory period under § 663a].) Watkins does not establish these statutes apply here.
Finally, Watkins argues that, although the probate court based its ruling on extrinsic fraud, Hill sought relief under Code of Civil Procedure section 473, subdivision (b) and failed to satisfy its documentation and timing requirements. Watkins does not establish error. Relief can be granted either under the court's equitable power or under Code of Civil Procedure section 473 (Carter, supra, 111 Cal.App.4th at p. 1149), the court indicated its ruling was based on extrinsic fraud, and the record supports it. We recognize Hill purported to rely on Code of Civil Procedure section 473, and did not expressly address extrinsic fraud in his motion. But he did describe Watkins's conduct as fraud and address the pertinent issues (e.g., failure to provide notice), and then, in his reply papers, did argue that extrinsic fraud occurred here. And the probate court recognized Hill's motion implicated extrinsic fraud when it set the evidentiary hearing. To the extent Watkins is suggesting the probate court's review for extrinsic fraud was limited by the grounds stated in Hill's papers, she provides no authority for this position.
Even if the court had granted relief under Code of Civil Procedure section 473, our review would be for abuse of discretion. (Carter, supra, 111 Cal.App.4th at p. 1154 [when court acts under Code Civ. Proc., § 473, abuse of discretion review applies].) Watkins does not contend, much less establish, the court abused its discretion here.
III
DISPOSITION
The order is affirmed. Hill is awarded costs on appeal.
NARES, J. WE CONCUR: McCONNELL, P. J. GUERRERO, J.