Opinion
B322779
05-02-2024
Estate of CATHEY LEE PINCKNEY, Deceased. v. PATRICIA STEPHENSON, Objector and Respondent. KIM BLAKE, Contestant and Appellant,
Schindler Eyrich and John F. Eyrich; Law Offices of James Lambert Leestma and James L. Leestma for Contestant and Appellant. Lurie, Zepeda, Schmalz, Hogan &Martin, Steven L. Hogan, Aaron J. Gigliotti and Rachel J. Kartin for Objector and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 18STPB05285 Michael C. Small, Judge. Affirmed.
Schindler Eyrich and John F. Eyrich; Law Offices of James Lambert Leestma and James L. Leestma for Contestant and Appellant.
Lurie, Zepeda, Schmalz, Hogan &Martin, Steven L. Hogan, Aaron J. Gigliotti and Rachel J. Kartin for Objector and Respondent.
HOFFSTADT, J.
After a 67-year-old woman died, the executor and sole beneficiary of her will successfully petitioned for probate of the will. More than seven months after the will was admitted to probate, the woman's estranged uncle filed a petition contesting the will. Following an evidentiary hearing, the probate court denied the uncle's petition as untimely. This was correct, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Parties
Cathey Lee Pinckney (Cathey Lee) died at the age of 67 on May 15, 2018.
Because two of the individuals involved in this case have the same last name, we use their first names for clarity's sake. We mean no disrespect.
At the time of her death, Cathey Lee's only living relative was a paternal uncle named Neal Pinckney (Uncle Neal). Uncle Neal was around 82 years old at the time of Cathey Lee's death. Cathey Lee had not seen or spoken with Uncle Neal since she was a toddler, back in 1952.
On October 20, 2017, a will for Cathey Lee was executed. The will named Patricia Stephenson (Stephenson) as the executor, and left Stephenson everything. Stephenson was not related to Cathey Lee by blood, and the will characterized her as Cathey Lee's "very dear and loyal friend." The will bore the signatures of two witnesses-namely, (1) Eric Moss, and (2) Robin W. Behrens.
There is reason to suspect the will is a fraud. Both Moss and Behrens-who were employees of Stephenson's limousine business-later disclaimed that they witnessed the will's execution. What is more, handwriting experts disagreed over whether the signature on the will was Cathey Lee's.
At the time of Cathey Lee's death, her estate was worth a little more than $3 million, comprised mostly of a home in Beverly Hills with an estimated value of $2.5 million.
II. Stephenson Probates the Will
On June 7, 2018, Stephenson petitioned the probate court to admit the will into probate and authorize her to administer the will. Stephenson subsequently filed two supplements to her petition explaining her efforts to locate any heirs of Cathey Lee.
Stephenson knew that Cathey Lee had an uncle, but did not know if he was still alive, did not know his name, and did not know his current address. Stephenson searched Cathey Lee's home and found no evidence of any living relatives. Stephenson's attorney considered hiring an "official heirship firm" to look for possible relatives, but ultimately decided to run a search on PeopleFinders; the PeopleFinders search did not reveal Uncle Neal.
As a result, Stephenson's petition alleged that Cathey Lee "was survived by no known next of kin," and she did not provide notice of her petition to any specific individual. However, Stephenson published notice of the petition in two Los Angeles County-based publications-namely, the Metropolitan News and the Beverly Hills Weekly. Uncle Neal resided in Hawaii, where he had lived since 1987.
On July 10, 2018, the probate court admitted the will into probate. On July 23, 2018, the court issued letters testamentary appointing Stephenson as Cathey Lee's personal representative.
III. Uncle Neal Learns of the Will's Probate and Possible Infirmities with the Will by September 2018
In August 2018, Charles Jerome Broquard (Broquard) learned of Cathey Lee's will and Stephenson's role in admitting it to probate and administering it. Broquard had been Stephenson's roommate, but they had a falling out after Stephenson told Broquard's former wife that Broquard had been molesting their teenage son. Broquard was also convicted of felony fraud, had a civil judgment for extortion entered against him, and owed $1 million in back taxes.
Grinding his proverbial axe, Broquard immediately started to investigate the legitimacy of the will Stephenson had admitted to probate. He contacted Moss and Behrens, the purported witnesses to the will's execution, and drafted their declarations disclaiming they had ever witnessed the will's execution. Behrens received phone calls from an "heir hunter"-likely Broquard-explaining the hunter was acting on behalf of the heirs to Cathey Lee's estate, and in one call around Labor Day 2018, the caller specifically identified Uncle Neal.
IV. Uncle Neal Files a Post-Probate Petition to Challenge the Will
A. Pleadings
On February 15, 2019, Uncle Neal filed a petition challenging the will based on 14 different claims. Attached to the petition was a genealogical chart Broquard had prepared. Uncle Neal also petitioned for successor letters of administration to name his attorney as Cathey Lee's personal representative. That attorney had been referred to Uncle Neal by Broquard.
Specifically, Uncle Neal alleged claims for (1) revocation of the order probating the will, (2) fraud, (3) forgery, (4) malicious prosecution, (5) undue influence, (6) elder abuse, (7) constructive trust, (8) removal of Stephenson as a fiduciary, (9) the filing of an inventory and appraisal, (10) determination of his entitlement to the estate, (11) an accounting, (12) attorney fees and costs, (13) double damages, and (14) treble damages.
Stephenson responded with a demurrer and a motion to strike, partially on the ground that Uncle Neal had not filed his petition within the 120-day window for post-probate challenges to wills set forth in Probate Code section 8270. Uncle Neal opposed both motions in May 2019, and in both oppositions stated that he had "unearthed" the evidence of the will's invalidity "8 months" earlier, which would have been September 2018. The probate court sustained the demurrer due to Uncle Neal's seeming concession that he knew about the will's defects within the 120-day window. Except for striking or otherwise dismissing the claims for malicious prosecution and for double and treble damages, the court granted Uncle Neal leave to amend.
All further statutory references are to the Probate Code unless otherwise indicated.
On June 14, 2019, Uncle Neal filed an amended petition. This petition alleged claims (1) to contest the will, (2) for fraud, (3) for undue influence, and (4) for elder abuse. Uncle Neal and his attorney attached declarations indicating that the representation in the prior oppositions about "unearth[ing]" the will's possible invalidity in September 2018 were incorrect.
Stephenson once again responded with a demurrer, this time arguing that Uncle Neal's attempt to distance himself from his prior representation rendered the amended petition a "[s]ham [p]leading." Following a full round of briefing and a hearing, the probate court overruled the demurer after concluding that the timeliness of Uncle Neal's claims could not be decided on the face of the pleadings.
The court accordingly set the matter for an evidentiary hearing limited to the issue of the timeliness of Uncle Neal's petition.
B. Evidentiary hearing
In a joint trial statement, the parties further narrowed the timeliness issue to the following question: Did Uncle "Neal ha[ve] knowledge about the pending Estate during the 120[-]day period" following the entry of the will into probate (that is, prior to November 7, 2018)? If Uncle Neal had "actual notice" or knowledge of the probate proceeding, the statement explained, then he would have had "an opportunity to [c]ontest the [w]ill within the statutory time limit" for post-probate challenges, which would render "any extrinsic fraud" based on Stephenson's failure to give notice "immaterial."
The parties actually listed the date as November 20, 2018, which was 120 days after the letters testamentary had been issued. However, as discussed below, that is the wrong date under the law. We have inserted the correct date here to avoid confusion.
The probate court conducted the evidentiary hearing over four days in January and February 2021. Uncle Neal, Broquard, and Behrens testified. After the court issued a tentative statement of decision, Uncle Neal asked to reopen the hearing to allow for the testimony of a second "heir hunter" who had spoken with Uncle Neal in January 2019. The court granted the request, and heard additional testimony in February 2022.
C. Ruling
On April 13, 2022, the probate court issued a 16-page final statement of decision. The court found that Uncle Neal "was aware of the proceedings to administer Cathey Lee's estate prior to November [7], 2018 and thus within the 120-day period set forth in Section 8270." The court listed several reasons for its finding, including that (1) Uncle Neal was working with an "heir hunter"-likely Broquard-who knew of the forged witness signatures as early as Labor Day 2018; (2) Broquard had devoted months of effort and money to obtain evidence of the forgeries starting in August 2018, something that Broquard would have had no incentive to do unless he already had located an heir (namely, Uncle Neal) with standing to inherit Cathey Lee's estate and to then compensate the heir hunter a percentage (here, a 35-percent contingency that would clear Broquard's back taxes); and (3) Uncle Neal was the first to "reference[] Cathey Lee's estate by name" during a January 2019 call with the second "heir hunter."
V. Appeal
Uncle Neal filed this timely appeal.
Uncle Neal died while the appeal was pending, and Kim Blake, as his "Successor Trustee," was substituted to prosecute the appeal.
DISCUSSION
Uncle Neal argues that the probate court erred in denying as untimely his challenge to Cathey Lee's will. Because he repeatedly disclaims any challenge to the court's factual findings, we will treat those findings as undisputed. As a result, all that remains are questions of law (including questions of statutory interpretation) and the application of that law to undisputed facts; our review of such questions is de novo. (Tsasu LLC v. U.S. Bank Trust, N.A. (2021) 62 Cal.App.5th 704, 715.)
I. Pertinent Law
After a person dies, any "interested person" can seek to admit the decedent's will into probate. (§ 8000, subd. (a); Bailey v. Bailey (2023) 96 Cal.App.5th 269, 272; see generally § 48 [defining "interested person"].) A probate proceeding is an in rem proceeding, defined by statute, where the "res" over which the probate court acquires jurisdiction is "the right of heirship and distribution." (Estate of Wise (1949) 34 Cal.2d 376, 383-384; Murray v. Superior Court (1929) 207 Cal. 381, 385.) Because it is an in rem proceeding, resolution of the probate proceeding is "binding on the whole world," including persons who did not participate in the proceeding. (Wise, at pp. 384-385; Estate of Blythe (1895) 110 Cal. 231, 233; Schaffer v. American Trust Co. (1958) 164 Cal.App.2d 653, 658.) Because the proceeding is defined by statute, it is also delimited by statute: Probate proceedings only have their full effect if the applicable statutory procedures are followed. (Wise, at p. 381; Farmers &Merchants Nat. Bank v. Superior Court (1945) 25 Cal.2d 842, 845; Estate of Collins (1968) 268 Cal.App.2d 86, 90 (Collins).)
In addition to filing a petition to admit a will into probate, an interested person must also (1) "deliver notice," either "by mail or personal delivery," to "[e]ach heir" or person "who reasonably might be [an] heir[]" "of the decedent, so far as known to or reasonably ascertainable by the petitioner" (§ 8110, subd. (a); Estate of Kelly (2009) 172 Cal.App.4th 1367, 1374 (Kelly); Estate of Carter (2003) 111 Cal.App.4th 1139, 1141-1142); and (2) give notice of the proceeding by publication (§ 8120 et seq.). (See generally Kelly, p. 1374.)
A will may be contested either (1) before a court admits the will to probate (§§ 8250-8254), or (2) after it does so (§§ 82708272). (See generally Estate of Scott (1963) 217 Cal.App.2d 111, 116; Collins, supra, 268 Cal.App.2d at p. 90; Estate of Moss (2012) 204 Cal.App.4th 521, 523-524, 535-536 (Moss).)
When an interested person seeks to challenge a will after it has been admitted to probate, section 8270 erects two potential procedural hurdles to the challenge. In pertinent part, section 8270 provides:
"Within 120 days after a will is admitted to probate, any interested person, other than a party to a will contest and other than a person who had actual notice of a will contest in time to have joined in the contest, may petition the court to revoke the probate of the will."
(§ 8270, subd. (a), italics added.)
The first hurdle, which is represented by the italicized language, erects a total bar to any challenge brought by someone who was a party to a will contest that occurred before the will was probated or who knew about that pre-probate contest and had a reasonable time to prepare to join in but opted not to do so. (Estate of Meyer (1953) 116 Cal.App.2d 498, 501-502, 503 (Meyer).) This hurdle is designed both to prevent persons who were parties from relitigating a challenge and to prevent persons who were not parties but who knew about the pre-probate contest from "waiting and seeing" how the pre-probate contest plays out and then taking a second bite at the apple afterwards. (Meyer, at pp. 500-501; Moss, supra, 204 Cal.App.4th at pp. 537, 540; Estate of Robinson (1961) 192 Cal.App.2d 847, 855.)
This bar does not apply if the pre-probate will contest was dismissed (and hence not litigated on the merits) (Estate of Hoover (1934) 139 Cal.App. 753, 759-760; Moss, supra, 204 Cal.App.4th at p. 536), or if the pre-probate will contest was not completed prior to the probating of the will (Estate of Horn (1990) 219 Cal.App.3d 67, 69-70 (Horn)).
The second hurdle, which is represented by the nonitalicized language, erects a 120-day statute of limitations that starts to tick once the will is admitted to probate. Our Legislature has progressively shortened the limitations period to the 120 days it is now: The statute that gave rise to section 8270 originally had a one-year limitations period (Stats. 1901, ch. 102, § 304, p. 202 [amending Code Civ. Proc., § 1327]); that period was shortened to 180 days in 1929 (which was then recodified through 1969) (Stats. 1929, ch. 495, § 2, p. 860 [amending Code Civ. Proc., § 1327]; Stats. 1931, ch. 281, pp. 605 [enacting § 380]); and it was shortened to 120 days in 1970 (Stats. 1969, ch. 124, § 1, p. 270 [amending § 380]; Stats. 1988, ch. 1199, §§ 42, p. 3898, 81.5, p. 3940 [replacing § 380 with § 8270]; Stats. 1990, ch. 79, §§ 13, 14, p. 756 [repealing and reenacting § 8270]). (See also Meyer, supra, 116 Cal.App.2d at pp. 500-501.) The imposition and then shortening of the limitations period both reflects and effectuates the "pervasive and dominant judicial and legislative theme that probate matters must be expeditiously handled to effect a prompt distribution of property to the decedent's designated beneficiaries and to avoid unnecessary delay and expense." (Horn, supra, 219 Cal.App.3d at p. 71.)
This period is extended to "any time before entry of an order for final distribution" for persons who, at the time the will was admitted to probate, were minors or incompetent if they had no guardian or conservator. (§ 8270, subd. (b).) Although Uncle Neal at one point asserted that he was incompetent, he did not pursue that assertion and does not renew it on appeal.
Because the 120-day limitations period is "jurisdictional" (Wolfson v. Superior Court (1976) 60 Cal.App.3d 153, 160), an order admitting a will to probate becomes "final" and "conclusive" and cannot be "collaterally attacked" by a post-probate challenge once the 120-day period expires. (§ 8226, subd. (a) [admission of will to probate is "conclusive" but "subject to Section 8007"]; § 8007, subd. (a); Estate of Sanders (1985) 40 Cal.3d 607, 613 (Sanders); Weir v. Snow (1962) 210 Cal.App.2d 283, 291-292 (Weir).) This general rule of conclusiveness has two statutory exceptions. First, a court must entertain an untimely postprobate challenge if the decedent is not actually dead (because, in that instance, the court lacks any in rem jurisdiction over a living person's estate). (§ 8007, subd. (b)(2); Estate of Lee (1981) 124 Cal.App.3d 687, 692.) Second, and as relevant here, a court must entertain an untimely post-probate challenge-that is, a court must entertain a "collateral[] attack[]"-if the order admitting the will to probate was "procure[d]" by "extrinsic fraud." (§ 8007, subds. (a) & (b)(1).)
"Extrinsic fraud" exists when a challenger has, by "extrinsic circumstances," been "prevented . . . from presenting his case to the court" and has thereby been "deprive[d]" of a "fair adversary hearing." (Sanders, supra, 40 Cal.3d at p. 614; In re Marriage of Park (1980) 27 Cal.3d 337, 342; Estate of Crisler (1948) 83 Cal.App.2d 431, 434 (Crisler); Hudson v. Foster (2021) 68 Cal.App.5th 640, 664 (Hudson); cf. Estate of Robinson (1942) 19 Cal.2d 534, 539.) "Extrinsic circumstances" are present when an adversary or someone else "purposely keep[s the challenger] in ignorance of the" proceeding or otherwise "keep[s]" the challenger "away from the court." (Zaremba v. Woods (1936) 17 Cal.App.2d 309, 317; Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1044; Knox v. Dean (2012) 205 Cal.App.4th 417, 425-426 (Knox); Caldwell v. Taylor (1933) 218 Cal. 471, 480).
To obtain relief from section 8270's time bar, it is not enough to show "extrinsic circumstances"-that is, that the challenger was kept in ignorance or away from court. The challenger must also show that they (1) "'ha[ve] a meritorious case,'" and (2) "'exercised diligence in seeking to set aside'" the order to be challenged. (Hudson, supra, 68 Cal.App.5th at p. 664.) The second additional requirement means that the challenger must show that the extrinsic fraud-rather than their own lack of diligence-is what prevented them from participating in the proceeding. Thus, where a party has actual knowledge or actual notice of the proceeding prior to the expiration of a limitations period (and, hence, when they still have a right and ability to participate), that party cannot sidestep the limitations period on the basis of extrinsic fraud because, in that instance, their lack of participation was not due to the extrinsic fraud but rather their own inaction. (Weir, supra, 210 Cal.App.2d at pp. 291-292 [plaintiff who had "actual notice" of proceedings cannot invoke "extrinsic fraud" doctrine]; Washko v. Stewart (1941) 44 Cal.App.2d 311, 318 [same]; Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 49 [same]; Knox, supra, 205 Cal.App.4th at p. 427 [same]; O'Brien v. Markham (1940) 37 Cal.App.2d 381, 393 [party who had "actual knowledge" of proceedings cannot invoke "extrinsic fraud" doctrine]; see generally Granzella v. Jargoyhen (1974) 43 Cal.App.3d 551, 556 ["'if the aggrieved party is aware of the proceeding, and is not prevented from appearing, any fraud is intrinsic and not a basis for equitable relief'"].) This rule accords with the policy underlying the extrinsic fraud exception, which "balance[s] the public policy in favor of the finality of judgments with the policy in favor of providing litigants a fair opportunity to present a case" (Hudson, at p. 663), because a litigant who knows of the proceeding but elects not to participate had a fair opportunity to present their case but simply elected not to do so.
II. Analysis
We independently conclude that the trial court's ruling finding Uncle Neal's post-probate challenge to the will untimely is correct. Because this case did not involve any pre-probate challenges to the will, the only hurdle posed by section 8270 is the 120-day limitations period. It is undisputed that Uncle Neal's February 2019 petition was untimely because the 120-day period expired on November 7, 2018-which is 120 days after the July 10, 2018 order admitting the will to probate. Because it is also undisputed that Cathey Lee is deceased, the only available exception to the 120-day period is extrinsic fraud. Whether or not there was extrinsic fraud, the probate court found that Uncle Neal actually knew of the probate proceeding prior to November 15, 2018-and hence prior to the expiration of the 120-day limit. Uncle Neal does not challenge that finding on appeal. As a result, he cannot rely on the extrinsic fraud doctrine and his postprobate petition was properly denied as untimely.
Uncle Neal resists this analysis with what boils down to four arguments.
First, he argues that the probate court misconstrued section 8270, thereby "legislat[ing] from the bench." We agree that the probate court, in its final statement of decision, phrased the core issue in a manner that is slightly different from our analysis: The probate court found that Uncle Neal's awareness of the probate proceeding meant he was "within the 120-day period set forth in Section 8270"; we are concluding that Uncle Neal's awareness of the probate proceeding precludes him from relying on the doctrine of extrinsic fraud, which means that the extrinsic fraud exception to section 8270's 120-day limitations period does not apply. The different phrasing is a direct result of how the parties teed up the issue below. More importantly, any variation between our analysis and the probate court's analysis is irrelevant. The probate court asked the right factual question- namely, what did Uncle Neal know prior to the expiration of the 120-day limitations period? Where that question fits into the legal analysis goes solely to the probate court's rationale. Because our job is to review the court's ruling and not to grade its reasoning (People v. Zapien (1993) 4 Cal.4th 929, 976), Uncle Neal's criticisms of the probate court's rationale provide no basis for overturning its ruling.
Stephenson asserts that Uncle Neal's attempt to phrase the issue differently on appeal is barred by the doctrines of forfeiture, invited error, and something called "theory of the case" (which appears to be something invented by a treatise). Uncle Neal responds that Stephenson invited error. This retort is silly: Stephenson is not complaining of any error, so certainly could not have invited it. Contrary to what Uncle Neal suggests, the doctrine of invited error is not like the playground jibe of rubber and glue-it does not bounce off one party and stick to the other. For the reasons noted above, we elect to sidestep the procedural bars Stephenson seeks to invoke by addressing the merits of Uncle Neal's arguments on appeal.
Second, Uncle Neal argues that the exception to the extrinsic fraud doctrine that applies when a challenger has actual notice or knowledge requires more than the challenger's awareness of the ongoing proceeding. He offers two variants of this argument. Specifically, and as applied here, he asserts that, to preclude application of the extrinsic fraud doctrine, the challenger (1) must be aware of the probate petition, instead of merely being aware of just the probate proceeding; and/or (2) must be aware (a) of the will, (b) that the decedent had no other heirs, (c) of the circumstances under which the party seeking probate procured that probate, (d) of the evidence supporting the substantive basis for challenging the will (which, in this case, was that the signatures of Cathey Lee and the witnesses were forgeries), and (e) of all essential facts pertinent to the existence of extrinsic fraud (including failure of the party who sought probate to properly notify the challenger of the proceeding).
We reject this argument.
The first variant of Uncle Neal's argument lacks merit because we do not perceive any distinction between being aware of a probate proceeding and being aware of the probate petition where, as here, the petition is how a proceeding is instituted. Uncle Neal provides no explanation for this distinction, and we decline to engage in such hair splitting. In support of this variant, he cites Kelly, supra, 172 Cal.App.4th 1367 for the proposition that it is not enough for a party to receive "notice of the probate proceedings generally" and that the party must also "receive[] notice of the petition for letters of administration." (Id. at p. 1374.) But Kelly is irrelevant. That case construed section 8226, subdivision (c), which sets time limits for probating a will after a prior will or prior distribution of property, but those limits only apply "[i]f the proponent of [that new] will received notice of a petition for probate or a petition for letters of administration for a general personal representative." (§ 8226, subd. (c), italics added.) Kelly's holding that "notice" of the "probate proceedings generally" is insufficient does no more than enforce the statutory mandate requiring notice of "the petition." What is at issue here, however, is whether Uncle Neal's awareness of the proceeding severs the causal connection between any extrinsic fraud by Stephenson and Uncle Neal's inability to file a timely challenge; that issue turns on his awareness of facts that would cause a "reasonably prudent person [to] suspect wrongdoing," where the wrongdoing is existence of the proceeding of which the person was not notified or is being prevented from joining. (Hudson, supra, 68 Cal.App.5th at p. 648; see also id. at p. 668 ["suspicio[n] of wrongdoing" triggers "duty to investigate"].) We see no reason to alter the longstanding elements defining the extrinsic fraud doctrine on the basis of a statute dealing with a wholly different issue.
We understand Uncle Neal's tactical reason for asking us to draw this distinction-that is, because the probate court amply found that he was aware of the proceeding, so he is trying to avoid the impact of that finding by moving the goal post to require a finding that he be aware of the petition.
The second variant of Uncle Neal's argument lacks merit for much the same reason. Because, as noted above, the extrinsic fraud doctrine is inapplicable if the person invoking it is aware of the facts that give rise to a suspicion of wrongdoing, the challenger need not know all the details of the proceeding and have lined up all the evidence necessary not only to show extrinsic fraud but also to prevail on the merits. (Crisler, supra, 83 Cal.App.2d at p. 434 ["[e]xtrinsic fraud has been defined as that which has prevented a contestant from presenting his case to the court" rather than the merits of what he would have shown].) Because Uncle Neal does not dispute that the evidence in this case supports the reasonable inference that he knew as early as Labor Day 2018 that there was a probate proceeding of which he was not personally notified, that is sufficient; even if we were to ignore this law and indulge Uncle Neal's argument that the challenger must also be aware of the substantive merit of his challenge to the will, Uncle Neal does not dispute the trial court's finding that he knew, by November 2018, that Broquard was building a case for Uncle Neal to "challeng[e] the will." The authority Uncle Neal cites in support of this argument is also inapt. He points to the language in section 8270 regarding "person[s] who had actual notice of a will contest in time to have joined in the contest" (§ 8270, subd. (a)), but that language-as explained above-deals with section 8270's bar when there has been a pre-probate will contest; it is irrelevant here, where there has been no such challenge.
Third, Uncle Neal argues that there is "no evidence" that he actually knew about Stephenson's petition (which, as discussed above, is synonymous with the proceeding) "prior to January 15, 2019." We reject this argument for two reasons. To begin, it is inconsistent with his disclaimer that he is not raising a substantial evidence challenge to the probate court's factual finding that he knew about the probate proceeding within the 120-day window. More to the point, Uncle Neal's argument is wrong on the merits. Uncle Neal points to his testimony and Broquard's testimony from the evidentiary hearing, where they testified that Uncle Neal first learned of the will contest in midJanuary 2019. However, the probate court found Uncle Neal's testimony on this point not to be credible based on its contradiction with the testimony of the second "heir hunter" and on Uncle Neal's admittedly poor memory, and found Broquard's self-serving testimony on this point not to be credible based on his personal animosity toward Stephenson, his lack of credibility as a prior felon, and other reasons. We are not in a position to second-guess the probate court's credibility findings. (In re Caden C. (2021) 11 Cal.5th 614, 640.) What is more, there is substantial evidence to the contrary-namely, Behrens's testimony that the "heir hunter" who called him and knew about the forged signatures and mentioned Uncle Neal as far back as Labor Day 2018 created a reasonable inference of Uncle Neal's knowledge at that point in time.
Uncle Neal also indicates that Stephenson had the burden of establishing the time bar under section 8270. She carried that burden because the bar does not turn on anyone's awareness. The pertinent question is thus whether Uncle Neal can show the applicability of the extrinsic fraud doctrine as an exception to section 8270, a question on which he would seem to bear the burden. However, as described in the text, Uncle Neal does not dispute that the evidence of his awareness is ample enough that the burden of proof-which is used as a tie-breaker when the evidence is in equipoise in a civil case-does not come into play.
Fourth and finally, Uncle Neal argues that there was insufficient evidence of extrinsic fraud and that the probate court erred in denying him discovery on the question of extrinsic fraud. There was no error. As explained above, the parties and the probate court focused the evidentiary hearing on the question of whether Uncle Neal was aware of the probate proceeding involving Cathey Lee's will during the 120-day window when Uncle Neal could still file a post-probate challenge to that will. Because, as explained above, his actual awareness of a proceeding would render the extrinsic fraud doctrine inapplicable (because any lack of participation would be due to his inaction rather than any extrinsic fraud), the probate court's (mostly) unchallenged finding that Uncle Neal had that awareness renders the question of whether there was extrinsic fraud irrelevant: If there was not extrinsic fraud, then Uncle Neal would not be entitled to relief; and if there was extrinsic fraud, Uncle Neal's actual awareness of the proceeding would preclude the application of the extrinsic fraud doctrine. Indeed, the whole point of narrowing the evidentiary hearing to the very specific issue of Uncle Neal's awareness was-as the parties' joint statement itself explained-aimed at the question of awareness first because the answer to that question might obviate the need to reach the more complicated question of whether extrinsic fraud existed. Uncle Neal's attempt to unravel the litigation plan he agreed to below is as duplicitous as it is meritless.
DISPOSITION
The order is affirmed. Stephenson is entitled to her costs on appeal.
We concur: ASHMANN-GERST, Acting P. J., CHAVEZ, J.