TURNER, P. J.
Craig E. Caldwell, II, plaintiff, appeals from an order denying his Code of Civil Procedure,
The living trust was created by plaintiff's paternal grandfather, William M. Caldwell III ("William"
On August 2, 2005, Retired Judge Edward Ross, the then successor trustee, filed a Probate Code section 17200 petition for an order determining the distribution of residue in compliance with terms of the no contest clause and ascertaining residuary beneficiaries. The petition sought an order that, if forfeiture was found under the no contest clause, the forfeited shares would be distributed to Bill and Ms. Smith in equal one-half shares. The petition was served on Mr. Caldwell at a Rolling Hills, California address. Service was also made on Kelly Caldwell at the Rolling Hills address. Ms. Caldwell is Mr. Caldwell's daughter. In addition, the petition was served on Kathleen Giordano, who is the mother of plaintiff and Ms. Caldwell. The proof of service identifies Ms. Giordano as "the mother of" minors.
Mr. Caldwell objected to the petition to determine residuary beneficiaries. The former successor trustee then moved for judgment on the pleadings. The former successor trustee asserted the no contest issue was established by admissions in Mr. Caldwell's own pleadings. It was also argued that no trial was necessary to determine the forfeiture and residuary beneficiary issues. The proof of service does not show plaintiff was served with the judgment on the pleadings motion.
On December 30, 2005, Judge Aviva Bobb entered an order granting the judgment on the pleadings motion finding Mr. Caldwell violated the no contest clause. Judge Bobb also vacated the hearing on the successor trustee's Probate Code section 17200 petition. On February 7, 2006, Mr. Caldwell filed a notice of appeal from the December 30, 2005 order granting judgment on the pleadings.
In July 7, 2006, while the appeal of December 30, 2005 order was pending, Judge Bobb entered an order nunc pro tunc determining Bill and Ms. Smith were the sole residuary beneficiaries. The successor trustee was directed to distribute the residue of the trust to Bill and Ms. Smith in one-half interests in accordance with the August 2, 2005 distribution petition.
A July 12, 2006 minute order provides the July 7, 2006 order was entered nunc pro tunc to December 30, 2005, the date on which the judgment on the pleadings motion was granted. The reporter's transcript for July 12, 2006, reflects that counsel for the former successor trustee, Bill, Mr. Caldwell and Ms. Smith were present. Dorothy Wolpert, who represented the former successor trustee, stated that the July 7, 2006 order was "in effect" nunc pro tunc and related back to the judgment on the pleadings order. Due to the pending appeal from the judgment on the pleadings, Alan Yoshitake, Bill's counsel, suggested the probate court enter the order nunc pro tunc so as to avoid the possibility of separate appeals. Counsel for Mr. Caldwell, Susan Cooley, did not object to entry of the order nunc pro tunc. Notice of entry of the July 2006 nunc pro tunc orders was mailed to plaintiff, as "a minor" to Ms. Giordano's address. On December 20, 2006, we affirmed the probate court's finding Mr. Caldwell had violated the no contest clause of the living trust and forfeited his interest in its assets. (Ross v. Caldwell (Dec. 20, 2006, B189273) [nonpub. opn.].) Notwithstanding a stipulation between the parties, we also concluded that the appeal from the December 30, 2005 order did not include the subsequently entered July 7, 2006 order. This was because, despite the probate court's "view" that the order related back to the December 30, 2005 order, the notice of appeal from the December 30, 2005 judgment on the pleadings order did not (nor could it be construed to) include the July 7, 2006 order.
On January 8, 2007, Mr. Caldwell filed a motion to vacate the July 7, 2006 order. Bill and Ms. Smith opposed the motion to vacate on the grounds Mr. Caldwell lacked standing to challenge the disinheritance order. Bill and Ms. Smith reasoned Mr. Caldwell was no longer a trust beneficiary and thus had no standing to challenge the distributions order. It was further argued Mr. Caldwell could not assert any argument of behalf of his adult children, who had chosen not to file any objections to the distribution petition.
On January 26, 2007, plaintiff, acting in propria persona filed a document entitled, "Joinder in Motion and Appearance." The document joined in Mr. Caldwell's motion to vacate the July 6, 2007 disinheritance order. Plaintiff used his mother's address on the joinder.
Mr. Caldwell's motion to vacate the disinheritance order was denied on February 16, 2007. On February 13, 2007, Mr. Caldwell filed a notice of appeal from the order denying his motion to vacate. On April 23, 2007, plaintiff, on his own behalf, filed a joinder in Mr. Caldwell's appeal. Plaintiff's appeal was initially assigned a separate appeal number but was consolidated with Mr. Caldwell's case. On June 28, 2007, plaintiff's appeal was dismissed under former rule 8.100(f)(3) of California Rules of Court. (Caldwell v. Ross (June 25, 2007, B197707) [nonpub. order].) Mr. Caldwell's appeal was dismissed on November 26, 2007 for lack of standing due to the violation of the no contest clause. (Caldwell v Ross (Nov. 26, 2007, B197707) [nonpub. order].) The remittittur issued on Mr. Caldwell's appeal on February 28, 2007.
On March 10, 2010, plaintiff filed the current motion to set aside the December 30, 2005 and July 6, 2006 orders. Plaintiff asserted: the two orders violated his due process right when they were entered without notice; he was an indispensable party to the residue of the trust; the probate court lacked jurisdiction to enter the disinheritance orders while the appeal was pending from the judgment on the pleading order; and the distribution order was not entered to correct clerical error exceeding the permissible scope of a nunc pro tunc order. In support of the motion, plaintiff declared that he was 18 years old in September 2000. This is when, William, plaintiff's grandfather, died. Plaintiff is the beneficiary of the education trust. At all times between August 15, 2001, and January 2007, plaintiff lived in and was a resident of the State of Arizona, where he attended the University of Arizona. In August 2004, he purchased a home in Tucson, Arizona. He still owns the Arizona home. According to plaintiff, he relocated from Arizona to California shortly before the hearing on Mr. Caldwell's motion to vacate the disinheritance order. He has lived in California since January 2007. He lived with his mother in Rolling Hills until the end of 2007.
Plaintiff further declared that, between August 2001 and January 2007, he did not live with his mother in California. He did not receive mail at her home. His mother did not forward mail to him in Arizona. And, his mother was not authorized to receive mail for him. Plaintiff claimed to only be generally aware of the dispute between Mr. Caldwell and the former successor trustee. However, plaintiff did not receive the petition for order determining distribution of residue and to ascertain the identity of the residuary beneficiaries. Plaintiff indicated he did not receive any notice of hearing or entry of orders in connection with the distribution petition. Further, plaintiff claimed he also did not receive the judgment on the pleadings motion.
In opposition, then co-successor trustees, Bill and Ms. Smith, argued that the validity of the orders had been conclusively decided. Plaintiff appeared in the probate court proceeding to join Mr. Caldwell's motion to set aside the same orders. Plaintiff then failed to prosecute an appeal from the order denying Mr. Caldwell's motion. Mr. Caldwell was given notice of the hearing on the petition for order determining distribution and to ascertain residuary beneficiaries. Plaintiff appeared at the hearing on the judgment on the pleadings motion and at the hearing where the nunc pro tunc order was discussed. Plaintiff received notice of the orders at his mother's address and never objected to the manner of service.
In supplemental papers, plaintiff explained his delay in challenging the orders. Plaintiff believed Mr. Caldwell's actions were sufficient. Plaintiff retained counsel in May 2008. Plaintiff's attorneys filed a Probate Code section 21320 safe harbor petition on his behalf in December 2008 to avoid disinheritance from the education trust. The safe harbor petition was granted in part in March 2009. Plaintiff waited for the time to expire for an appeal of the safe harbor order. After retaining new counsel, the motion at issue was filed in March 2010. Plaintiff also denied appearing in the matter before January 2007.
On August 25, 2010, after a number of hearings, the probate court denied plaintiff's motion to vacate the December 30, 2005 and July 6, 2006 orders. The petition to construe the trust as moot was denied. This timely appeal followed.
Plaintiff contends the probate court erred in refusing to set aside the July 2006 disinheritance orders pursuant to section 473, subdivision (d). According to plaintiff, relief should have been granted because the orders are all void as to him for lack of proper service. In addition, he claims the probate court lacked jurisdiction to enter the July 7, 2006 disinheritance orders purporting to amend the December 30, 2005 judgment on the pleadings order nunc pro tunc while the aforementioned appeal was pending. Alternatively, he contends the nunc pro tunc order was not clerical. A trial court's determinations under Code of Civil Procedure section 473 are reviewed for an abuse of discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257; Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 230; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695.) The issues of whether the orders are void due to improper service or lack of jurisdiction are legal and subject to de novo review. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200; Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858; Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496.)
Plaintiff argues the probate court should have set aside the challenged orders pursuant to section 473, subdivision (d) which allows a court to set aside any void order or judgment. A party seeking relief under section 473, subdivision (d) must show a proper ground for relief and that the party has properly raised the issue within the applicable time limits. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180 [by analogy two-year outer limit for relief provided by section 473.5 for relief from default judgment applies to statutory motion under section 473 subdivision (d)]; Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1120-1124 [same].) The proper ground for relief under section 473, subdivision (d) is the judgment or order is void on its face otherwise the trial court cannot grant the motion. (Henderson v. Pacific Gas & Electric Co., supra, 187 Cal.App.4th at p. 229; Cruz v. Fagor America, Inc., supra, 146 Cal.App.4th at p 495; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) Furthermore, a motion to vacate a void judgment under section 473, subdivision (d) for lack of proper service must be brought within a two-year period. (Trackman v. Kenney, supra, 187 Cal.App.4th at p. 180; Rogers v. Silverman, supra, 216 Cal.App.3d at pp. 1120-1124.)
Here, the orders were entered on December 30, 2005, and July 7, 2006. Plaintiff waited until March 10, 2010 to file his motion for relief. Plaintiff waited at least four years (for the December 30, 2005 order) and three and half years (for the July 7, 2006 order) to challenge the validity of the orders. Thus, the probate court did not abuse its discretion in refusing to grant relief under section 473, subdivision (d).
Plaintiff nevertheless claims his section 473, subdivision (d) motion should have been granted because all pleadings were sent to his mother's address. And, the judgment on the pleadings motion was not served on him at all. However, even if an Arizona address could have been found or he was not served with one or more of the motions, the service issues are not pertinent to the untimely section 473, subdivision (d) motion.
In any event, plaintiff undoubtedly received notice of the all the proceedings. Plaintiff challenged the order in January 2007 by joining Mr. Caldwell's motion to set aside the July 30, 2006 orders determining the residuary beneficiaries. Plaintiff then filed his own appeal from the probate court order denying Mr. Caldwell's motion to set aside the July 30, 2006 orders. After plaintiff's appeal was dismissed in June 2008, he then waited almost two years to file his motion for relief pursuant to section 473, subsection (d). In sum, plaintiff has been involved in these proceedings since no later than January 2007, but he waited until March 2010 to file a motion on his own behalf. The probate court acting within its discretion could conclude that relief was not warranted under section 473, subdivision (d).
Even if statutory provisions are unavailable, a court has inherent power on equitable grounds to vacate a void judgment or order when it was entered without due process or through extrinsic fraud or mistake. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981; In re Adoption of B.C., Jr. (2011) 195 Cal.App.4th 913, 919; County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228; Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 15.)
Plaintiff argues the probate court was required to set aside the orders at issue because he was not served at all with the judgment of the pleadings motion and the residuary beneficiaries. A party filing a petition in the probate court is required to serve notice on beneficiaries and other parties whose right, title, and interest would be affected. (Prob. Code, § 17203, subds. (a)(2) & (b).) Probate Code section 1215, subdivision (d) allows service of notice and other papers by mail addressed to a person's place of business or residence. The party serving notice has the burden of establishing the notice has been sent to the correct address. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 510.) Effective service by mail requires strict compliance with statutory provisions and failure to comply deprives a court of jurisdiction. (Silver v. McNamee (1999) 69 Cal.App.4th 269, 279-280; Lee v. Placer Title Co., supra, 28 Cal.App.4th at p. 509.) However, there is a caveat to this rule where there is actual notice as follows: "Statutes governing substitute service shall be `liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant. . . . [Citation.]' [Citation.]" (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544; accord Hearn v. Howard, supra, 177 Cal.App.4th at p. 1201.)
In this case, the proof of service from the judgment on the pleadings motion shows that it was not served on plaintiff at all. The proof of service on the petition for the order determining the residuary beneficiaries shows it was served on him by mail at his mother's California residence. Plaintiff declared that, at the time of service of these papers, he was an Arizona resident and did not live with his mother.
The issue of complete lack of service was explained in County of San Diego v. Gorham, supra, 186 Cal.App.4th at page 1229 as follows: "[W]here it is shown that there has been a complete failure of service of process upon a defendant, he generally has no duty to take affirmative action to preserve his right to challenge the judgment or order even if he later obtains actual knowledge of it because `[w]hat is initially void is ever void and life may not be breathed into it by lapse of time.' [Citation.] Consequently under such circumstances, `neither laches nor the ordinary statutes of limitation may be invoked as a defense' against an action or proceeding to vacate such a judgment or order. [Citation.] And, where evidence is admitted without objection that shows the existence of the invalidity of a judgment or order valid on its face, `it is the duty of the court to declare the judgment or order void.' [Citation.]." (See Thompson v. Cook (1942) 20 Cal.2d 564, 569.)
The evidence supports an inference the notices did not comply with statutory service and due process mandates particularly as to the judgment on the pleadings motion. The Court of Appeal has held: "A judgment is void for lack of jurisdiction of the person where there is no proper service on or appearance by a party to the proceedings." (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016; accord County of San Diego v. Gorham, supra, 186 Cal.App.4th at p. 1225.) Further, the Court of Appeal has held: "Because the `total absence of notice in any form cannot comport with the requirement of due process' [citation], it has been said that a judgment of a court lacking such personal jurisdiction is a violation of due process [citation], and that `a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute [to establish personal jurisdiction] is void.' (Dill v. Berquist Construction Co. [, supra,] 24 Cal.App.4th [at p.] 1444.)" (County of San Diego v. Gorham, supra, 186 Cal.App.4th at pp. 1226-1227.)
But, the inquiry does not end there due to the peculiar circumstances of this case. There was evidence plaintiff participated in the proceedings surrounding the December 30, 2005 judgment on the pleadings motion and the July 7, 2006 nunc pro tunc order determining the residuary beneficiaries. Plaintiff had actual notice of the judgment on pleadings and the petition to determine the residuary beneficiaries no later than January 2007. At that time, he appeared in the proceedings to challenge the orders and subsequently filed and then abandoned an appealed from the adverse orders.
The probate court, acting within its discretion, could reasonably conclude that exercising its equitable powers to grant relief in this case was unwarranted under the circumstances of this case. (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981; see Lee v. An (2008) 168 Cal.App.4th 558, 566.) As County of San Diego v. Gorham, supra, 186 Cal.App.4th at pages 1229-1230 explained: "Nonetheless, a court sitting in equity in such situation may `refuse to exercise its jurisdiction in a proper case by declining to grant affirmative relief' [citation], such as where `(1) The party seeking relief, after having had notice of the judgment, manifested an intention to treat the judgment as valid; and (2) Granting the relief would impair another person's substantial interest of reliance on the judgment.' [Citation.] Because of the strong public policy in favor of the finality of judgments, equitable relief from a default judgment or order, is available only in exceptional circumstances. [Citation.]" (See Rappleyea v. Campbell, supra, 8 Cal.4th at p. 982.)
Notwithstanding the claimed service defects, plaintiff had actual notice of the proceedings as early as January 2007. Until he filed the March 10, 2010 motion to set aside the December 30, 2005 and July 6, 2006 orders, plaintiff never raised the notice issues. Rather, he waited well over four years from one order and three for the other to raise the service defects. No abuse of discretion occurred. (Biddle v. Superior Court (1985) 170 Cal.App.3d 135, 138 [service defects waived where no claim is made and motions are attacked on the merits without mention of notice issues]; Chapman v. Gipson (1951) 103 Cal.App.2d 585, 587 [party accepts jurisdiction and waives notice defects by defending on the merits]; accord Harabedian v. Superior Court (1961) 195 Cal.App.2d 26, 33; see also American Contractors Indem. Co. v. County of Orange (2005) 130 Cal.App.4th 579, 584 [no abuse of discretion in denying motion to set aside a judgment where evidence established party had actual notice].)
Plaintiff also asserts the motion to vacate should have been granted because the probate court lacked jurisdiction to enter the July 7, 2006 orders (determining residuary beneficiaries and nunc pro tunc) while the appeal was pending from the December 30, 2005 judgment on the pleadings. County of San Diego v. Gorham, supra, 186 Cal.App.4th at page 1225 explained the relevant rule of law: "Courts generally refer to jurisdiction over the parties and subject matter in any action as `fundamental jurisdiction,' and where this is lacking there is an entire absence of power to hear or determine the case. (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 538.) Under such circumstances, `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 (italics added.) [¶] On the other hand, `[a]n excess of jurisdiction is typically described as the 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."' [Citations.]' (Thompson Pacific, supra, 155 Cal.App.4th at p. 537.) `Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari.' [Citation.] In contrast with judgments lacking fundamental jurisdiction, judgments or orders in excess of jurisdiction are valid unless attacked. (Thompson Pacific, supra, 155 Cal.App.4th at p. 537.)"
The question here is whether the probate court lacked authority to enter the July 6, 2006 orders nunc pro tunc because of the pending appeal. The general rule is, "Courts have inherent power to enter judgments nunc pro tunc so as to relate back to the time when they should have been entered." (Phillips v. Phillips (1953) 41 Cal.2d 869, 875; Williamson v. Plant Insulation Co. (1994) 23 Cal.App.4th 1406, 1415.) Entry of judgment or order nunc pro tunc is intended to reflect the true facts or intentions of the court as of the earlier date. (In re Candelario (1970) 3 Cal.3d 702, 705; Scalice v. Performance Cleaning Systems (1996) 50 Cal.App.4th 221, 239.) Thus, where a judgment or order is actually rendered, but not entered through clerical error or negligence, the court may order its entry nunc pro tunc. (Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52 Cal.App.4th 867, 884, fn. 11; accord Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1249, fn. 8.)
Plaintiff claims the nunc pro tunc order was improper in this case because the probate court lost jurisdiction to enter the July 6, 2006 order while the judgment on the pleadings was pending. The court's inherent power to correct clerical errors is not suspended or impeded by an appeal. (In re Candelario, supra, 3 Cal.3d at p. 705; Fay v. Stubenrauch (1904) 141 Cal. 573, 575; People v. Nesbitt (2010) 191 Cal.App.4th 227, 233.) The December 30, 2005 order refers to the "no contest" issue but does not specifically mention any distribution issues. However, judgment of the pleadings was granted as to the former successor trustee's August 2, 2005 petition. The August 2, 2005 pleading prayed for two relevant determinations. First, the August 2, 2005 pleading sought a determination that Mr. Caldwell forfeited his interests in the living trust when he violated the no contest clause. Second, the pleading sought an order that the former successor trustee should distribute the residuary to Bill and Ms. Smith in one-half interests each. The judgment of the pleadings motion specifically stated the distribution issue raised in the August 2, 2005 petition could be decided based on Mr. Caldwell's violation of the no contest provision. It is unclear from the December 14, 2005 hearing that the probate court intended to distinguish between the no contest and distribution to residuary beneficiaries determinations in granting the judgment on the pleadings motion. However, both no contest and distribution determinations were requested in the prayers of the August 2, 2005 petition.
The matter was clarified at the July 12, 2006 hearing. The court, counsel for the former successor trustee and Bill were in agreement that a nunc pro tunc order would accurately reflect the probate court's true ruling from December 30, 2005. Mr. Caldwell's counsel never objected on the ground that the December 30, 2005 ruling was anything other than a judgment on the entire August 2, 2005 petition including the determination of the residuary beneficiaries as prayed. Indeed, on appeal from the December 30, 2005, the parties stipulated that review of the distribution order would be proper based on the nunc pro tunc order. Although we declined review of the issue because it was not included in Mr. Caldwell's notice of appeal, it does not change the fact that all the parties agreed that the entire August 2, 2005 petition was granted by the judgment on the pleading orders. Thus, the probate court order did not violate any nunc pro tunc standards by correcting the record to reflect its true ruling.
The order denying the motion to vacate orders is affirmed. Candace Caldwell, as the successor trustee of the Caldwell Living Trust dated August 17, 1988, as amended and restated by the Amendment to and Complete Restatement of the Caldwell Living Trust dated July 21, 2000, shall recover her costs incurred on appeal from Craig E. Caldwell, II.
ARMSTRONG, J. and KRIEGLER, J., concurs.
