Estate of Goodwin v. Smith

Estate of PATRICIA GOODWIN, Deceased.

GERALD LEE FARRELL, Petitioner and Appellant, v. ELIZABETH SMITH, Objector and Respondent.

A152146

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

January 24, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Mateo County Super. Ct. No. PRO126458)

MEMORANDUM OPINION¹

Gerald Lee Farrell, currently the special administrator of the estate of Patricia Goodwin, appeals from an order of the probate court granting the motion of Elizabeth Smith to vacate various prior orders. These vacated orders include a prior order striking Smith's objection to Farrell's petition to commence probate and for appointment as administrator. We affirm the order vacating the prior orders.

Background

Goodwin died in October 2015 without having married and without having had children. Several months later, Farrell, one of Goodwin's nephews, filed a petition to administer Goodwin's estate under the Independent Administration of Estates Act, forappointment as administrator, and for issuance of letters of administration. Several weeks thereafter, Smith, one of Goodwin's nieces, objected to the petition on the ground Goodwin had not died intestate, but had executed a revocable trust and pour over will.

Farrell responded with a petition to invalidate the purported trust and will on multiple grounds, including lack of testamentary capacity and undue influence. Smith filed a verified response, which included her own declaration and one by the attorney who had prepared the trust and will. Among other things, Smith and the attorney averred Goodwin had expressly stated she wanted none of her nephews and nieces, except Smith, to share in her estate.

Smith's own attorney, Steven Strain, although having prepared and filed Smith's response to Farrell's petition to invalidate the trust and pour over will, thereafter failed to respond to Farrell's discovery requests, failed to appear at a July 8, 2016, hearing on Farrell's motion to compel, and failed to respond to the court's July 8 written order compelling responses to the discovery and awarding monetary sanctions. Strain also failed to apprise Smith of any of these developments.

Having heard nothing from Strain, Farrell, on September 15, 2016, moved for "terminating" sanctions or a further order compelling discovery responses and awarding additional monetary sanctions. Strain again filed no opposition and did not appear on the motion; he also did not tell Smith of these developments.

At a hearing on October 17, 2016, the probate court granted Farrell's motion for terminating or other sanctions and directed that a formal order be submitted for signature. On November 3, the court signed, and on November 4, filed, a formal written order that (a) granted Farrell's "motion for terminating or other sanction," (b) struck Smith's objection to Farrell's petition for probate, for appointment as administrator, and for issuance of letters, and (c) granted Farrell's petition.

Four months later, Smith, represented by a new attorney, David Rosenbaum, filed a motion to vacate the "Order Imposing Sanctions" "entered" on July 8, 2016 and the "Order Striking Opposition" "entered" on October 17, 2016. In her supporting declaration, Smith averred that after April 26, 2016, she repeatedly tried to contact Strainabout the status of the case but received no response. Strain finally returned her calls on October 4, but only told her the case was " 'still in the fact-finding stage.' " Smith asserted she knew nothing about the July 8 motion to compel, the order compelling responses, the subsequent motion for terminating or other sanctions, or the November 4 order striking her objection and granting Farrell's petition until January 19, 2017, when she saw a notice to vacate, issued by Farrell as administrator, posted on the door of Goodwin's former residence. Smith's new attorney also submitted a supporting declaration, attaching a State Bar complaint alleging misfeasance by Strain in another probate case.

Farrell opposed Smith's motion to vacate on numerous grounds, including: (1) Smith had not yet filed a substitution of counsel; (2) she could not seek relief under Code of Civil Procedure section 473, subdivision (b) on grounds of attorney neglect because she had not filed an affidavit by Strain professing error; (3) she could not seek relief under Code of Civil Procedure section 473, subdivision (b) on grounds of inadvertence, surprise or excusable neglect as to the July 8, 2016 order compelling responses, as more than six months had passed, nor could she show "excusable neglect"; and (4) Smith, herself, was derelict in following up with Strain. Farrell also construed Smith's motion as seeking relief only as to the court's discovery rulings and claimed these rulings were now moot, since the court had granted his petition for probate and appointment as administrator.

In reply, Smith acknowledged that to the extent she sought to vacate the initial order compelling discovery, her motion to vacate was filed six months and 12 days after the court, on August 12, 2016, signed and filed a formal written order.² She urged the court to nevertheless vacate that order on equitable grounds. As for the order striking her objection and granting Farrell's petition for probate and appointment as administrator, her motion was filed well within the statutory six-month period. She additionallyacknowledged she had not provided an attorney's affidavit of fault, but explained she could not do so because Strain had died. She further asserted she was entitled to relief in any event because Strain's neglect was so extreme as to amount to positive misconduct. She also disputed Farrell's accusations that she had, herself, been neglectful in following up with Strain and staying abreast of the case. And finally, she maintained the court's striking of her objection to Farrell's petition was, in effect, a default judgment and therefore within the ambit of Code of Civil Procedure section 473, subdivision (b).

Smith's motion to vacate came on for hearing on March 29, 2017, as Farrell contested the court's tentative ruling to grant the motion. His counsel maintained the court had no jurisdiction to vacate the order compelling discovery responses because more than six months had elapsed before Smith moved to vacate, and that the subsequent order striking Smith's objection was "moot" because the court had granted Farrell's petition for probate and appointment as administrator. The court, expressing concern that Strain's derelictions had deprived Smith of her constitutional rights of access to the court and due process, asked for additional briefing and continued the motion for further hearing.³

Smith subsequently filed an "amendment to notice" of the motion to vacate, adding specific reference to the fact the court had not only struck her objection to Farrell's petition, but also had granted his petition for probate and appointment as administrator. She also submitted a supplemental memorandum, responding to the court access and due process issues the probate court had raised at the hearing. Smith reported the death certificate for Strain identified as the causes of death renal failure, liver failure and cholangiocarcinoma, from which he had been suffering for months. While Smith had also subpoenaed Strain's medical records, she had not yet received them.

Farrell also filed an additional memorandum. He first objected that Smith had improperly enlarged her motion by expressly referring to the court's granting of his petition for probate and appointment as administrator. He additionally objected that Smith had made representations about Strain's condition and misconduct that were not supported by competent evidence. He further maintained the order granting his petition for probate and appointment as administrator was a final, appealable order that had not been appealed and therefore the order was "final" and could not be "collaterally" attacked by way of a motion to vacate.

At the outset of the continued hearing, the probate court asked Farrell's attorney if Farrell "really wanted" a continuance in light of Farrell's objection to Smith's "amended" notice of motion. Counsel declined the offer. Counsel then asserted the court's order striking Smith's objection and granting Farrell's petition for probate and appointment as administrator was not a "default" judgment that could be vacated under Code of Civil Procedure section 473, but rather was an appealable order that could be challenged only on appeal but no appeal had been taken. While the court agreed its prior order was not a "default" judgment per se, it was, said the court, "akin" to a default judgment. (Cf., Greenup v. Rodman (1986) 42 Cal.3d 822, 827-828 [order striking answer as a discovery sanction resulted in default judgment and was subject to limits on amount for which judgment could be entered].)

After hearing from both counsel, the probate court adhered to its tentative ruling and, on "fundamental fairness" grounds, granted Smith's motion to vacate the challenged discovery order and the order granting "terminating" sanctions and granting Farrell's petition for probate, for appointment as administrator and for issuance of letters.

Discussion

Farrell's appeal is limited to a single issue. He maintains, as he did in the probate court, that the order striking Smith's objection and granting his petition for probate and appointment as administrator was appealable, and that, having become final by virtue of not being appealed, the order cannot now be "collaterally" attacked by way of a motion to vacate either under Code of Civil Procedure section...