Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. PR160452
Duffy, J.
Andrea Caballero appeals from the trial court’s sua sponte reconsideration and vacation of an order appointing her as successor trustee of the Jess G. Caballero Family Trust (the “trust”). The trust expressly listed the order of successor trustees, placing Yolanda Jasso first, Andrea Caballero second, and Marlene Sanchez, all daughters of the settlor, third. Upon its reconsideration of the order, the court vacated it and denied Andrea’s petition to be appointed as successor trustee, reaffirming a prior order issued by a different judge that had removed the initial successor trustee, Yolanda, and had in effect bypassed Andrea’s appointment as successor trustee in favor of Marlene.
For ease of reference and not out of disrespect, after first stating their full names as reflected in the record, we will refer to the parties and pertinent actors by their first names.
Andrea contends that the trial court erred in acting as it did because it lacked “jurisdiction” to reconsider its prior order. We conclude that the trial court had the power to sua sponte reconsider its prior ruling. But it exercised this power without informing the parties that it was contemplating reconsideration on its own motion, without soliciting briefing, and without holding a hearing, all of which are required by our high court’s holding in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108 (Le Francois). We nevertheless conclude that on this record, this error was not prejudicial and we accordingly affirm the trial court’s order.
STATEMENT OF THE CASE
I. Factual Background
Jess G. Caballero was born in 1921 and died in May 2006. He had five children at the time he created the trust in 1994, all of whom were adults at the time he died: Yolanda Jasso, Andrea Caballero, Marlene Sanchez, Anna Shaddox, and William Caballero. All five children were named as beneficiaries of the trust, the principal assets of which were a duplex located at 1521 and 15211/2 Pomona Avenue in San Jose and a bank account with approximately $30,000 in it. The trust provided that Marlene could live at the Pomona Avenue property for “as long as she wants to, without paying rent.”
Andrea is identified in the trust document as “Beatriz Caballero” but consistently with how she identifies herself, we refer to her as Andrea.
Jess Caballero also maintained a life insurance policy but the court found that the policy proceeds (in the amount of $13,500) were held outside the trust. This determination is not pertinent to this appeal.
The trust, which became irrevocable upon Jess Caballero’s death, named him as sole trustee and named Yolanda, upon his death, as successor trustee, followed by Andrea and then Marlene. In July 2006, after Jesse Caballero’s death, Yolanda accepted the trust under Probate Code section 15600 and began acting as the successor trustee. That same month, Marlene indicated her intention not to reside at the Pomona Avenue property and Marlene, Anna, and William indicated to Yolanda and Andrea their desire that the property be sold and proceeds distributed per the trust. Disputes, largely surrounding the proper disposition of the Pomona Avenue property and other trust administration issues, arose soon after between Yolanda and Andrea on the one hand and Marlene, Anna, and William on the other hand.
II. Procedural Background
On October 31, 2006, Marlene, Anna, and William, as beneficiaries of the trust, jointly filed a petition to remove Yolanda as trustee, to bypass the appointment of Andrea as successor trustee, and to appoint Marlene instead. The petition alleged as grounds for relief that Yolanda had failed and refused to administer the trust property in accordance with the trust instrument. Specifically, the petition alleged that Yolanda had failed to lease or sell the Pomona Avenue property; that in breach of her fiduciary duties, she had taken possession of the Pomona Avenue property and had allowed Andrea and others to live there rent free; and that Andrea had “participat[ed in] and refus[ed] to pay rent for the Pomona property,” by reason of which Andrea should not be appointed as successor trustee despite being so named in the trust instrument.
Both Yolanda and Andrea were served with the petition to remove Yolanda as trustee, to bypass Andrea as successor trustee, and to appoint Marlene instead. Only Yolanda filed a written opposition to the petition, though Andrea was present at and participated in the February 15, 2007 hearing before Judge Thomas Edwards, at which oral and documentary evidence was taken.
There is no reporter’s transcript of this or any other oral proceedings included in the appellate record.
On February 22, 2007, Judge Edwards issued his written order. The order found that (1) Yolanda, acting as trustee, had “committed a breach of the trust, and [had] failed to act in accordance with the express provisions of the trust, with respect to the sale and rental of the [Pomona Avenue] trust property;” and (2) that Yolanda had “taken actions for the benefit of herself, her sister Andrea, and their mother Beatrice [who had been divorced from Jess G. Caballero for many years before his death] (a non-beneficiary of the trust), to the exclusion and detriment of the three other beneficiaries, with respect to the sale and rental of the Pomona Avenue property.” The court’s order “grant[ed] the Petition and the relief sought therein pursuant to Probate Code section 15642” and it specifically removed Yolanda as trustee of the trust; appointed Marlene to act in her place; and directed Yolanda to “account fully for all trust property and rents, and to transfer the same to the successor trustee, Marlene Sanchez, within 30 days.” In directing as it did, and in granting the relief as prayed in petition, the order effectively, but without expressly saying so, bypassed the appointment of Andrea as successor trustee per the terms of the trust in favor of appointing Marlene.
Written notice of entry of the court’s February 22, 2007 order was served on March 19, 2007. No one appealed from the order though it was appealable within 60 days of service of the notice of entry of order under Code of Civil Procedure section 904.1, subdivision (a)(10), Probate Code sections 1304, subdivision (a), and 17200, subdivision (b)(1), and rule 8.104 of the California Rules of Court.
On April 16, 2007, Andrea filed a petition under Probate Code section 17200 requesting that she be appointed as trustee of the trust. Her petition noticed a hearing date of May 21, 2007, and alleged that Andrea had been named in the trust as the “alternate successor trustee” to Yolanda and further alleged that Yolanda had been removed as trustee. It omitted any reference to the fact that the court had previously been requested to bypass Andrea as successor trustee and indeed had already granted this relief by specifically appointing Marlene instead of Andrea to act in Yolanda’s place. Andrea’s petition did not request that Marlene, then acting as the duly appointed successor trustee, be removed. At the same time, Andrea also filed a creditor’s claim against the trust in the amount of $255,480 based on alleged personal services she had performed in taking care of Jess Caballero in the four years preceding his death in 2006.
Marlene, Anna, and William filed a joint objection to Andrea’s petition to be appointed as successor trustee, which, raising the specter of Code of Civil Procedure section 1008 concerning motions for reconsideration, pointed out that their prior petition had sought to bypass Andrea in the appointment of a successor trustee, and that Andrea had not filed any formal objection to that request though she had fully participated in the evidentiary hearing that led to Judge Edwards’s February 22, 2007 order removing Yolanda as trustee and appointing Marlene as her successor. Their objection also noted that Andrea’s creditor’s claim created a conflict of interest between her and the trust, precluding her from properly acting as its representative, and gave notice of acting trustee Marlene’s rejection of the claim. Their objection further put Judge Edwards’s February 22, 2007 order before the court as an exhibit.
Following the hearing date of Andrea’s petition, on May 23, 2007, Judge Eugene Hyman filed his order, which had been prepared by Andrea’s counsel, granting Andrea’s petition to be appointed as successor trustee. The order did not remove Marlene as trustee, and, consistently with Andrea’s petition, did not even mention Marlene’s prior appointment. It is not clear from the record whether this order was ever formally served, and if so by what means, on Marlene, Anna, and William, triggering the deadline to move for reconsideration under Code of Civil Procedure section 1008.
On June 4, 2007, Marlene, Anna, and William applied ex parte for reconsideration of Judge Hyman’s May 23 order appointing Andrea as trustee. Their application papers reiterated, in much more detail and with much more documentary support, the grounds and facts contained in their prior written objection to Andrea’s petition to be appointed. Though not couched as such, the application also pointed out what indeed was a new and different fact arising since the filing of Marlene’s petition or the objection thereto—that by reason of Judge Hyman’s order, there were now two acting successor trustees because Judge Edwards’s February 22, 2007, which by then had become final and no longer appealable, had appointed Marlene as successor trustee and Judge Hyman’s May 23, 2007 order appointing Andrea did not address Marlene’s prior appointment. In support of the request for reconsideration of Judge Hyman’s order, the application argued that Andrea’s petition itself had been an improper request for reconsideration of Judge Edwards’s prior order bypassing her appointment as successor trustee. The application also requested further briefing and a hearing if the court deemed the request for reconsideration not appropriate for ex parte treatment.
Andrea filed a written opposition to the ex parte application for reconsideration. Her opposition contended that relief should not be granted under Code of Civil Procedure section 1008 because there were no new or different facts, circumstances, or law claimed to be shown by the application, which was accordingly in violation of this section. She also contended that the fact that Judge Hyman’s order did not remove Marlene as successor trustee was merely a matter of “semantics,” that it was not necessary for the order to have expressly done so, and that this effect had been accomplished by virtue of Andrea’s subsequent appointment. The opposition likewise requested a hearing and the opportunity to present further declarations if the court were not inclined to deny the application outright.
On June 21, 2007, Judge Hyman issued the court’s decision and order, which denied Marlene, Anna, and William’s application for reconsideration on the basis that they had failed to comply with Code of Civil Procedure section 1008 by stating what new or different facts, circumstances, or law were claimed to be shown and had further failed to provide a reason why any such new matters had not been asserted earlier in response to Andrea’s petition.
But the court went on to acknowledge “the current conflict that exists” by reason of Judge Edwards’s prior order appointing Marlene as successor trustee and Judge Hyman’s later order appointing Andrea as successor trustee, which was silent as to the status of Marlene’s appointment. In order to resolve this conflict, the court reconsidered its May 23 order “on its own motion” while again declining to grant Marlene, Anna, and William’s application for reconsideration given Code of Civil Procedure section 1008’s procedural and jurisdictional requirements. The court concluded that Judge Edwards’s February 22, 2007 order appointing Marlene as successor trustee instead of Andrea was the “correct order” and it accordingly vacated its May 23rd order and reaffirmed Judge Edwards’s prior order. The court found that neither Andrea’s petition for appointment as successor trustee nor the order granting that petition had addressed the fact that Marlene had been the duly appointed and acting trustee. It also found that Andrea’s petition was itself barred by Code of Civil Procedure section 1008 because Judge Edwards had previously considered her appointment as trustee and had bypassed her in favor of Marlene. Judge Hyman finally found that by reason of Andrea’s creditor’s claim, which would result in ensuing litigation against the trust that would not be in its best interests, she had an “impermissible conflict” with the trust, precluding her appointment as trustee.
Andrea’s timely appeal from the court’s June 21, 2007 order, to the extent it sua sponte reconsidered and vacated the May 23, 2007 order, followed.
DISCUSSION
I. Appealability, Issue on Appeal, and Standard of Review
An order granting reconsideration is appealable. (Harth v. Ten Eyck (1939) 12 Cal.2d 709, 710.)
Andrea asserts a single claim on appeal—that the trial court lacked the power to reconsider its prior order sua sponte because “once the [prior] [o]rder was signed and entered, the trial court was without jurisdiction to modify it.” But as we see the issue, as framed by the California Supreme Court in Le Francois, the question on appeal is not whether the court had jurisdiction to act sua sponte, which it did as we explain below. The question is instead whether the court in acting sua sponte afforded the parties the procedural fairness that Le Francois requires by sufficiently notifying them that the court was contemplating reconsideration on its own motion and by providing them with the opportunity to file further briefing and to be heard. (Le Francois, supra, 35 Cal.4th at pp. 1108-1109.) To this issue, a matter of law, we apply an independent standard of review on appeal.
II. While it Had the Power to Reconsider its Order Sua Sponte, the Trial Court Still Erred in its Grant of Reconsideration
Code of Civil Procedure section 1008 governs parties’ motions for reconsideration and their renewal of prior motions. It expressly specifies and limits the court’s jurisdiction to reconsider a prior ruling or entertain a renewed motion when such relief is sought by a party. A motion for reconsideration by a party must be filed within “10 days after service upon the party of written notice of the entry of the order [which time is extended for service by means other than personal service under Code of Civil Procedure section 1013]” and the motion may be granted only “upon new or different facts, circumstances, or law,” which matters must be shown by affidavit as part of the motion. (Code Civ. Proc., § 1008, subd. (a).) Code of Civil Procedure section 1008 governs parties’ motions for reconsideration or their renewal of prior motion “whether the order deciding the previous matter or motion is interim or final.” (Code Civ. Proc., § 1008, subd. (e).)
In Le Francois, the Supreme Court resolved a longstanding conflict in the courts of appeal, making clear that the jurisdictional and procedural requirements and limitations of Code of Civil Procedure section 1008 apply only to applications or motions brought by a party. These requirements and limitations do not govern a court’s reconsideration of a prior order on its own motion, a power that independently derives from the California Constitution, that inherently exists, and that based on separation of powers principles, may not be defeated or materially impaired by legislative action. (Le Francois, supra, 35 Cal.4th at pp. 1099-1107.) In so holding, the court concluded that if the statutory requirements of Code of Civil Procedure section 1008 (or § 437c, subd. (f)(2)), in the case of summary judgment motions) are not met, “any action to reconsider a prior interim order must formally begin with the court on its own motion. To be fair to the parties, if the court is seriously concerned that one of its prior interim rulings might have been erroneous, and thus that it might want to reconsider that ruling on its own motion—something we think will happen rather rarely—it should inform the parties of this concern, solicit briefing, and hold a hearing. [Citations.] Then, and only then, would [an opposing] party be expected to respond to another party’s suggestion that the court should reconsider a previous ruling. This procedure provides a reasonable balance between the conflicting goals of limiting repetitive litigation and permitting a court to correct its own erroneous interim orders.” (Le Francois, supra, 35 Cal.4th at pp. 1108-1109.)
And as recently held in In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1303-1304, 1314, a trial court’s inherent authority to correct its errors exists even when the trial court is prompted, as the court here considered itself to have been, to reconsider its prior ruling by a motion filed in violation of Code of Civil Procedure section 1008. This proposition holds so long as the court limits its reconsideration of the matter to the evidence filed in connection with the prior ruling and does not consider new evidence that could have been, but was not, presented to the court as part of the original motion. (In re Marriage of Barthold, supra, at p. 1314.)
Thus, as is clear from Le Francois, which Andrea does not address, a court does indeed retain the power to reconsider a prior ruling on its own motion. This holding squarely defeats her contention that once an order is entered, a court absolutely loses jurisdiction to reconsider it if the requirements of Code of Civil Procedure section 1008 are not met.
Andrea contends that the May 23 order appointing her as successor trustee that was the subject of reconsideration is final and not interim, though she neither cites authority for this proposition nor discusses what this conclusion, if true, may mean vis a vis a court’s power to reconsider the order. We need not decide whether the order was final or interim for purposes of our analysis. We acknowledge that Le Francois, in a footnote, emphasized that what that case was saying about a “court’s ability to reconsider interim orders does not necessarily apply to final orders, which present quite different concerns.” (Le Francois, supra, 35 Cal.4th at p. 1105, fn. 4.) But like the court in In re Marriage of Barthold, we read the high court’s footnote “simply as a cautionary statement that its holding in LeFrancois may not apply to all final orders, an issue not examined in that case inasmuch as the order under review was interim.” (In re Marriage of Barthold, supra, 158 Cal.App.4th at p. 1312.) Indeed, Code of Civil Procedure section 1008 does not distinguish between interim and final orders, subdivision (e) providing that this section applies to parties’ motions for reconsideration of both. Thus, that the May 23 order appointing Andrea as successor trustee may have been appealable does not take it outside the ambit of either Code of Civil Procedure section 1008, or the construction given to this section by the Supreme Court in Le Francois. Moreover, even if the order were appealable, it was still not yet “final” in the sense that the time to appeal from it had expired under rule 8.104 of the California Rules of Court when the court reconsidered and vacated it.
Thus, we are not presented with and do not decide the issue whether a trial court can reconsider an appealable order on its own motion after the time to appeal from that order has expired, one definition of a “final” order. As noted in In re Marriage of Barthold, “[t]his circumstance may well have been the issue the Supreme Court had in mind when it indicated in Le Francois that ‘. . . final orders . . . present quite different concerns’ from interim orders. (Le Francois, supra, 35 Cal.4th at p. 1105, fn. 4, italics omitted.)” (In re Marriage of Barthold, supra, 158 Cal.App.4th at p. 1313, fn. 9.)
Thus, while we reject Andrea’s claim that the trial court lacked jurisdiction to reconsider its order on its own motion, we must also conclude that the court nevertheless erred in acting as it did because on this record, it is not clear that the court notified the parties that it was considering sua sponte reconsideration of the prior order, and it did not afford them the opportunity to file further briefing or to be heard, despite that both sides had requested just such proceedings in their papers filed in connection with the ex parte application for reconsideration. (Le Francois, supra, 35 Cal.4th at p. 1108.) In light of this conclusion, we proceed to address the effect of the error.
III. On This Record, The Trial Court’s Error Was Not Prejudicial
It is a constitutional requirement and a fundamental precept of appellate jurisprudence that error that is not harmful or prejudicial is not reversible. Article VI, section 13 of the California Constitution precludes reversal “for any error as to any matter of procedure, unless, after an examination of the entire cause . . ., the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” On this point, we again agree with the court of appeal in In re Marriage of Barthold, which held that “in any case in which a trial judge reconsiders an erroneous order, and enters a new order that is substantively correct, the resulting ruling must be affirmed regardless of any procedural error committed along the way.” (In re Marriage of Barthold, supra, 158 Cal.App.4th at p. 1313; see also People v. Edward D. Jones & Co. (2007) 154 Cal.App.4th 627, 634 [substantive issue must be reached in assessing resulting prejudice of procedural claim of error that one trial judge had improperly overruled another judge’s prior order on demurrer in ruling on later motion for judgment on pleadings, effectively providing reconsideration of prior order in violation of statute]; Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 110-119 [juvenile dependency court had inherent authority to reconsider order granting unification services to incarcerated, abusive father, and procedural irregularity in manner in which court reached that result was harmless error].)
We recognize that in Le Francois, the majority of the court rejected Justice Kennard’s view that the error committed by the trial court there had been harmless and its ruling was thus not reversible. But the majority did so because in that particular case, the issue had not been briefed on appeal, the trial court had not given the parties an opportunity to be heard before reversing its ruling, and, most importantly here, the court “[did] not know what would have occurred if it had done so.” (Le Francois, supra, 35 Cal.4th at p. 1109, fn. 6.) While the parties here did not identify on appeal the particular trial court error that occurred, let alone brief whether that error was prejudicial, and they were not given the opportunity to be heard below on the issue of the court’s sua sponte reconsideration, the record makes clear that the trial court’s error was not prejudicial and that its vacation of the erroneous prior order as a result of reconsideration was correct. We are thus not bound to reverse the June 21, 2007 order and remand the matter to the trial court, as was done in Le Francois, for it to decide whether it again wishes to sua sponte reconsider its prior order of May 23, 2007, upon proper notice to the parties. (People v. Edward D. Jones & Co., supra, 154 Cal.App.4th at p. 636 [Le Francois did not purport to establish that a procedural error in considering an improper motion for reconsideration is always reversible without regard to the substantive issue involved].)
First of all, contrary to the trial court’s conclusion, the record does not establish that Marlene, Anna, and William were not entitled to reconsideration of the May 23, 2007 order under Code of Civil Procedure section 1008 as they had requested in their ex parte application. As a result of that order, there were two acting successor trustees—a new fact or circumstance that could not have been presented in opposition to Andrea’s petition to be appointed because the circumstance had not yet occurred. And while their ex parte application was presented on June 4, 2007, 12 days after entry of the May 23, 2007 order, the record does not show when or how that order was served, which is the event that triggers the 10-day deadline to seek reconsideration under Code of Civil Procedure section 1008 in the first place and invokes Code of Civil Procedure section 1013, which provides additional time within which to act, depending on the manner of service.
Secondly, as Marlene, Anna, and William argued in opposition to Andrea’s petition to be appointed successor trustee and as the court ultimately concluded, it is clear that Andrea’s petition should not have been granted because it was in effect an improper request of the court to reconsider Judge Edwards’s prior February 22, 2007 order that had removed Yolanda as trustee and bypassed Andrea as successor trustee in place of Marlene. The reconsideration request was improper because it violated Code of Civil Procedure section 1008’s procedural requirements of moving within 10 days of service of the prior order and presenting new or different facts, circumstances, or law that could not have been presented previously. And, when Andrea filed her petition on April 16, 2007, the February 22, 2007 order was already final in the sense that the time to appeal it had passed. Moreover, the May 23, 2007 order appointing Andrea as successor trustee created confusion and ambiguity because the order did not address that Marlene had already been duly appointed and it did not remove her, resulting in there being two acting successor trustees in violation of the trust—a situation the trial court would have had to remedy at some point.
Third, it is clear that by virtue of Andrea’s creditor’s claim against the trust, which created an actual conflict of interest between her and the trust, she is precluded from acting as the trust’s fiduciary representative. (Prob. Code, § 15642; In re Vokal’s Estate (1953) 121 Cal.App.2d 252, 258 [trustee is subject to removal whenever his private interests conflict with trust duties].)
Based on all of these factors, the court’s May 23, 2007 order appointing Andrea as trustee was indeed erroneous and the court, whether in response to a party’s request or on its own motion, should have reconsidered and vacated it. There is no other result that should have obtained and, unlike the Supreme Court in Le Francois, we are not concerned in this particular case about what might have happened absent the procedural error. Thus, on this record, the court’s error in failing to notify the parties before granting reconsideration that it was contemplating such action on its own motion, and its failure to have given them the opportunity for further briefing and to be heard as required by Le Francois was not prejudicial.
DISPOSITION
The court’s June 21, 2007 order reconsidering and vacating its May 23, 2007 order is affirmed.
WE CONCUR, Bamattre-Manoukian, Acting P.J., McAdams, J.