Opinion
H045434
05-26-2020
Estate of BARBARA JEAN HAYES, Deceased. EDWARD P. HAYES, Petitioner and Respondent, v. JAMES E. MOORE, Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. PR046694)
In this appeal, we are asked to rewind a probate action back to where it stood on March 9, 2016, when respondent Edward P. Hayes's petition to admit decedent Barbara Jean Hayes's (Barbara) 2009 will to probate was granted. In September 2017, appellant James E. Moore moved to vacate the probate court's 2016 order—and all subsequent orders entered by that court—for lack of subject matter jurisdiction based on claimed defects in the affidavit of proof of publication (the 2015 affidavit) under Probate Code section 1262 and other statutes. The probate court denied Moore's motion, relying in large part on a new affidavit of proof of publication (the 2017 affidavit) filed with Hayes's opposition papers.
As Barbara Hayes shares the last name of respondent Edward P. Hayes, we refer to decedent by her first name in this opinion to avoid confusion.
Unspecified statutory references are to the Probate Code.
Moore appeals the denial of his motion to vacate. He argues that, because the 2015 affidavit was defective on its face, the probate court lacked fundamental subject matter jurisdiction and thus the 2016 order admitting the will to probate is void, as is every subsequent order entered in those proceedings.
As explained below, we need not decide whether the 2015 affidavit's purported defects deprived the probate court of jurisdiction because we conclude that, even assuming the affidavit was defective, any such defects were cured by the 2017 affidavit submitted in opposition to the motion to vacate.
Accordingly, we will affirm the order denying the motion to vacate.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Barbara's death and admission of her 2009 will to probate
Barbara died on August 12, 2015. At the time of her death, Barbara was legally married to Hayes.
In September 2014, Barbara had filed a petition for dissolution of her marriage to Hayes, but judgment of dissolution was not entered prior to her death.
On August 25, 2015, Hayes filed a petition for letters of special administration, alleging that Barbara had died intestate and seeking appointment as administrator of Barbara's estate (Santa Cruz County Superior Court No. PR046694). The court appointed Hayes temporary special administrator of the estate until September 25, 2015.
On September 22, 2015, Moore filed written objections to Hayes's petition, alleging, among other things, that Barbara had not died intestate but had executed a will in 2002. Moore attached a copy of the 2002 will to his objections and advised the court he had already filed a petition to probate the 2002 will in Santa Barbara County, because Barbara was living in Santa Barbara at the time of her death. (Santa Barbara County Superior Court No. 15PR00374.) Moore also alleged that Hayes's petition was defective in that he had failed to publish notice of the petition in a newspaper of general circulation in Santa Barbara.
According to Moore, Barbara moved into his home in Santa Barbara in October 2014, about a week after Hayes obtained a restraining order against her.
At the September 23, 2015 hearing on Hayes's petition, Hayes asked for a continuance based on Moore's objections. Hayes also informed the court that he had discovered a will executed by Barbara in 2009 and advised that he would file a petition to admit the 2009 will to probate. The court scheduled a new hearing for November 9, 2015, to address Moore's objections, including the issue of Barbara's domicile. Hayes's appointment as temporary administrator was extended to the new hearing date.
On October 23, 2015, Hayes filed an amended petition to admit the 2009 will to probate and requesting his appointment as executor of Barbara's estate in accordance with the terms of that will. Prior to the scheduled November 9 hearing, Hayes caused the notice of the amended petition to be published in the Santa Cruz Sentinel (Sentinel), a newspaper of general circulation in Santa Cruz County. The Sentinel filed a proof of publication in the probate action on November 4, 2015.
That proof of publication consisted of a signed affidavit (the 2015 affidavit) stating the following: "I, the undersigned, declare: That I am over the age of eighteen and not interested in the herein-referenced matter; that I am now, and at all times embraced in the publication herein mentioned was, a principal employee of the printer of the Santa Cruz Sentinel, a daily newspaper printed, published and circulated in the said county and adjudged a, newspaper of general circulation by the Superior Court of California in and for the County of Santa Cruz, under Proceeding No. 25794; that the advertisement (of which the annexed is a true printed copy) was published in the above-described newspaper on the following dates, to wit: 10/24/2015, 10/26/2015, 10/30/2015. I declare under penalty of perjury that, the foregoing is true and correct to the best of my knowledge. This 30th day of October, 2015 at Santa Cruz, California." A photocopy of the printed legal notice referenced in the 2015 affidavit was attached to the proof of publication.
On November 6, 2015, Moore contested Hayes's appointment as personal representative alleging that: (1) Hayes lacks the mental competence to serve as personal representative; (2) Hayes is hostile to the estate; and (3) Hayes waived his right to such an appointment by willfully delaying the initiation of the probate action. In a supplemental brief, Moore alleged that Hayes "lacks the integrity to serve as executor" of the estate. After several continuances, Moore formally withdrew his contest of Hayes's appointment on January 25, 2016.
Following a hearing on March 9, 2016, the court granted Hayes's amended petition finding, among other things, that "[n]otice of hearing was given as required by law."
B. Petitions to admit an alleged 2014 holographic will to probate
In March 2017, Barbara's niece, represented by Moore's counsel, filed a petition for admission to probate of a writing alleged to be a holographic will executed by Barbara on or about December 25, 2014 (the 2014 holographic will), in which she left her entire estate to Moore. Hayes objected to the petition on the grounds that Barbara's niece lacked standing to bring it. Barbara's niece withdrew her petition on April 7, 2017.
On April 10, 2017, Moore filed his own petition to admit the 2014 holographic will. Hayes opposed this petition as untimely, among other grounds.
On June 19, 2017, the court bifurcated Moore's petition to probate Barbara's alleged holographic will, ordering that a trial on the timeliness of that petition would take place before trial of the remaining issues. Following a two-day trial on July 31 and August 1, 2017, the court found that Moore's petition was untimely under section 8226 and a judgment of dismissal was entered on November 1, 2017.
C. Moore's motion to vacate March 9, 2016 order for probate
On September 5, 2017, Moore filed a motion seeking to vacate the March 9, 2016 order for probate on the ground that the 2015 affidavit submitted with the proof of publication was defective, thus depriving the court of jurisdiction and rendering the order for probate void. Moore argued that the 2015 affidavit was defective and inadmissible in three ways: (1) the declarant was not identified as the printer or publisher of the newspaper, or as the printer or publisher's foreman or "principal clerk," as required by section 1262 and Code of Civil Procedure section 2010; (2) the declarant did not attest to the truth of the matters stated in the 2015 affidavit "under penalty of perjury," as required by Code of Civil Procedure section 2015.5; and (3) the notice failed to specify that it was regarding an "amended" petition for probate.
On appeal, Moore does not renew his third argument regarding the notice's failure to include the word "amended."
In his opposition to the motion to vacate, Hayes attached an affidavit from Jackie White, who had also executed the 2015 affidavit. In this affidavit (the 2017 affidavit), White avers that she is the "principal clerk of the printer of the Santa Cruz County Sentinel," that the notice of the petition to probate Barbara's estate was published in that newspaper on October 24, 26, and 30, 2015, and that she had "personal knowledge that the notice . . . was published on the three dates stated above." White further declared that she has "been employed by the Santa Cruz County Sentinel (which at times bore different names) for the past 37 years and have, during that time, been in charge of publication of notices including those of the type attached hereto." Unlike the 2015 affidavit, which was signed "under penalty of perjury, that the foregoing is true and correct to the best of my knowledge," the 2017 affidavit was signed "under penalty of perjury that the foregoing is true and correct."
Following a hearing, the probate court denied Moore's motion to vacate by written order dated November 15, 2017. The probate court expressly found that: (1) for purposes of compliance with sections 8124 and 1262, "a principal employee" of a printer is equivalent to printer's "principal clerk"; (2) White's statement that the allegations in the 2015 affidavit were true and correct "to the best of my knowledge" did not render the affidavit fatally uncertain; and (3) any defects in the 2015 affidavit were cured by the 2017 affidavit filed in support of the opposition to the motion to vacate.
Moore timely appealed.
II. DISCUSSION
To be successful on appeal, an appellant must be able to affirmatively demonstrate error on the record before the court. " ' "A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error." ' (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)" (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898.)
A. Notice requirements under the Probate Code
"The probate of an estate consists of a series of procedures, from the initial appointment of an executor or administrator to the final distribution of the estate. At each stage, the Probate Code specifies what notice must be given to interested parties. [Citation.] The notice requirements are jurisdictional, so failure to comply with the statutory requirements may render the resulting proceedings void. [Citations.] Thus, a claim of lack of jurisdiction is a corollary to a claim of insufficient notice. The trial court is without jurisdiction to make an order which has not been properly noticed, unless the right to notice has been waived." (Estate of Jenanyan (1982) 31 Cal.3d 703, 708.) Pursuant to section 8005, subdivision (b), "[t]he following matters shall be established [at the hearing on the probate petition]: (1) The jurisdictional facts, including: [¶] . . . [¶] (C) The publication of notice . . . ."
The provisions governing publication notice of a petition for administration of a decedent's estate are set forth in sections 8120 through 8125. The principal statute relevant to this case is section 8124, which provides that "[a] petition for administration of a decedent's estate shall not be heard by the court unless an affidavit showing due publication of the notice of hearing has been filed with the court. The affidavit shall contain a copy of the notice and state the date of its publication." The affidavit establishing that notice of hearing was in fact published "may be made by . . . the publisher or printer, or the foreman or principal clerk of the publisher or printer, showing the time and place of publication." (§ 1262.)
B. Hayes's procedural objections
Before turning to the merits of the appeal, we address and dispose of Hayes's procedural objections to this appeal.
Hayes argues that Moore's collateral attack is untimely, pointing to Moore's constant involvement in the probate proceedings from their commencement. Hayes also notes that Moore submitted an identical proof of publication affidavit in connection with his April 2017 petition to admit the 2014 holographic will to probate. Neither of these arguments are persuasive.
It is "well established that the superior court ha[s] jurisdiction at any time to set aside a judgment or order void on its face." (In re Estate of Estrem (1940) 16 Cal.2d 563, 571.) Whether an order or judgment is void on its face is generally a question of law subject to independent review on appeal. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496.) This court has said that a judgment is void on its face if "it granted relief which the court under no circumstances had the power to grant in the exercise of its subject matter jurisdiction." (Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 22.) Accordingly, assuming arguendo that the probate court lacked fundamental jurisdiction to act in this matter, there is no time limit within which a challenge to its orders and judgment can be brought.
Nor does it matter that Moore relied on identical proof of publication affidavits. The statutory adequacy of those affidavits do not depend on how many parties rely upon them. "[S]ubject matter jurisdiction, as distinct from jurisdiction of the parties, cannot be conferred by consent, waiver, or estoppel." (Estate of Buckley (1982) 132 Cal.App.3d 434, 451 (Buckley).)
C. The 2015 affidavit
Moore argues that the 2015 affidavit is defective in two ways: (1) White declared that she was a "a principal employee of the printer of the Santa Cruz Sentinel" but section 1262 requires that the affiant be a "publisher or printer, or the foreman or principal clerk of the publisher or printer"; and (2) White averred that the facts stated in the 2015 affidavit were "true and correct to the best of her knowledge" as opposed to simply being "true and correct." We agree that the 2015 affidavit is insufficient because a "principal employee" is not the same as a "publisher or printer, or the foreman or principal clerk of the publisher or printer." (§ 1262.)
The language of section 1262 is unambiguous and restricts the universe of persons who can provide the necessary proof of publication in probate actions. " ' "As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose." [Citation.] "We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent." [Citations.] The plain meaning controls if there is no ambiguity in the statutory language.' " (San Jose Unified School Dist. v. Santa Clara County Office of Education (2017) 7 Cal.App.5th 967, 975.)
According to the 2015 affidavit, White is not the "publisher or printer, or the foreman or principal clerk of the publisher or printer" as required by section 1262. She is "a principal employee of the printer" and, as Moore notes, there is no reason to believe that "a principal employee" of a publication has the requisite firsthand knowledge of what notices are actually printed in that publication. White could be in charge of human resources or information technology and still be considered "a principal employee." The purpose of section 1262 is to ensure that the probate court is provided the necessary proof that notice of hearing was actually published on the dates in question. The 2015 affidavit does not do so.
The record does not support the probate court's finding that a "principal employee" is essentially the same as a "principal clerk." The probate court opined that "[p]erhaps over 200 years ago, there was a relevant distinction between a printer's 'principal clerk' and its 'principal employee,' but the court finds no relevant distinction today." The problem with this conclusion is that it is founded on no evidence whatsoever. No one presented testimony or documents relating to the evolution of standards and practices in the newspaper industry, such as how responsibilities are apportioned to different employees and what titles they are given. While it may be true that in today's world there is no appreciable difference between a "principal employee" and a "principal clerk," that equivalence must be based on evidence, not supposition, particularly where the Legislature has provided express language on the matter.
Because we conclude that a "principal employee" is not one of the persons authorized to provide an affidavit under section 1262, we need not and do not address Moore's alternative objection to the 2015 affidavit's use of the phrase "to the best of her knowledge."
D. The 2017 affidavit
We now turn to the question of whether the 2017 affidavit was admissible.
Moore makes no argument that the 2017 affidavit does not comply with section 1262. His objections to its consideration are entirely procedural.
Moore contends that the affidavit was not admissible because it was not part of the judgment roll. We disagree.
On a collateral attack, " '[t]he record is the judgment roll,' " and the judgment roll " 'is the only evidence that can be considered in determining the question of jurisdiction.' " (Buckley, supra, 132 Cal.App.3d at p. 450, quoting Estate of Wise (1949) 34 Cal.2d 376, 382 (Wise).) In his briefing, Moore notes that the documents comprising the judgment roll in probate actions are listed in section 1050, and include: "[a]ny notice of the hearing, and any order to show cause made in the proceeding, with the affidavits showing publication, posting, or delivery pursuant to Section 1215 of the notice or order as may be required by law or court order." (§ 1050, subd. (a)(3).) Moore then argues that the 2017 affidavit, submitted with Hayes's opposition to his motion to vacate, is not included within the documents identified in section 1050 and was thus inadmissible.
We disagree. Moore references only a portion of section 1050 in his briefing. The statute reads, in pertinent part, as follows: "The judgment roll in a proceeding under this code consists of the following papers, where applicable: [¶] (a) In all cases: [¶] (1) The petition, application, report, or account that initiates a particular proceeding. [¶] (2) Any order directing notice of the hearing to be given. [¶] (3) Any notice of the hearing, and any order to show cause made in the proceeding, with the affidavits showing publication, posting, or delivery pursuant to Section 1215 of the notice or order as may be required by law or court order. [¶] (4) Any citation, in case no answer or written opposition is filed by a party entitled, by law or court order, to notice of the proceeding by citation, with the affidavit or proof of service and, if service of the citation is made by publication, the affidavit of publication and the order directing publication. [¶] (5) Any finding of the court or referee in the proceeding. [¶] (6) The order or statement of decision made in the proceeding. [¶] (7) Any letters, as defined in Section 52." (§ 1050, subd. (a).) To the extent that Moore is arguing the probate court was limited by section 1050 to consideration only of the documents submitted in connection with the 2016 hearing on Hayes's amended petition, we find no support for that position in the statute itself or in Buckley.
In Buckley, several petitions for probate were filed by various surviving relatives of the decedent, and ultimately the court granted the petition filed by decedent's sons. (Buckley, supra, 132 Cal.App.3d at p. 441.) Nearly a year later, decedent's daughter filed a petition to vacate the orders granting the sons' petition for probate. (Ibid.) After determining the daughter's petition constituted a "proper objection . . . to jurisdiction," the probate court vacated its previous order based on the sons' failure to publish notice of death. (Id. at p. 442.) On appeal, the court upheld the probate court's decision, finding that because the appellant failed to publish the notice or file the affidavit showing due publication of the notice of hearing as required by former section 333, the probate court lacked fundamental subject matter jurisdiction to proceed. (Buckley, supra, at p. 450.)
Former section 333, subdivision (c) provided "[n]o petition . . . [for probate or for letters of administration] may be heard by the court unless an affidavit showing due publication of notice has been filed with the clerk." (Buckley, supra, 132 Cal.App.3d at p. 447.) Section 333, subdivision (c) was repealed and replaced with section 8124 which provides "A petition for administration of a decedent's estate shall not be heard by the court unless an affidavit showing due publication of the notice of hearing has been filed with the court." (Stats. 1988, ch. 1199, § 81.5.) --------
In discussing whether the probate court's initial order granting the sons' petition was subject to collateral attack, the Buckley court noted that "[a]n order 'will not be open to collateral attack for lack of jurisdiction unless the record affirmatively shows that the court transgressed its statutory power to render the decree in question. [Citations.] The record is the judgment roll, and upon collateral attack it is the only evidence that can be considered in determining the question of jurisdiction.' " (Buckley, supra, 132 Cal.App.3d at p. 450, quoting Wise, supra, 34 Cal.2d at p. 382.)
The Buckley court did not, however, address the question of precisely what documents are included or excluded from the judgment roll nor did it need to do so. Instead, it noted that "[t]he clerk's transcript in this case contains those documents comprising the judgment roll and there is no proof of publication or affidavit or any other document or instrument which would show compliance with [former] Probate Code section 333. Moreover, appellant has not contended that publication pursuant to [former] Probate Code section 333 in fact occurred. Therefore, the failure of appellant to publish notice or to file the required affidavit appears from inspection of the judgment roll and thus the order is void on its face." (Buckley, supra, 132 Cal.App.3d at p. 450.)
The Buckley court did not address a situation where the probate court's order was challenged due to an allegedly defective "proof of publication or affidavit or any other document or instrument which would show compliance" with the statute, principally because the probate court was never presented with any such documents prior to making its original order. (Buckley, supra, 132 Cal.App.3d at p. 450.) Under those circumstances, there was no need for either the probate court or the court of appeal to consider looking outside the judgment roll—let alone determine the precise scope of what documents were part of the judgment roll—since the essential document, i.e., a proof of publication, did not exist.
Furthermore, had the appellants in the Buckley case sought to submit documents proving publication of notice, those documents would have been fraudulent because "no publication whatsoever occurred." (Buckley, supra, 132 Cal.App.3d at p. 449, italics added.) This reveals the fallacy of Moore's position. The appellants in Buckley failed to publish notice as required, but let us now assume that rather than simply failing to submit a proof of publication, they instead submitted a falsified affidavit which, on its face, fully complied with (former) section 333. The probate court, in reliance on this false document, grants the sons' petition for probate. Approximately one year later, decedent's daughter discovers the fraud and moves to vacate the order granting the petition to probate on the ground that the affidavit of proof of publication was false and no publication took place. In Moore's view, neither the probate court nor a reviewing court would be able to overturn the original order because the daughter's later-filed evidence is not part of the judgment roll. No one could argue that such a result could be considered anything but absurd.
Accordingly, we decline to read section 1050 so narrowly. We find that the 2017 affidavit, filed in connection with Hayes's opposition to the motion to vacate was admissible and properly considered by the probate court in ruling on the motion.
Anticipating that his judgment roll argument may not persuade, Moore has a fallback position. He claims that, in deciding whether to consider the 2017 affidavit as curing the 2015 affidavit, we should look to the (pre-1970) law pertaining to "constructive" contempt proceedings. Under that prior law, if the charging affidavit was defective, the court was deemed to lack fundamental subject-matter jurisdiction to proceed, even if a valid affidavit was later produced at the contempt hearing. (See, e.g., McCormick v. Superior Court of Los Angeles County (1960) 184 Cal.App.2d 657, 660 [failure to provide essential facts in the affidavit charging contempt cannot be cured by proof upon the hearing and court is without jurisdiction to proceed].)
We are not convinced that contempt proceedings can be analogized to probate actions even in this limited respect. "Because of the potential punishment, . . . [a contempt] proceeding is considered quasi-criminal, and the defendant possesses some of the rights of a criminal defendant." (People v. Gonzalez (1996) 12 Cal.4th 804, 816.)
However, even if we were to follow Moore's suggestion, the inflexible rule which applied to the constructive contempt cases he cites was substantially relaxed in 1970 upon enactment of Code of Civil Procedure section 1211.5. That statute "represents the Legislature's desire that contempt proceedings be adjudicated and reviewed on the merits and that contempt judgments not be set aside because of technical defects in an initiating affidavit." (Reliable Enters. v. Superior Court (1984) 158 Cal.App.3d 604, 617, italics added, disapproved on another ground in Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1248, fn. 13.) Under Code of Civil Procedure section 1211.5, "a defect or imperfection in form that does not prejudice a substantial right of the accused on the merits cannot affect the trial, order, judgment, or other proceeding; and no order or judgment of conviction will be set aside for a pleading error in the affidavit or statement, unless, after examining the entire case, including the evidence, the court finds that the error complained of has resulted in a miscarriage of justice." (Crawford v. Workers' Comp. Appeals Bd. (1989) 213 Cal.App.3d 156, 169-170.)
Moore suggests the enactment of Code of Civil Procedure section 1211.5 supports his argument that section 1262 must continue to be construed so as to preclude subsequent curative affidavits. In his view, a party to a probate proceeding gets one chance to prove that the notice of hearing was published as required by section 8124 and once a supporting affidavit is filed, the moment is frozen in time. Even in a case like this, where no contemporaneous objection was made to the affidavit's sufficiency which might have led the probate court to require further evidence to demonstrate that publication actually occurred, the affidavit must stand or fall in its original form. Even if, as in this case, it turns out that the affiant was, in fact, "a principal clerk of the printer," who had "for the past 37 years . . . been in charge of publication of notices including [notices of probate hearings]" and thus had "personal knowledge that the notice . . . was published on the three dates stated above." Again, such a result would be absurd.
It is telling that Moore never once suggests, either here or in the court below, that the required notice of hearing was not actually published. In this modern age, it would presumably be quite easy to verify whether or not the notice of hearing appeared in the Santa Cruz Sentinel on October 24, 26, and 30, 2015, by checking the archived copies of those issues, either in person or perhaps online. Rather, Moore's entire complaint is that the affidavit of proof of that publication was defective. The reason why the law requires publication of the notice of hearing is to provide due process to those persons that may be interested in the estate. It is the publication which provides that notice, not the affidavit.
Moore asks this court to turn back time—not because the world was not notified of the hearing on Hayes's petition as required by the Probate Code—but because the proof of publication affidavit did not sufficiently demonstrate the affiant's personal knowledge of that publication. The (originally insufficient) affidavit was subsequently clarified to conclusively establish that the required publication took place, therefore satisfying due process and confirming the probate court's fundamental subject matter jurisdiction. Accordingly, the trial court did not err in denying the motion to vacate.
III. DISPOSITION
The order denying the motion to vacate is affirmed. Hayes is entitled to his costs on appeal.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Elia, J.