Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RP05243768
Ruvolo, P.J.
INTRODUCTION
Appellant Damen Whitehead is the remainder beneficiary of a trust established by his deceased father, Floyd Whitehead. Respondent Lillian Whitehead, who is appellant’s grandmother, is the trustee and life beneficiary of the trust. Eighteen months after Floyd died, the probate court granted appellant’s petition to require respondent to file an accounting, and ordered the accounting to be filed within two months. Respondent did not file the accounting until ten months later.
Because Floyd Whitehead, appellant, and respondent all share the same surname, we refer to Floyd Whitehead by his first name to avoid confusion, meaning no disrespect.
After the accounting was filed, the probate court gave appellant 30 days to file formal objections to it. Due to an illness in appellant’s counsel’s household, the objections were filed two weeks after the deadline. The probate court ruled that the objections had been waived because they were untimely filed, and denied appellant’s subsequent motion to set aside that ruling on various grounds, including excusable neglect.
We conclude that the trial court abused its discretion in denying appellant’s motion to set aside the order deeming the objections waived as untimely filed. Accordingly, we reverse the order denying that motion, and remand for further proceedings on the merits of appellant’s objections.
FACTS AND PROCEDURAL BACKGROUND
On October 16, 2001, Floyd executed a revocable living trust and various accompanying documents (collectively the trust agreement). The trust agreement provided that after Floyd’s death, the trust estate would be distributed to appellant at the rate of three percent per year. It also provided, however, that if Floyd predeceased his mother, respondent Lillian Whitehead, then she would have “the benefit of everything that is in trust” and “complete use of the entire estate” “for the remainder of her natural life”; and that the distribution of the trust estate to appellant would not begin until after respondent’s death. Floyd died on March 28, 2004, predeceasing respondent, who thereupon became the successor trustee and life beneficiary of the trust estate.
On November 28, 2005, appellant filed a petition to compel respondent to provide him with an accounting. On January 24, 2006, the probate court entered an order memorializing respondent’s agreement to provide appellant with an accounting for the period from March 28, 2004, through January 31, 2006. The written order did not set any deadline within which the accounting was to be provided, but the parties agreed at the hearing, and the court orally ordered, that it be provided by March 24, 2006. Appellant later granted respondent an extension until May 24, 2006, but as of October 17, 2006, the accounting still had not been provided, so appellant filed a petition for an order to show cause why respondent should not be held in contempt.
On October 20, 2006, respondent filed a partial accounting. On January 16, 2007, respondent filed a document correcting “clerical errors” in the accounting. At a hearing regarding the accounting, held the same day, appellant dropped his petition seeking to hold respondent in contempt, but indicated that he wished to file objections to the accounting. The court gave appellant until February 16, 2007, to file objections, and scheduled a hearing on the objections for March 5, 2007.
Appellant’s counsel contends that the deadline was not made clear to her at the hearing. The record belies this contention. The transcript of the hearing reflects that after the probate judge invited appellant’s counsel to file and serve verified objections to the accounting “within 30 days,” and appellant’s counsel responded “Okay,” the probate judge added, “Okay. That would be by no later than February 16th.” Moreover, the minutes of the January 16, 2007, hearing also reflect that the court set a deadline of February 16, 2007, for the objections to be filed and served.
Appellant did not file his objections until March 2, 2007. On the same date, respondent filed another document correcting additional clerical errors in the original accounting.
At the hearing on March 5, 2007, the matter was assigned to a new judge. He concluded that appellant’s objections were untimely filed, and consequently deemed them waived. He then entered an order approving the accounting.
On April 17, 2007, appellant filed a motion for an order setting aside the orders entered on March 5, 2007 (the March 5 orders), on the grounds of extrinsic fraud, and of mistake, surprise, inadvertence, or excusable neglect under Code of Civil Procedure section 473, subdivision (b) (section 473(b)). In a declaration filed in support of the motion, appellant’s counsel explained that she was a sole practioner, and that during the first half of February 2007, continuing through approximately February 20, 2007, a member of her household “was incapacitated by a virus, which had hepatitis-like symptoms.” The household member had contracted the illness at her job, and a relative of one of the household member’s coworkers had died of it. These facts were corroborated by a declaration from the household member submitted with appellant’s original ex parte motion.
Appellant had initially filed a similar motion ex parte on March 13, 2007. The court declined to consider that motion, however, stating that a noticed hearing was required. The court also rejected appellant’s application for an order shortening time to hear his subsequent noticed motion.
Out of respect for appellant’s counsel’s privacy and that of her household, we have not identified the referenced household member in this opinion.
Given her household member’s life-threatening illness, appellant’s counsel explained, she had made it her priority to care for her, and had been distracted and interrupted from her work by this care and also by her own “agitation and anxiety over contracting this virus” herself. She also stated that she had attempted to contact respondent’s counsel to obtain a stipulation for a continuance, but had not heard back from him, and that the objections had taken her longer to prepare than she anticipated. Finally, she explained that she had not brought up the subject of her household member’s illness at the March 5, 2007, hearing because of the “very personal nature” of the matter, which she did not want to discuss in an open courtroom full of people.
The motion for relief under section 473(b) was heard, and denied by minute order, on August 27, 2007 (the August 27 order). Appellant timely filed a notice of appeal on August 31, 2007, followed by an amended notice of appeal on September 28, 2007.
Respondent does not dispute that the August 27 order is appealable under Probate Code section 7250, subdivision (a).
DISCUSSION
Appellant’s opening brief presents numerous grounds for challenging the August 27 order, but we need discuss only one in order to resolve this appeal. The motion that appellant filed on April 17, 2007, included a request for discretionary relief under section 473(b). For the reasons stated below, we agree with appellant that the probate court abused its discretion in denying that request. Reversal of the August 27 order is therefore required.
Appellant also appealed from the portion of the August 27 order denying his petition to remove respondent as the trustee, but this issue is not discussed in his opening brief. We therefore deem that issue waived.
The discretionary relief provision of section 473(b) states that the “court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Unlike the mandatory provision of section 473(b), the discretionary provision applies not only to defaults and default judgments, but also to any “ ‘judgment, dismissal, order, or other proceeding’ ” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254 (Zamora)), including “the failure of counsel to meet a procedural deadline.” (Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1193; accord, Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418-1419.)
Because our decision focuses on the discretionary relief provision of section 473(b), we need not and do not reach the question whether the mandatory provision of section 473(b), requiring relief from default based on an attorney’s declaration of fault, applies under the circumstances of the current case. (See generally Wagner v. Wagner (2008) 162 Cal.App.4th 249, 258-259 [mandatory provision of section 473(b) not applicable to motion for relief from probate court order entered after counsel failed to file timely objection].)
We review a trial court’s ruling under the discretionary relief provision of section 473(b) for abuse of discretion. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) However, because the law favors the adjudication of disputes on the merits, courts liberally construe section 473(b) in favor of granting relief and allowing a decision on the merits, and any doubts in applying section 473(b) must be resolved in favor of the party seeking relief from default. (Maynard v. Brandon (2005) 36 Cal.4th 364, 371-372; Zamora, supra, 28 Cal.4th at p. 256; Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479; Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, superseded on another point by statute as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64-65; Huh v. Wang, supra, 158 Cal.App.4th at pp. 1419-1420; McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 359, superseded on another point by statute as stated in Association for Sensible Development at Northstar, Inc. v. Placer County (2004) 122 Cal.App.4th 1289, 1293-1295.) For the same reason, an appellate court will more carefully scrutinize orders denying relief under section 473(b) than orders that permit the case to proceed on the merits. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980; Elston v. City of Turlock, supra, 38 Cal.3d at p. 233; Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1343.)
A party seeking discretionary relief under section 473(b) must show “mistake, inadvertence, surprise, or excusable neglect,” and the decision whether to grant such relief is a matter of the trial court’s discretion. (See Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989.) A party seeking such relief on the grounds of excusable neglect bears the burden of demonstrating that the neglect was excusable. (Cochran v. Linn (1984) 159 Cal.App.3d 245, 252.) The test of whether neglect was excusable is whether a reasonably prudent person under the same or similar circumstances might have made the same error. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276; Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128.)
In determining whether or not discretionary relief under section 473(b) is warranted, it is also relevant whether the moving party moved promptly to seek relief. (Zamora, supra, 28 Cal.4th at p. 258; Huh v. Wang, supra, 158 Cal.App.4th at p. 1420.) If so, only “very slight evidence” is required to support a trial court’s decision to relieve a default. (Shamblin v. Brattain, supra, 44 Cal.3d at p. 478; see also Elston v. City of Turlock, supra, 38 Cal.3d at p. 233.)
Another relevant consideration is whether the other party will be prejudiced if relief is granted. (Elston v. City of Turlock, supra, 38 Cal.3d at p. 233; McCormick v. Board of Supervisors, supra, 198 Cal.App.3d at p. 360.) “[T]he law ‘looks with [particular] disfavor on a party who, regardless of the merits of his cause, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.’ [Citation.]” (Zamora, supra, 28 Cal.4th at p. 258; accord, Au-Yang v. Barton (1999) 21 Cal.4th 958, 963.) Thus, “[e]ven if the mistake were caused by some negligence on [the moving party’s] part, this negligence might be excused if it in no way prejudiced the opposing party. [Citations.]” (Weitz v. Yankosky (1966) 63 Cal.2d 849, 856, italics omitted.)
When the moving party acts promptly and no prejudice to the opposing party is shown, then “[u]nless inexcusable neglect is clear, the policy favoring trial on the merits prevails. [Citation.]” (Elston v. City of Turlock, supra, 38 Cal.3d at p. 235.) Here, there can be no question that appellant acted diligently in seeking to set aside the March 5 orders. His initial ex parte motion seeking that relief, albeit improper, was filed on March 13, 2007, only eight days after March 5, and his correctly filed noticed motion was filed only about a month later on April 17, 2007. Moreover, respondent has at no time contended or demonstrated that any specific prejudice to her would result from the March 5 orders being set aside. Thus, the showing of excusable neglect required of appellant in order to entitle him to relief under section 473(b) was not strong, and in determining whether the trial court abused its discretion in denying such relief, we must closely scrutinize the trial court’s decision, and resolve doubts in appellant’s favor.
The cost and inconvenience entailed in litigating appellant’s objections on their merits do not constitute prejudice for the purpose of this analysis. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 821-822.) Financial hardship is not the kind of prejudice contemplated in addressing a motion for relief under section 473(b). The question, rather, is whether the affected party will be less able to establish its case as a result of the court’s ruling. (Carbondale Machine Co. v. Eyraud (1928) 94 Cal.App. 356, 360.)
In support of appellant’s motion under section 473(b), his counsel explained that her failure to file the objections by February 16, 2007, was due to the life-threatening illness of a member of her household. In the court below, though not in her brief on appeal, respondent correctly cited Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 280 (Transit Ads) for the proposition that an attorney’s disabling illness, if established, constitutes excusable neglect for a failure to comply with procedural time limits, if the attorney promptly moves for relief as soon as the disability ends. Similarly, it has been held that “[t]he illness of a party’s counsel, so severe as to prevent him from appearing and trying a case, is good ground for [relief under section 473(b)], provided such party did not know of it in time to retain other counsel or was prevented in some other way from doing so.” (Van Dyke v. MacMillan (1958) 162 Cal.App.2d 594, 599 [appellate court reversed order denying motion to set aside judgment against defendant whose attorney failed to appear at trial].)
Here, the disabling illness was not that of appellant’s counsel herself, but that of a member of her household, and, in effect, of her family. Nonetheless, a similar principle applies. Transit Ads reasoned that for neglect to be excusable, it “must be an act or omission which might have been committed by a reasonably prudent person under the same circumstances. [Citations.]” (Transit Ads, supra, 270 Cal.App.2d at p. 279.) Under these facts, appellant’s counsel’s omission to file objections in a timely fashion is one that a reasonably prudent person might commit given the exigencies and understandable time and emotional distractions resulting from her obligation to care a member of her household, who was suffering from a life-threatening illness.
In sum, the record reflects appellant’s counsel acted promptly in seeking relief from the March 5 orders, and made a strong showing in support of her claim of excusable neglect. Moreover, there is no indication in the record that any demonstrable prejudice to respondent would have resulted from considering the objections on their merits even though they were filed two weeks late.
Moreover, despite appellant’s counsel’s request for a statement of the probate court’s reasons, we are puzzled by the trial court’s explicit refusal to explain why the motion was being denied. Given the compelling good cause proferred by counsel, without an explanation of the probate court’s order, we “cannot conclude [the] court’s decision had any reasonable basis.” (Moran v. Oso Valley Greenbelt Assn. (2001) 92 Cal.App.4th 156, 160-161.)
The only remark made by the trial judge in response to counsel’s request for a statement of reason for the decision is the odd comment: “It is what it is. It is what it is. And it’s denied.”
For all of the foregoing reasons, we are convinced that the probate court abused its discretion in denying discretionary relief from the late filing of appellant’s objections. Accordingly, we reverse, and remand for further proceedings on the merits. We emphasize that in so doing, we express no opinion as to whether any of the objections are or are not meritorious. We hold only that the probate court must determine that question, rather than rejecting the objections altogether due to their belated filing.
On April 24, 2008, appellant filed a motion requesting this court to take judicial notice of certain documents relating to a proposed sale of one of the trust’s assets. The motion was not opposed, and this court granted it without determining the relevance of the documents. In light of the grounds on which this appeal has been resolved, it now appears that the documents are not relevant to this appeal, though they may prove relevant to further proceedings in the probate court.
DISPOSITION
We reverse the probate court’s order of August 27, 2007, which declined to set aside its orders, entered March 5, 2007, deeming appellant’s objections waived and approving respondent’s accounting. On remand, the probate court shall vacate its order of August 27, 2007; enter a new order granting appellant’s motion to set aside its orders of March 5, 2007; and set a hearing on the merits of appellant’s objections to the accounting, filed March 2, 2007. Appellant’s request that this case be assigned to a different judge on remand is denied as it is not supported by a showing that the interests of justice would best be served by such an order. (Code Civ. Proc., § 170.1, subd. (c).) Appellant shall recover his costs on appeal.
We concur: Reardon, J., Sepulveda, J.