Opinion
F079691
02-19-2020
Estate of JEAN MICHEL IRIGOYEN, Deceased. LAURA KUHNE-IRIGOYEN, Petitioner and Respondent, v. OSCAR LUNA, Claimant and Appellant.
Oscar Luna, in pro. per., for Claimant and Appellant. Christine J. Levin for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CEPR01043)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Debra J. Kazanjian, Judge. Oscar Luna, in pro. per., for Claimant and Appellant. Christine J. Levin for Petitioner and Respondent.
Before Peña, Acting P.J., Smith, J. and Snauffer, J.
-ooOoo-
Appellant Oscar Luna, representing himself, appeals from the probate court's May 2019 order denying his third motion to vacate an April 26, 2016, judgment addressing the ownership of certain real property. Luna contends the portions of the judgment directing the expungement of the lis pendens he recorded against the real property were void because (1) he did not receive notice the probate court intended to expunge his lis pendens and, therefore, the probate court lacked jurisdiction to order expungement; (2) the probate court did not have jurisdiction to expunge another court's lis pendens; and (3) the expungement order was void because the court entered it prematurely, giving the judgment conclusive effect before the statutory period for challenging the order expired.
"Lis pendens" is a Latin term meaning "[a] pending lawsuit." (Black's Law Dict. (8th ed. 2004) p. 950.) "Lis pendens" and "notice of lis pendens" can be used to describe "[a] notice, recorded in the chain of title to real property, required or permitted in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit are subject to its outcome." (Ibid.)
California's statutory scheme uses the term "notice of pendency of action" rather than "lis pendens." (Code Civ. Proc., § 405.2.) The statutory scheme is contained in the five chapters of title 4.5 of part 2 of the Code of Civil Procedure and consists of sections 405 through 405.61.
We conclude the errors raised by Luna do not establish the probate court lacked jurisdiction in a fundamental sense. Rather, the errors claimed, if established, would demonstrate the court acted in excess of its jurisdiction and, thus, the judgment was only voidable, not void. As defects rendering an order or judgment voidable must be raised in a timely manner and Luna's motion to vacate was brought over three years after the judgment was entered, the motion to vacate was properly denied.
We therefore affirm the probate court's order.
BACKGROUND
In September 2014, Jean Michel Irigoyen (Irigoyen) died. In November 2014, respondent Laura Kuhne-Irigoyen (Estate Administrator) filed a petition for letters of administration of his estate in the probate department of Fresno County Superior Court and subsequently was appointed the administrator of the estate. The probate matter was assigned case No. 14CEPR01043; an order filed in that matter is the subject of the current appeal.
The respondent's brief of the Estate Administrator states her name is now Laura Draeken.
In October 2014, Luna filed a lawsuit in Fresno County Superior Court, case No. 14CECG02921, against Irigoyen's estate. Luna's complaint alleged Irigoyen held certain vehicles and real property commonly known as 2131-2137 Amador Street, Fresno (Lots) in private trust for Luna's benefit. Later in October 2014, Luna submitted a request for lis pendens recordation, and the superior court signed an order granting the request. The request, order and attached "Notice of Pending Action" were recorded by the Fresno County Recorder on November 3, 2014, as document number 2014-0125214 (2014 Lis Pendens).
In May 2015, Luna filed a second amended complaint in case No. 14CECG02921. The amended pleading included causes of action for (1) declaratory relief as to ownership of the property allegedly held in private trust, (2) conversion, and (3) injunctive relief. The second amended complaint listed Luna's mailing address as a post office box in Beaumont, Texas, where Luna was incarcerated in a federal facility.
In June 2015, despite the pending lawsuit filed by Luna, the Estate's Administrator filed a petition in the probate matter to determine the ownership of the Lots and the 2003 Porsche 911 Turbo. The Estate Administrator's petition requested the court to direct the transfer of the property to her and to direct her to control, manage, administer and dispose of the property for the benefit of the estate. Luna asserts the Estate Administrator did not personally serve him with the petition and, instead, attempted to serve him by mailing it to a post office box in Oklahoma.
On April 7, 2016, Luna challenged the Estate Administrator's June 2015 petition by filing a motion to dismiss or abate the petition for lack of jurisdiction. On April 18, Estate Administrator mailed her trial brief to Luna at the Beamount post office box. The next day, the probate court held a bench trial on the petition. Luna did not appear as he was still incarcerated in Texas. The minute order states the probate court was satisfied with the proof, granted the petition by determining the estate owned the Lots and Porsche, and directed counsel to prepare orders and a judgment for review. The Judgment
Subsequent references to dates are to dates in 2016, unless otherwise stated.
On April 26, the probate court filed a judgment confirming the estate's ownership of the Lots (Judgment). The Judgment included the court's specific finding that "Luna is not a creditor of the estate and that he holds no money judgment against the decedent, so [his] citing of Estate of Dabney [(1951)] 37 Cal.2d 672, at 678 is inapplicable." The Judgment addressed the 2014 Lis Pendens by stating:
"2. The [Lots], as an asset of the estate of decedent, [are] not subject to the lis pendens recorded by Oscar Luna at document number 2014.125214, which is hereby dissolved, null and void. It is understood that this Order is to be recorded evidencing that the lis pendens is dissolved, null and void.
"3. [The Estate Administrator] is directed to record this Order in the office of the Fresno County Recorder confirming that the [Lots] constitute an asset of the estate of Jean Michel Irigoyen, aka J. M. Irigoyen, aka Jean Michael Irigoyen so that it may be disposed in accordance with the probate of the estate of the decedent."
As directed, the Estate Administrator submitted the judgment to the Fresno County Recorder. It was recorded as document number 2016-0053861 on April 29.
Meanwhile, on April 28 in case No. 14CECG02921—the action in which Luna claimed ownership of the Lots and obtained permission to record the 2014 Lis Pendens—the superior court held an order-to-show-cause hearing. The minute order from the hearing states the court dismissed the matter without prejudice. Luna did not appeal the dismissal of the action. Thus, Luna's subsequent attacks on the portions of the Judgment expunging the 2014 Lis Pendens are, in effect, an attempt to reinstate a "notice of pendency of action" relating to an action (i.e., case No. 14CECG02921) in which Luna's cause of action for declaratory relief as to ownership of the Lots was dismissed and is no longer pending. Writ Petition
We note that Luna did appeal one order filed in case No. 14CECG02921. In January, before the order-to-show-cause hearing and dismissal order, Luna filed an appeal challenging an order denying his motion for judgment on the pleadings. We assigned the appeal case No. F073104. The Estate Administrator moved to dismiss the appeal on the ground it was taken from a nonappealable order. In February 2017, this court granted Estate Administrator's motion to dismiss.
Code of Civil Procedure section 405.2 provides in full: " 'Notice of pendency of action' or 'notice' means a notice of the pendency of an action in which a real property claim is alleged."
Code of Civil Procedure section 405.4 defines a "[r]eal property claim" as including the "causes of action in a pleading which would, if meritorious, affect ... title to, or the right to possession of, specific real property ...."
On May 6, a notice of entry of the Judgment was served by mail. Later that month, Luna filed a petition for writ of mandate requesting this court to strike as void paragraph Nos. 2 and 3 of the Judgment relating to the 2014 Lis Pendens. Luna's petition stated that pursuant to Code of Civil Procedure section 405.39, the probate court's expungement of the 2014 Lis Pendens was not appealable, but the statute expressly authorized writ review of such an order. On May 31, this court summarily denied Luna's writ petition.
While Luna's petition for writ of mandate was pending in this court, Luna filed various documents in the probate court related to a motion for new trial and to set aside the Judgment. On May 27, the probate court denied Luna's new trial motion because he failed to meet the statutory deadlines. First Probate Appeal
On June 29, Luna filed a notice of appeal from the probate court's May 27 order. We assigned that appeal case No. F073996, noted an order denying a new trial is not directly appealable, and exercised our discretion to treat Luna's notice of appeal as relating to the Judgment, which was the subject of Luna's motion for new trial.
In that appeal, Luna argued (1) the Judgment was void because the probate court lacked subject matter jurisdiction as the superior court assumed and exercised jurisdiction over the properties; (2) any jurisdiction the probate court had was lost when, in case No. F073104, he appealed the superior court's ruling on his motion for judgment on the pleadings; (3) the probate court did not have jurisdiction to dissolve the 2014 Lis Pendens because such a motion must be brought in the superior court action; and (4) the probate court did not have authority to dissolve the 2014 Lis Pendens because a statutory ground for expungement had not been established.
The Estate Administrator moved to dismiss Luna's appeal in case No. F073996 on the ground he failed to submit a record adequate for appellate review of the arguments raised. We agreed Luna failed to provide an adequate record and, in May 2017, issued an opinion dismissing the appeal. To summarize, Luna's first two attacks on the Judgment—the writ petition in case No. F073802 and the appeal in case No. F073996—were unsuccessful. 2018 Motion to Vacate Judgment
In June 2018, Luna mounted another attack by filing his first motion to vacate the Judgment. Luna argued the Judgment was void for lack of jurisdiction. In August 2018, the probate court heard the motion and Luna, now residing in Fresno, appeared on his own behalf. The court denied the motion to vacate. The order addressed Luna's argument that he was not served with the Estate Administrator's June 2015 petition, stating the record reflected that Luna personally appeared in the probate matter on August 6, 2015, when he attended the initial hearing on the petition via CourtCall. Thus, the court concluded this appearance waived any defect in service. The court also rejected two arguments asserting the probate court lacked jurisdiction to enter the Judgment. Second Probate Appeal
In September 2018, Luna filed a notice of appeal challenging the August 2018 order denying his motion to vacate the Judgment. The appeal was assigned case No. F078194. In January 2019, Luna requested the appeal be dismissed. This court granted his request and dismissed the appeal. 2019 Motion to Vacate Judgment
Less than a week after the dismissal of Luna's appeal of the August 2018 order denying his motion to vacate the Judgment, Luna filed another motion to vacate the Judgment as void for lack of jurisdiction. In March 2019, the motion was heard, Luna appeared on his own behalf, and no one else appeared. The court denied the motion, issuing a six-page order discussing the merits of Luna's arguments. The court noted it was Luna's third motion to vacate the Judgment, stating the second motion had been taken off calendar due to Luna's appeal of the order on his first motion and, after the dismissal of that appeal, Luna had renewed his second motion by filing the third motion. The court determined the reasons raised in Luna's third motion had not been raised in his June 2018 motion to vacate the Judgment.
Luna argued (1) the probate court lacked jurisdiction because an appeal (case No. F073104) was pending in the civil action that was the basis for the 2014 Lis Pendens; (2) a valid trial complying with Code of Civil Procedure section 631.7 had not taken place because no sworn testimony or evidence was presented; and (3) the 2014 Lis Pendens was expunged without notice and, thus, was void as a matter of law. These arguments were considered by the probate court and rejected in its order filed May 31, 2019. The court stated Luna's claim to ownership of the Lots had been determined against him in a court trial and, as a result, allowing the 2014 Lis Pendens to remain in place would have been inappropriate under the legal principles set forth in Mix v. Superior Court (2004) 124 Cal.App.4th 987.
In July 2019, Luna appealed the probate court's order denying his motion to vacate the Judgment. On the notice of appeal form, Luna marked the box stating the appealed order was an order after judgment under Code of Civil Procedure section 904.1, subdivision (a)(2). Judicial Notice
Luna's litigation of the ownership of the Lots has generated multiple cases in the Fresno County Superior Court and these cases have resulted in six matters other than the present appeal being filed with this court. To create a full record and promote internally consistent decisions, this court notified the parties of its intent, on its own motion, to take judicial notice of all documents in its files for case Nos. F073104, F073802, F073996, F077542, F077679, and F078194. (See Smith v. Selma Community Hospital (2010) 188 Cal.App.4th 1, 45 [Fifth Dist. grants its own motion and takes judicial notice of entire appellate record of prior appeal].) The notice given fulfilled this court's obligation under Evidence Code section 459, subdivision (c) and section 455, subdivision (a) by "afford[ing] each party reasonable opportunity ... to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed." The parties were informed that the absence of a timely response would be deemed consent to the court granting its own motion. (See Cal. Rules of Court, rule 8.54(c).) When no timely responses were submitted, we granted our sua sponte motion for judicial notice.
DISCUSSION
I. APPEALABILITY
A threshold issue raised by Estate Administrator is whether the order denying Luna's motion to vacate the Judgment was an appealable order. In Estate Administrator's view, Luna had the opportunity to appeal the Judgment and allowing him to appeal the order denying his latest motion to vacate the Judgment would effectively authorize multiple appeals. We exercise our independent judgment in resolving questions of appealability. (See Lester v. Lennane (2000) 84 Cal.App.4th 536, 556-561.)
A. Basic Principles
In Conservatorship of Smith (1970) 9 Cal.App.3d 324, the Second District stated that appeals in general probate matters are limited, explaining the desirability of such limitations by quoting a practice guide:
" 'One reason given for the restriction on appeals in probate matters is the fact that probate law is very selfish and resents the interference of outsiders. ... It abhors delaying tactics and if there was a free appeal in every probate matter, estates could be unreasonably delayed. [¶] If the interests of anyone are affected by a probate order and he would be harmed, he has available the possibility of obtaining a writ of mandate or writ of prohibition from an appropriate court.' (3 Condee Probate Court Practice, Trials, New Trials and Appeals (2d ed.) § 1982, p. 122.)" (Conservatorship of Smith (1970) 9 Cal.App.3d at p. 327.)
Accordingly, our analysis of whether the challenged order is appealable begins with the general rule that there is no right to appeal from any orders in probate except those specified in the Probate Code. (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1126.) Probate Code section 1300 provides a list of probate orders that are appealable and section 1303 supplements that general list by specifying orders with respect to a decedent's estate that are appealable. For example, subdivision (f) of section 1303 provides an order "[d]etermining heirship, succession, entitlement, or the persons to whom distribution should be made" is appealable. The Probate Code provisions are "exclusive" and, because they are designed to minimize delay in probating trusts and estates, are "much narrower" than the statutes in the Code of Civil Procedure authorizing appeals more generally. (McDonald v. Structured Asset Sales, LLC (2007) 154 Cal.App.4th 1068, 1073.)
All unlabeled statutory references are to the Probate Code.
The appealable orders listed in sections 1300 and 1303 do not include an order on a motion to vacate, whether brought under section 473 of the Code of Civil Procedure or under the court's equitable authority. In Estate of O'Dea (1940) 15 Cal.2d 637, our Supreme Court stated it had "on numerous occasions held that no appeal will lie from an order in probate denying relief under section 473 of the Code of Civil Procedure." (Id. at p. 639.) We conclude this general rule extends to nonstatutory motions to vacate seeking relief based on the trial court's equitable power. (See generally, Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982 [motion to vacate on equitable grounds may be available even if statutory relief is unavailable].)
B. Luna's Showing of Appealability
First, we note Luna's opening brief has not addressed the issue of appealability. Thus, it fails to comply with California Rules of Court, rule 8.204(a)(2)(B) because it does not "explain why the order appealed from is appealable." An appellant must demonstrate the challenged order is appealable to carry his or her burden to affirmatively show reversible error. (See generally, Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [appellant's burden].) Second, Luna did not file a timely reply brief addressing Estate Administrator's arguments about the lack of an appealable order.
Consequently, Luna has failed to demonstrate the challenged order is appealable. Because showing the challenged order is appealable is part of an appellant's burden of demonstrating reversible error, we conclude Luna has failed to carry that burden. II. DISTINGUISHING VOID FROM VOIDABLE JUDGMENTS
Although Luna has not shown the challenged order is appealable, we exercise our discretionary authority and construe Luna's appeal as a timely petition for writ review of the order. (See Quintanar v. County of Riverside (2014) 230 Cal.App.4th 1226, 1232.) As a result, we reach the underlying question of whether the April 2016 judgment is void. We exercise this discretionary authority because (1) a void judgment is a nullity and subject to collateral attack and (2) it is efficient for the court system and the parties to resolve the question of voidness in this proceeding.
A. Basic Legal Principles
1. Standard of Review
Generally, when an appellate court is presented with the foundational question of whether a challenged order or judgment is void, as opposed to voidable, it conducts a de novo review. (Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 146.) Therefore, we independently review the question of whether the Judgment is void. (Ibid.)
2. Subject Matter Jurisdiction
" 'A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction "relates to the inherent authority of the court involved to deal with the case or matter before it." [Citation.] Lack of jurisdiction in this "fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." ' " (In re Andres G. (1998) 64 Cal.App.4th 476, 482.) "Because it concerns the basic power of a court to act, the parties to a case cannot confer fundamental jurisdiction upon a court by waiver, estoppel, consent, or forfeiture." (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 807.)
Case law provides examples of situations where the trial court lacked jurisdiction in this fundamental or strict sense. "A state court has no jurisdiction to determine title to land located outside its territorial borders, for the subject matter is entirely beyond its authority or power. [Citation.] A court has no jurisdiction to adjudicate upon the marital status of persons when neither is domiciled within the state. [Citations.] A court has no jurisdiction to render a personal judgment against one not personally served with process within its territorial borders .... [Citations.] A court has no jurisdiction to hear or determine a case where the type of proceeding or the amount in controversy is beyond the jurisdiction defined for that particular court by statute or constitutional provision." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.)
3. Procedural Irregularities
It is well established that "jurisdictional errors can be of two types. A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable." (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56 (Goddard).) A lack of fundamental jurisdiction is " ' " 'an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' " ' " (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339 (Kabran).) " 'Even when a court has fundamental jurisdiction, ... the Constitution, a statute, or relevant case law may constrain the court to act only in a particular manner, or subject to certain limitations.' [Citation.] We have described courts that violate procedural requirements, order relief that is unauthorized by statute or common law, or otherwise 'fail to conduct [themselves] in the manner prescribed' by law as acting 'in excess of jurisdiction.' [Citation.] Because a court that acts in excess of jurisdiction still has 'jurisdiction over the subject matter and the parties in the fundamental sense' [citation], any such act is 'valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time' [citation]. In contrast to errors concerning a court's fundamental jurisdiction, '[e]rrors which are merely in excess of jurisdiction should be challenged directly ... and are generally not subject to collateral attack once the judgment is final ....' " (Id. at pp. 339-340.)
Most procedural errors are not jurisdictional. (Goddard, supra, 33 Cal.4th at p. 56.) Subject matter jurisdiction is the power to hear and determine a cause; it " ' "implies power to decide a question wrong as well as right." ' " (Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control (1961) 55 Cal.2d 728, 731.) A court with fundamental power to hear a case may make errors with respect to procedure, pleading, evidence, and substantive law, and most of those errors are not jurisdictional. (Goddard, at p. 56.) Even errors in mandatory procedures are not necessarily jurisdictional in the fundamental sense. (Kabran, supra, 2 Cal.5th at p. 341.)
"Nonetheless, certain procedural errors are jurisdictional. [Citations.] An error is jurisdictional ' "only where the clear purpose of the statute is to restrict or limit the power of the court to act and where the effective enforcement of such restrictions requires the use of extraordinary writs of certiorari or prohibition." ' " (Goddard, supra, 33 Cal.4th at p. 57.) Whether a procedural requirement is jurisdictional is a matter of legislative intent. (Kabran, supra, 2 Cal.5th at p. 343.) Construing a statute to determine whether the procedure or time limit it prescribes is jurisdictional begins with the language of the statute. (Ibid.) Relevant considerations include: whether the statute mentions jurisdiction; whether the limitation is stated in " 'unusually emphatic form,' " is reiterated several times in different ways, or asserts that no relief may be granted without compliance with the procedure or time limit; and whether there is a consequence or penalty for noncompliance. (Id. at pp. 343-344.)
Application of the rule that a failure to follow the proper procedure generally is not jurisdictional in the fundamental sense and at most results in an act in excess of jurisdiction, which is voidable rather than void, is illustrated in various cases. In Kabran, after the jury found in favor of the defendant, the plaintiff moved for a new trial based on newly discovered evidence. (Kabran, supra, 2 Cal.5th at p. 334.) The supporting affidavits and memorandum of points and authorities were not timely filed, but the defendant failed to object. (Id. at pp. 334-335.) The trial court granted the new trial motion and the defendant appealed, arguing in part that the affidavits were not timely filed under Code of Civil Procedure section 659a, the deadline was jurisdictional, and the belated filings were void. (Kabran, at p. 335.)
The court determined the deadline for filing supporting affidavits was not a matter of fundamental jurisdiction. (Kabran, supra, 2 Cal.5th at p. 347.) It distinguished between a lack of fundamental jurisdiction and an act in excess of jurisdiction, and concluded even mandatory procedural requirements are not necessarily jurisdictional in the fundamental sense. (Id. at p. 342.) " 'There are many time provisions, e.g., in procedural rules, that are ... mandatory; these are binding, and parties must comply with them to avoid a default or other penalty. But failure to comply does not render the proceeding void' in a fundamental sense." (Id. at p. 341.) Noncompliance with a jurisdictional requirement cannot be excused or forfeited and can be challenged at any time. (Id. at p. 342.) In contrast, "[n]oncompliance with a mandatory rule can result in invalidation of the action so long as the noncompliance is properly raised; a party can forfeit its challenge to the noncompliance by failing to object." (Ibid.)
The court noted there is a presumption that courts have jurisdiction unless it is specifically curtailed by the Legislature. (Kabran, supra, 2 Cal.5th at p. 342.) " 'While the courts are subject to reasonable statutory regulation of procedure and other matters, they will maintain their constitutional powers in order effectively to function as a separate department of government. [Citations.] Consequently an intent to defeat the exercise of the court's jurisdiction will not be supplied by implication.' " (Id. at p. 343.)
The court contrasted the language of Code of Civil Procedure section 659a, regarding the time period for filing supporting affidavits, with statutes governing the time period within which to bring the motion for new trial (Code Civ. Proc., § 659) and the time within which the trial court must rule on the motion (Code Civ. Proc., § 660), which have been held to be jurisdictional. (Kabran, supra, 2 Cal.5th at p. 342.) Code of Civil Procedure section 659, subdivision (b), provided that the " 'times specified [for filing the notice of intent to move for a new trial] shall not be extended by order or stipulation ....' " (Kabran, at p. 344.) Code of Civil Procedure section 660 mentioned jurisdiction expressly, providing: " '[T]he power of the court to rule on a motion for a new trial shall expire 60 days from' the filing of the notice of intent or service of notice of entry of judgment. 'If such motion is not determined within said period of 60 days, ... the effect shall be a denial of the motion without further order of the court.' " (Kabran, at p. 344.) The language of Code of Civil Procedure section 659a, however, did not "reveal a clear legislative intent to deprive courts of the power to consider untimely filed affidavits." (Kabran, at p. 343.) It simply provided that either party " 'shall' serve and file affidavits" within a specified period. (Ibid.) It did not mention jurisdiction expressly or deny the trial court the power to grant relief after the expiration of that period. (Id. at pp. 343, 344.) "Further, unlike sections 659 and 660, section 659a contain[ed] no ' "consequence or penalty" ' for noncompliance with the affidavit filing deadlines." (Id. at p. 344.)
In light of the absence of express language in Code of Civil Procedure section 659a depriving the court of jurisdiction in the event of noncompliance, the presumption against depriving courts of jurisdiction, and the purposes of the statute, the court concluded the time period for filing affidavits was not jurisdictional. (Kabran, supra, 2 Cal.5th at p. 347.) The defendant could have objected in the trial court; noncompliance, in the absence of objection, did not deprive the trial court of jurisdiction to consider the affidavits. (Id. at p. 346.) Consequently, the defendant could not challenge the untimeliness of the affidavits for the first time on appeal. (Id. at p. 347.)
In Lee v. An (2008) 168 Cal.App.4th 558 (Lee), the trial court gave the plaintiffs notice of a case management conference and ordered them to serve the notice on the defendant. (Id. at p. 561.) The trial court's notice warned that failure to appear at the case management conference could result in imposition of sanctions, including striking the answer. The plaintiffs gave the defendant notice of the case management conference, but on their own form, which did not contain the warning. (Ibid.) The defendant did not appear at the case management conference, and the trial court set a further one. The plaintiffs' notice again failed to mention the possibility of imposition of sanctions for failure to appear. The defendant did not appear. (Id. at pp. 561-562.) The trial court struck defendant's answer and entered her default and a default judgment. (Id. at p. 562.) Three years later, the defendant moved to set aside the default and default judgment on the ground they were void due to lack of notice that failure to appear could result in terminating sanctions. (Ibid.) The trial court denied the motion. (Id. at p. 563.)
The defendant's motion was brought pursuant to Code of Civil Procedure section 473, subdivision (d), which allows a void judgment to be set aside without any time limit. (Lee, supra, 168 Cal.App.4th at p. 563.) The court distinguished between void and voidable orders. (Id. at pp. 563-564.) Void orders are those entered by a court that lacks jurisdiction in the fundamental sense, and they may be attacked at any time. (Id. at p. 563.) "But when a statute authorizes a prescribed procedure and the court acts contrary to the authority conferred, the court exceeds its jurisdiction," and the order is voidable. (Id. at p. 564.) Applicable statutes and court rules authorized the trial court to impose sanctions for failure to comply with local rules, but only after giving the party notice and an opportunity to be heard. (Ibid.) The notices were insufficient, and the trial court exceeded its authority by imposing sanctions for failure to comply with the local rules without prior notice and an opportunity to be heard. (Id. at p. 565.)
The court concluded the trial court "had fundamental jurisdiction over the parties and the subject matter, but acted in excess of its jurisdiction by imposing terminating sanctions without adequate prior notice. The resulting default and default judgment were thus voidable, not void." (Lee, supra, 168 Cal.App.4th at p. 565.) Accordingly, the defendant was not entitled to relief under Code of Civil Procedure section 473, subdivision (d), which applied only to void judgments. (Lee, at p. 566.) " '[A] party seeking to set aside a voidable judgment or order must act to set aside the order or judgment before the matter becomes final.' " (Id. at pp. 565-566.) The defendant had not done so and was not entitled to relief from a voidable judgment. (Id. at p. 566.)
In Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86 (Johnson), the plaintiffs obtained an order for the defendant to appear for deposition, produce documents, and pay monetary sanctions; the court warned the defendant it would entertain a motion for terminating sanctions if the defendant did not comply. (Id. at p. 90.) When the defendant failed to comply, the plaintiffs applied for and obtained an ex parte order striking the defendant's answer. (Ibid.) The trial court subsequently entered a default judgment against the defendant. (Id. at p. 91.) Twelve years later, the defendant moved to set aside the default and default judgment on the ground they were void because they resulted from a terminating sanction imposed ex parte. (Id. at p. 93.) The trial court denied the motion. (Ibid.) On appeal, the court determined the trial court had fundamental jurisdiction over both the subject matter and the parties when the default judgment was entered and, therefore, affirmed the denial of the motion to set aside. (Id. at pp. 98, 100.)
B. Luna's Jurisdictional Arguments
1. Notice of Intent to Expunge
Luna contends he was constitutionally and statutorily entitled to notice the probate court intended to expunge the 2014 Lis Pendens. Luna cited Code of Civil Procedure sections 405.30 and 1005 as the statutory basis for providing notice. The former provision states in part: "At any time after notice of pendency of action has been recorded, any party ... may apply to the court in which the action is pending to expunge the notice." Code of Civil Procedure section 1005, subdivision (a)(11) provides that written notice shall be given for a "Motion to Expunge Notice of Pendency of Action pursuant to Section 405.30."
Luna has cited no authority holding a court that is deciding the merits of competing claims of ownership to real property has jurisdiction to expunge the unsuccessful claimant's notice of pendency of action only if that claimant has been provided notice that expungement may accompany the decision on the merits of the competing ownership claims. Furthermore, the Code of Civil Procedure provisions addressing notices of pendency of action do not expressly state (1) a court deciding the merits of competing ownership claims may not expunge a notice of the unsuccessful party or (2) a court must give notice of an intent to expunge before it has the jurisdiction to expunge. These factors and the presumption against depriving courts of jurisdiction support the conclusion that the lack of notice of intent to expunge is not jurisdictional. (See Kabran, supra, 2 Cal.5th at p. 347.)
Consequently, assuming a requirement for notice of intent to expunge exists when the court is deciding the merits of the competing ownership claims, we conclude the absence of notice does not deprive the court of jurisdiction in a fundamental sense—that is, deprive it of jurisdiction over the subject matter or the parties. Rather, expungement in that situation, at most, would be in excess of the court's jurisdiction and, thus, the expungement order would be voidable rather than void. In our view, the lack of a specific notice about expungement is similar to the insufficient notice given in Lee or the ex parte entry of a terminating sanction in Johnson. In those cases, the appellate court determined the defects did not render the orders void. Thus, we conclude any failure to give a specific notice that the determination of the competing ownership claims could result in the expungement of the 2014 Lis Pendens did not render the Judgment or the portion of the Judgment addressing the 2014 Lis Pendens void.
2. Probate Court's Jurisdiction
Luna contends the probate court did not have jurisdiction to expunge another court's lis pendens. The probate court rejected this argument by concluding the Judgment containing the provisions for expunging the 2014 Lis Pendens was made in the court in the county where Luna's action was pending—namely, the Fresno County Superior Court. The court stated the probate court was simply a division or department of the superior court and, furthermore, the probate court is one of general jurisdiction.
Section 800 provides: "The court in proceedings under this code is a court of general jurisdiction and the court, or a judge of the court, has the same power and authority with respect to the proceedings as otherwise provided by law for a superior court, or a judge of the superior court ...." --------
We reject Luna's challenge to the probate court's jurisdiction because the statutory language relied upon by Luna states a party "may apply to the court in which the action is pending to expunge the notice." (Code Civ. Proc., § 405.30.) The statutory language does not direct the party to file a motion to expunge in the pending action itself. Thus, we will not interpret the phrase "court in which the action is pending" as requiring the motion to be filed in a particular action—that is, under a specific case number. Instead, we adopt the literal meaning of the words used and conclude the Fresno County Superior Court is the court in which the action was pending and the probate court, as part of the superior court, had jurisdiction to address both the ownership of the property and the collateral matter of expunging the notice of pendency of action once ownership was determined.
In addition, the adoption of a plain meaning interpretation of the statutory phrase avoids fragmenting the probate court's authority and the resulting inefficiencies. Probate courts have general subject matter jurisdiction over the decedent's property, which empowers them to resolve competing claims over the title to that property. (Estate of Heggstad (1993) 16 Cal.App.4th 943, 952; see Estate of Baglione (1966) 65 Cal.2d 192, 197 [superior court sitting in probate that has jurisdiction over one aspect of a claim to certain property can determine all aspects of the claim].) We reject Luna's interpretation because it would prevent a probate court from resolving all aspects of the competing claims to ownership of the Lots.
3. Premature Expungement
Luna contends the probate court did not have the authority to direct the 2014 Lis Pendens be expunged immediately. Luna appears to rely on Code of Civil Procedure section 405.35, which provides in pertinent part:
"No order expunging a notice of pendency of action shall be effective, nor shall it be recorded in the office of any county recorder, until the time within which a petition for writ of mandate may be filed pursuant to Section 405.39 has expired. No order expunging a notice of pendency of action shall be effective, nor shall it be recorded in the office of any county recorder, after a petition for writ of mandate has been timely filed pursuant to Section 405.39, until the proceeding commenced by the petition is finally adjudicated." (Italics added.)
Under Code of Civil Procedure section 405.39, a petition for writ of mandate seeking review of an expungement order must be filed "within 20 days of service of written notice of the order by the court or any party." We assume for purposes of this appeal that the statute required the effectiveness of the Judgment's expungement order to be delayed until the 20-day period expired without the filing of a petition for writ of mandate. In other words, we assume the Judgment violated the statutory requirement. Based on the earlier discussion of procedural irregularities, we conclude the violation of the statutory requirement was an act in excess of the court's jurisdiction and, as such, it rendered the expungement order in the Judgment voidable rather than void. (See Kabran, supra, 2 Cal.5th at pp. 341-342 [failure to comply with many mandatory procedural requirements does not render the proceeding void in a fundamental sense].)
In summary, Luna has not established any fundamental jurisdictional error. Rather, the defects Luna raised are the type that render a judgment voidable, not void. Therefore, the trial court correctly denied Luna's latest motion to vacate the Judgment.
DISPOSITION
The May 31, 2019 order denying appellant's motion to vacate is affirmed. Respondent shall recover her costs on appeal.