Kalenian v. Insen

Filed 4/14/14
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

GEORGETTE KALENIAN et al., B248228

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BP120314)
v.

GEORGE ELIAS INSEN, as Trustee, etc.,
et al.,

Defendants and Respondents.

APPEAL from orders of the Superior Court of Los Angeles County, Roy L. Paul,
Judge. Reversed and remanded with directions.
Osborn Law, Richard G. Osborn and Blair J. Berkley for Plaintiffs and Appellants.
MacLean Chung Law Firm and Graham Thomas MacLean, Jr., for Defendants and
Respondents.

*
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of part III (B).
 I. INTRODUCTION

Plaintiffs, Georgette Kalenian, Ida Reza, Elizabeth Van Item and Alex Tony Insen
(Alex), 1 appeal from an order denying their motion to vacate two December 15, 2011
dismissal orders. Plaintiffs filed a Probate Code2 section 17200 petition seeking to
replace defendant, George Elias Insen (George),3 as trustee of the Elias George Insen
Separate Property Trust and determine the trust’s construction. On December 15, 2011,
Judge Mitchell L. Beckloff dismissed plaintiffs’ section 17200 petition and default prove-
up request without prejudice. This dismissal resulted in plaintiffs being barred under the
statutes of limitations from securing section 17200 relief. Plaintiffs contend they had no
notice of Judge Beckloff’s December 15, 2011 dismissal orders until October 29, 2012.
On January 15, 2013, plaintiffs filed a Code of Civil Procedure section 473, subdivision
(b) motion to vacate the December 15, 2011 dismissal orders. Plaintiffs argued they were
entitled to Code of Civil Procedure section 473, subdivision (b) mandatory and
discretionary equitable relief. On February 26, 2013, Judge Roy L. Paul denied
plaintiffs’ motion as untimely filed. In the published portion of the opinion, we hold
plaintiffs may appeal the denial of the motion for relief from Judge Paul’s order denying
their motion to vacate. In the unpublished portion of the opinion we conclude plaintiffs
are entitled to equitable relief from the December 15, 2011 orders. Thus, we reverse the
orders under review.

1
Several of the parties have the same surname. First names will be used to
differentiate them. No disrespect is intended.
2
Future statutory references are to the Probate Code unless otherwise noted.
3
George and Juliet Ainian are named as defendants. However, Ms. Ainian was a
necessary party in this action and no allegation of wrongdoing was made against her.
Further references to a defendant are to George.

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 II. BACKGROUND

A. The Elias George Insen Trust

Elias George Insen (Elias) had six children—Ms. Kalenian, Ms. Reza, Ms. Van
Item, Alex, Juliet Ainian, and George. On June 23, 1999, Elias executed a written
declaration of revocable living trust (the trust). The trust property included: property
located at 1175 North Edgemont Street in Los Angeles (the Edgemont property); 50
percent of the property and a business, George’s Auto Repair, located at 3655 West Pico
Boulevard (the Pico property); a Washington Mutual savings account; a Washington
Mutual checking account; and a 1984 Lincoln Continental. On July 21, 1999, Elias
conveyed his interest in the Edgemont property to the trust.
Trust Article 1.023, concerning distribution of the trust balance, provides: “Upon
the death of the Grantor [Elias], the Trustee hereof is directed to make the following
specific distributions: [¶] [Alex], [the Edgemont property] . . . . [George] is to continue
to pay fifty percent (50%) of the outstanding mortgage payments on these properties.
However, if [Alex] refinances these properties, then [George] is no longer obligated to
pay fifty (50%) of the mortgages. [¶] [George], business (George’s Auto Repair) . . . .
[¶] The balance of the Trust Estate shall be distributed to the following individuals, upon
the principle of representation ([i]f one of the beneficiaries of [Elias] dies, then his or her
share will go equally to his or her then surviving issue. If no surviving issue exists, then
distribute such deceased beneficiary’s share equally among the surviving beneficiaries[]),
in the following percentages: [¶] [Ms. Kalenian] 25% [¶] [Ms. Ainian] 25% [¶] [Ms.
Reza] 25% [¶] [Ms. Van Item] 25%.”
On May 8, 2003, George caused Elias to execute an “Amendment No. 1 to [the
trust] dated June 23, 1999 . . . .” The trust amendment provided that defendant was to
receive the Edgemont property. Defendant also caused Elias to execute a quitclaim deed
conveying an undivided one-half interest in the Pico property to defendant.

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 Elias died on May 23, 2003. Defendant succeeded Elias as trustee of the trust. On
December 19, 2003, defendant conveyed the Edgemont and Pico properties to himself.
Defendant sold the Edgemont property and retained the sale proceeds.

B. Civil Action

On May 5, 2006, plaintiffs filed a civil action to cancel the trust amendment and
quitclaim deed and for misappropriation damages of the trust’s real property. (Kalenian
v. Insen (Super. Ct. L.A. County, 2009, No. BC351977).) Plaintiffs argued defendant
used undue influence to acquire the trust amendment and quitclaim deed. On December
17, 2008, Judge Richard L. Fruin, Jr., issued the statement of decision. Judge Fruin
found defendant obtained the trust amendment and quitclaim deed through undue
influence and cancelled them. Judge Fruin also found defendant wrongfully
misappropriated and sold the Edgemont property and awarded $743,225.51 in damages to
Alex. Judge Fruin did not rule on the ownership of the Pico property, deeming it within
the probate court’s exclusive jurisdiction. On August 3, 2009, plaintiffs and defendant
entered into a written settlement agreement. Under the terms of the settlement
agreement: defendant agreed to resign as trustee; ownership of the Pico property would
be determined by the probate court in an action filed by plaintiffs no later than December
31, 2009; and for statute of limitations purposes, plaintiffs’ claims regarding the Pico
property would be deemed filed on January 30, 2009.

C. Probate Action

On December 30, 2009, plaintiffs filed their section 17200 petition. It is this
petition that was dismissed without prejudice on December 15, 2011 by Judge Beckloff.
Plaintiffs allege defendant should be denied any trust benefits. On March 2, 2011,
plaintiffs filed an amended section 17200 petition.

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 On November 19, 2010, defendant filed a section 850 petition to determine
ownership of the Pico property. On May 13, 2011, plaintiffs filed a summary judgment
motion regarding defendant’s section 850 petition. On August 16, 2011, Judge Beckloff
granted plaintiffs’ summary judgment motion thereby resolving the section 850 petition.
The order granting summary judgment was filed on December 22, 2011. Judge Beckloff
also scheduled a default prove-up hearing pursuant to Code of Civil Procedure section
585 for September 27, 2011.
At the August 16, 2011 hearing, Judge Beckloff raised an issue concerning proof
of personal service of presumably the section 17200 petition on George. The following
transpired: “THE COURT: . . . I have two notes with regard to your petition, which is,
I don’t have personal service on George . . . . So I don’t know if you have that with you.
[Plaintiff’s counsel, Richard G.] OSBORN: I don’t. [¶] THE COURT: And the notice
didn’t have the right to answer legend on it. [¶] So I think -- do you have those items?
[¶] MR. OSBORN: No, Your Honor. I just have the conformed first amended petition
with me. [¶] Obviously, counsel for [George] has been here on a number of occasions.
So to the extent that there’s any problem with service, it seems to me that that’s been
waived by general appearance. [¶] THE COURT: I guess -- why don’t we do this,
Mr. Osborn[?] Why don’t I set it for a default prove-up[?] You can submit a new notice,
just so that we’re clear.” Judge Beckloff also gave Mr. Osborn additional time to file
further evidence: “So if you needed to submit anything additional, you can submit it for
the default prove-up date. . . . I’ll deem it submitted on the default prove-up that day.
[¶] And if [George] shows up, then I’ll have to figure out why we don’t have a
response.”
On August 29, 2011, plaintiffs’ counsel, Mr. Osborn, wrote a letter to defendant’s
attorney, Mr. Emerson, offering to stipulate to set aside default against defendant. On
September 9, 2011, Mr. Osborn filed an ex parte application to continue the default
prove-up hearing. Judge Beckloff continued the default prove-up hearing to December
15, 2011.

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 On December 12, 2011, plaintiffs filed their evidence in support of default
judgment. Mr. Osborn declared that on December 12, 2011, his paralegal, Heather
Schourup, contacted the probate court to advise that a mediation was scheduled.
Ms. Schourup requested the default prove-up hearing be taken off calendar pending
completion of the mediation. Ms. Schourup’s declaration states, “The clerk, who was
very cooperative, agreed to take the hearing off calendar.”
On December 15, 2011, Judge Beckloff denied without prejudice plaintiffs’
default prove-up and their section 17200 petition. Judge Beckloff’s oral pronouncement
was, “Both matters denied without prejudice.” Mr. Osborn believed, based on being
informed by Ms. Schourup, that the default prove-up hearing had been taken off calendar.
The clerk served no notice from December 15, 2011 through 2012 regarding Judge
Beckloff’s ruling.
On February 29, 2012, the California State Bar suspended Mr. Emerson. In
March 2012, Mr. Osborn first learned of Mr. Emerson’s suspension. David I. Karp, the
mediator, later cancelled the mediation because of Mr. Emerson’s suspension. On May
13, 2012, Mr. Osborn filed a motion to recuse Mr. Emerson. On July 10, 2012, Judge
Beckloff granted the motion and the order was filed on August 6, 2012.
On July 13, 2012, Mr. Osborn wrote a letter to defendant seeking to reschedule the
mediation. Defendant then retained G. Thomas MacLean as counsel. On September 7,
2012, Mr. MacLean wrote to Mr. Osborn, “My office has been retained by George . . . in
the above matter, and I am also sending with this letter a copy of the substitution of
attorney form[.]” On October 4, 2012, Mr. MacLean requested Mr. Osborn cancel the
October 9, 2012 mediation. Mr. Osborn first discovered the section 17200 petition was
dismissed on October 29, 2012.
On January 15, 2013, plaintiffs filed their motion for an order vacating the
December 15, 2011 orders. The motion to vacate the December 15, 2011 orders was
based upon the attorney neglect provisions of Code of Civil Procedure section 473,
subdivision (b) and the probate court’s equitable powers. On February 26, 2013, Judge
Paul denied the motion as untimely filed. Judge Paul found the motion was filed past the

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six-month time limit. Judge Paul also found plaintiffs were not diligent in filing their
motion. Plaintiffs filed their notice of appeal on April 16, 2013.

III. DISCUSSION

A. Appealability

Judge Beckloff’s December 15, 2011 order dismissing plaintiffs’ section 17200
petition without prejudice had the net effect of dismissing their probate action with
prejudice. This is because the statute of limitations would have expired. Judge
Beckloff’s December 15, 2011 order was thus appealable. (See Griset v. Fair Political
Practices Com. (2001) 25 Cal.4th 688, 698; Lyon v. Goss (1942) 19 Cal.2d 659, 670).
Obviously, plaintiffs could not timely appeal the dismissal order because they did not
know of it until October 29, 2012. (See Cal. Rules of Court, rule 8.104(a)(1)(C) [if no
notice, 180 days after entry of judgment or appealable order]; Annette F. v. Sharon S.
(2005) 130 Cal.App.4th 1448, 1456.)
However, defendant correctly notes that this is an appeal in a trust dispute. As a
result, the Probate Code provisions concerning appealability are exclusive. The
appealability of probate disputes in general is governed by section 1300. (Estate of
Stoddart (2004) 115 Cal.App.4th 1118, 1125-1126; Boys & Girls Club of Petaluma v.
Walsh (2008) 169 Cal.App.4th 1049, 1057.) In addition, section 1304 lists appealable
orders in trust proceedings. (See Johnson v. Kotyck (1999) 76 Cal.App.4th 83, 86.)
Here, plaintiffs appeal from the order denying their motion to vacate. Plaintiffs contend
the order is appealable as an order made after a final judgment. (Code Civ. Proc., §
904.1, subd. (a)(2); Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 654.)
Defendant argues though that the ruling on the post-judgment motion to vacate is not
appealable. Defendant does not assert the notice of appeal from Judge Paul’s post-
judgment order is untimely. Rather, defendant argues the order itself is non-appealable.

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 Defendant relies on Estate of Stoddart, supra, 115 Cal.App.4th at pages 1125-
1126. In Estate of Stoddart, the Court of Appeal found the plaintiff’s reconsideration
motions under Code of Civil Procedure section 1008 were not appealable. (Ibid.) The
Court of Appeal held: “It is well established that ‘[a]ppeals which may be taken from
orders in probate proceedings are set forth in . . . the Probate Code, and its provisions are
exclusive.’ [Citation.] ‘There is no right to appeal from any orders in probate except
those specified in the Probate Code.’ [Citation.]” (Id. at pp. 1125-1126; Estate of
Miramontes-Najera (2004) 118 Cal.App.4th 750, 754; Estate of Downing (1980) 106
Cal.App.3d 159, 163; see Code Civ. Proc., § 904.1, subd. (a)(10) [an appeal may be taken
from an order made appealable by the provisions of the Probate Code].)
In terms of that portion of plaintiffs’ motion which sought relief pursuant to Code
of Civil Procedure section 473, subdivision (b), it is not appealable. Our Supreme Court
has held, “[Former section] 1240 of the Probate Code specifies the orders and
judgment[s] in probate from which an appeal will lie, and an order denying relief under
section 473 of the Code of Civil Procedure is not one of the orders so specified.” (In re
Estate of O’Dea (1940) 15 Cal.2d 637, 638; see In re Conservatorship of Harvey (1970)
3 Cal.3d 646, 652 [holding order denying motion to vacate under Code of Civil
Procedure section 473 was not appealable in probate matter].) Because this is a probate
matter, the trial court’s order denying plaintiffs’ motion to vacate under Code of Civil
Procedure section 473, subdivision (b) is not appealable.
However, the issue remains as to Judge Paul’s ruling resolving the issue of
whether the December 15, 2011 order could be set aside on equitable grounds is
appealable. Plaintiffs contend this matter is appealable under the narrow exception
enumerated in Estate of Baker (1915) 170 Cal. 578, 582-583 (Baker). In Baker, the
settlor died and his sister was an heir. (Id. at p. 581.) She contested the will and argued
undue influence was present. (Ibid.) She died before the trial. (Ibid.) On the day of the
trial, the probate court was advised of her death by her former attorneys. (Ibid.) The
settlor’s executor requested that the probate court dismiss the contest because the
contestant’s right of action died with her. (Ibid.) The probate trial court granted the

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motion. (Ibid.) No administrator for the sister had been appointed at the time of the
motion. (Ibid.) Approximately two months later, an administrator was appointed and
served and filed a motion for an order vacating the dismissal and to substitute for the
sister. (Ibid.) The probate court denied the motion and the sister’s administrator
appealed. (Ibid.)
The settlor’s executor argued that an order refusing to vacate an order was not
appealable. (Baker, supra, 170 Cal. at p. 581.) Our Supreme Court rejected this
argument. (Id. at pp. 582-583.) Our Supreme Court acknowledged the general rule did
not permit an appeal from an order denying a motion to vacate. (Id. at p. 582.) However,
our Supreme Court noted, “But there are a large number of cases arising under an entirely
different state of facts where the reason for the rule being otherwise, the rule itself is
otherwise. In those cases two appeals are not permitted, but, to the end that justice may
be done, one appeal is permitted from an order refusing to vacate a judgment or decree
when, for reasons involving no fault of the appealing party, he has never been given an
opportunity to appeal directly from the judgment or decree. These are cases where one’s
rights or interests are injuriously affected by a judgment or by an appealable order in
litigation to which he is not formally a party, or in which if a party, he has not received
due notice, so that as to him the judgment or appealable order is made ex parte. In such
cases it is always permissible for the one injured to make himself a party to the litigation,
if he has not been a party, and, after he has thus submitted to the jurisdiction of the court,
to move the vacation of the decree or appealable order injuriously affecting his interest,
and to appeal if the motion be denied. The same right is open to one who is a party to the
litigation and against whom such an order or decree has been given improperly and ex
parte. These cases, of course, arise when the motions are made after the time limited by
law for the appeal has expired. The moving parties, for the indicated reasons, have not
been able to avail themselves of the right to appeal. And only by this method can they be
protected in this valuable right.” (Id. at pp. 582-583; see In re Estate of Sanders (1924)
70 Cal.App. 127, 129.)

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 Baker is consistent with other decisions which allow an order denying a motion to
vacate to be appealed under narrow specific circumstances. For example, in Younger v.
Superior Court (1978) 21 Cal.3d 102, 110, our Supreme Court explained the application
of the rule articulated in Baker in the context of an ex parte order: “The appeal was
actually taken from the order entered July 1, 1976, denying the Attorney General’s
motion to quash the original destruction order of March 5, 1976. Mack contends the
order of July 1 was not appealable, relying on the general rule that an appeal will not lie
from a denial of a motion to vacate an appealable judgment or order on grounds which
existed prior to entry of the latter. (Litvinuk v. Litvinuk (1945) 27 Cal.2d 38, 44.) In the
case at bar, however, the original destruction order was entered wholly ex parte. The
Attorney General’s motion to quash was thus his first opportunity to litigate the matter at
the trial level, and he should not be penalized for exercising that right. In such
circumstances the courts have long recognized that the general rule is subject to an
exception permitting the order or judgment to be challenged by a motion to vacate,
followed by an appeal if that motion is denied. (See, e.g., De la Montanya v. De la
Montanya (1896) 112 Cal. 101, 118-119; [Baker, supra,] 170 Cal. [at pp.] 582-584;
Daley v. County of Butte (1964) 227 Cal.App.2d 380, 388-389.)”
A key element of decisions following Baker is that an appealable judgment is
entered ex parte with no notice to the appealing party. And such an order issued without
notice to an appealing party necessitates the filing of a motion to set aside the judgment
which is deemed appealable. (Hellbush v. Superior Court (1929) 99 Cal.App. 501, 505
[divorce decree entered ex parte; party could move to set aside the decree an appeal if the
request was denied]; Estate of Sanders, supra, 70 Cal.App. at p. 129 [in Baker, “it was
pointed out that the order of dismissal under the facts of that case was in the nature of an
ex parte order, and, under those circumstances, the order refusing to vacate the order
dismissing the contest was an appealable order”]; 9 Witkin, Cal. Procedure (5th ed. 2008)
Appeal, § 198, p. 275 [“Thus, the original appealable . . . order may have been made ex
parte . . . so that the aggrieved party had no actual knowledge of it in time to appeal . . . .
In any of these situations, the aggrieved party may obtain review by an appeal from the

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denial of a motion to vacate.”].) Under these circumstances, plaintiffs may appeal the
denial of their motion to vacate.
We recognize a sound argument can be made that Baker should be limited to its
narrow facts based upon In re Estate of O’Dea, supra, 15 Cal.2d at pages 639-640.
O’Dea involved a motion to vacate pursuant to Code of Civil Procedure section 473
made by two litigants in a probate matter. The basis of the motion to set aside the
probate court order is not specified in the opinion. (Id. at p. 638.) In the first part of the
opinion, our Supreme Court reiterated the general rule that appeals in probate matters are
controlled by former section 1240. (Id. at pp. 638-639.) The second part of the opinion
explains why Baker was not controlling: “The peculiar and unusual situation arising out
of the facts in that case does not lay down any general exception to the rule that appeals
in probate matters must be limited to those orders and judgments specified in section
1240 of the Probate Code. On the other hand, the language of that decision and the
question thereby decided should be construed with relation to the facts of that case, and
confined to cases of similar import. The facts in the instant case have no similarity to
those in the [Baker] case and for that reason the decision herein should not in any manner
be controlled by what was said in that case.” (In re Estate of O’Dea, supra, 15 Cal.2d at
pp. 639-640.)
However, the “peculiar and unusual situation” described above and which was
present in Baker involved the fact a party could not have been present at a hearing. No
doubt, the issue is very close. However, the present case involves a peculiar and unusual
situation where a litigant was assured by court staff that a hearing would not proceed and
it did. This case is closer to Baker which is premised upon equitable considerations than
to O’Dea where there is no evidence of an ex parte ruling. And, there is no evidence in
O’Dea of a probate court staff’s failure to give mandatory notice of a ruling made outside
the presence of all parties.
Like the plaintiff in Baker, plaintiffs here could not avail themselves of the right to
appeal because they were unaware of Judge Beckloff’s dismissal orders until October 29,
2012. Complicating matters, the clerk had a duty to notify the parties of Judge

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Beckloff’s ruling. Code of Civil Procedure section 1019.5, subdivision (b) provides,
“When a motion is granted or denied on the court’s own motion, notice of the court’s
order shall be given by the court in the manner provided in this chapter, unless notice is
waived by all parties in open court and is entered in the minutes.” (Eldridge v. Superior
Court (1989) 208 Cal.App.3d 1350, 1353, fn. 2.) California Rules of Court, rule
3.1109(a) provides, “When the court rules on a motion or makes an order or renders a
judgment in a matter it has taken under submission, the clerk must immediately notify the
parties of the ruling, order, or judgment. The notification, which must specifically
identify the matter ruled on, may be given by mailing the parties a copy of the ruling,
order, or judgment . . . .” The record is uncontradicted no notice of Judge Beckloff’s
December 15, 2011 dismissal orders was served upon the parties as required by law. It is
undisputed no party was present for the December 15, 2011 hearing. Accordingly,
plaintiffs may appeal Judge Paul’s order denying their motion to vacate.

[Part III (B) is deleted from publication.}

B. The Merits

Plaintiffs argue they are entitled to equitable relief under a theory of extrinsic
mistake. Our Supreme Court has held, “[A] trial court may still vacate a default on
equitable grounds even if statutory relief is unavailable. [Citation.]” (Rappleyea v.
Campbell (1994) 8 Cal.4th 975, 981; see Manson, Iver & York v. Black (2009) 176
Cal.App.4th 36, 42 [“After the time for requesting statutory relief under section 473 has
passed, the court may set aside the default and judgment on equitable grounds.”].) Our
Supreme Court has explained: “One ground for equitable relief is extrinsic mistake -- a
term broadly applied when circumstances extrinsic to the litigation have unfairly cost a
party a hearing on the merits. [Citations.] ‘Extrinsic mistake is found when [among
other things] . . . a mistake led a court to do what it never intended . . . .’ [Citations.]”
(Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981; see Burnete v. La Casa Dana

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Apartments (2007) 148 Cal.App.4th 1262, 1269.) We review a trial court’s order
denying a motion to vacate on equitable grounds for abuse of discretion. (Rappleyea v.
Campbell, supra, 8 Cal.4th at p. 981; In re Marriage of Park (1980) 27 Cal.3d 337, 347.)
Our Supreme Court has ruled equitable relief from a judgment is available in the
case of extrinsic mistake when three elements are present: “First, the defaulted party
must demonstrate that it has a meritorious case. Second[], party seeking to set aside the
default must articulate a satisfactory excuse for not presenting a defense to the original
action. Last[], the moving party must demonstrate diligence in seeking to set aside the
default once . . . discovered.’ [Citation.]” (Rappleyea v. Campbell, supra, 8 Cal.4th at p.
982; see Lee v. An (2008) 168 Cal.App.4th 558, 566.)
For purposes of this appeal, the parties do not dispute plaintiffs have a meritorious
petition. Regarding the second element, plaintiffs contend they have a satisfactory
excuse for not defending against Judge Beckloff’s dismissal of their petition. Based on
the record, plaintiffs’ counsel through his paralegal, Ms. Schourup, contacted the probate
court clerk on December 12, 2011. Ms. Schourup advised the court clerk that the
plaintiffs wanted to take the default prove-up hearing off-calendar pending mediation.
The court clerk agreed to remove the matter from Judge Beckloff’s calendar of cases to
be decided on December 15, 2011. Nonetheless, on December 15, 2011, Judge Beckloff
conducted a hearing concerning both the default prove-up and section 17200 petition.
Judge Beckloff issued rulings on both matters. As a matter of law, the second element
was satisfied. Under California Rules of Court, rule 3.1304(b), “The moving party must
immediately notify the court if a matter will not be heard on the scheduled date.”
Plaintiffs complied with this requirement. It would be presumed that when the court
clerk assures a matter will be taken off-calendar, that it was done. (See Hu v. Silgan
Containers Corp. (1999) 70 Cal.App.4th 1261, 1267 [“The clerk speaks for the court.”];
Mirvis v. Crowder (1995) 32 Cal.App.4th 1684, 1687.)
Regarding the third element, plaintiffs contend they acted with diligence once they
discovered the dismissal of the section 17200 petition. As noted, there was no evidence
presented that the trial court issued any notice regarding its December 15, 2011 orders.

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(See Code Civ. Proc., § 1019.5, subd. (b); Cal. Rules of Court, rule 3.1109(a).)
Plaintiffs’ counsel declared he did not discover the trial court’s December 15, 2011
orders until October 29, 2012. Plaintiffs filed their Code of Civil Procedure section 473
motion on January 15, 2013, approximately 10 weeks later. Plaintiffs’ conduct between
December 15, 2011, to October 2012 indicated an intent to mediate the matter. And
Mr. Osborn had no knowledge of the dismissal of plaintiffs’ section 17200 petition.
There was also no prejudice demonstrated against defendant. (Weitz v. Yankosky (1966)
63 Cal.2d 849, 857 [diligence found when no prejudice resulted from delay]; Palmer v.
Moore (1968) 266 Cal.App.2d 134, 141.) Here, defendant made no allegation of
prejudice. We find none.
Based on the submitted evidence, plaintiffs qualified for equitable relief on
extrinsic mistake grounds. Plaintiffs have a meritorious case, a satisfactory excuse for
not defending against the dismissal of their default prove-up and petition, and acted with
reasonable diligence. The motion to vacate the December 15, 2011 orders should have
been granted. Because we find equitable relief should be granted because of an extrinsic
mistake, we decline to consider the parties’ other arguments.

[The balance of the opinion is to be published.]

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 IV. DISPOSITION

The orders denying the motion to vacate are reversed. Upon remittitur issuance,
the December 15, 2011 orders are to be set aside. Plaintiffs, Georgette Kalenian, Ida
Reza, Elizabeth Van Item and Alex Tony Insen, are awarded their appeal costs from
defendant, George Elias Insen.
CERTIFIED FOR PARTIAL PUBLICATION

TURNER, P. J.

We concur:

KRIEGLER, J.

MINK, J.


Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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