Liebovich v. Tobin CA2/2

Filed 8/26/21 Liebovich v. Tobin CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

B306184
MATTHEW LIEBOVICH et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. Nos. BP138119,
17STPB10559)
v.

DIANE TOBIN et al., as
Trustees, etc.,

Defendants and
Respondents.

APPEAL from an order of the Superior Court of Los
Angeles County. Barbara R. Johnson, Judge. Affirmed.

Keiter Appellate Law and Mitchell Keiter for Plaintiffs and
Appellants.
 Sacks, Glazier, Franklin & Lodise, Robert N. Sacks,
Matthew W. McMurtrey, and John A. Scheerer for Defendants
and Respondents.
******
This is the second appeal in this probate matter. In the
first appeal, we concluded that the probate court had erred in
categorically denying a motion to vacate a void, prior court order,
but remanded the matter so the probate court could exercise its
discretion in deciding whether to vacate the void order under
Code of Civil Procedure section 473, subdivision (d).1 The probate
court exercised its discretion not to vacate the order. In this
second appeal, the parties seeking to vacate the order argue that
(1) the probate court really did not have any discretion to deny
their motion to vacate, and (2) even if it did, the court abused its
discretion. The first argument is barred by the law of the case
doctrine, and the second is without merit. Accordingly, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The family
Theodore and Shirley Liebovich had four children—Diane
Janice Tobin, Lori Gayle Robin, Stuart Jerome Liebovich, and

1 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.

2 Most of these facts are drawn from our unpublished opinion
in the first appeal. (Liebovich v. Tobin (Sept. 5, 2019, B292177)
(Liebovich I).)

2
Bruce Allen Liebovich.3
B. The distribution of Theodore and Shirley’s
estate
This long-running matter deals with distribution of
Theodore and Shirley’s estate, after Theodore died in 2014 and
Shirley died in 2017.
1. The original trust
In 1984, Theodore and Shirley executed the Liebovich 1984
Trust (the Trust).
2. The sixth amendment and Shirley’s power of
attorney
In July 2006, and after jointly executing five amendments
to the Trust, (1) Theodore and Shirley executed the Sixth
Amendment to and Complete Restatement of Trust (the sixth
amendment), and (2) Shirley executed a “Durable Power of
Attorney (Limited)” (power of attorney). The sixth amendment
provided that the spouses can “alter, modify, or amend the trust”
during their lifetimes only if they act “jointly,” but did not define
“jointly” to authorize one spouse to sign for both using a power of
attorney. In the power of attorney, Shirley expressly granted
Theodore several specific powers, but did not expressly grant him
the power to amend the beneficiaries of the Trust or the power to
waive notice for her. In terms of the Trust’s beneficiaries, the
sixth amendment specified that, after Theodore and Shirley died
and various charities received bequests, the remainder would be
split “[e]qually” among the four children (or, if a child died first,
the grandchildren of that deceased child).

3 Because many of the persons involved in this case share the
same last name, we will use first names for clarity. We mean no
disrespect.

3
 3. The seventh through tenth amendments
Between 2007 and 2011, the Trust was amended four more
times (via the seventh, eighth, ninth and tenth amendments).
Each time, Theodore signed for himself and purported to sign for
Shirley using the power of attorney. Collectively, these four
amendments (1) reduced Stuart’s share to a $500 monthly
stipend, and more “if needed for [his] proper support, health,
maintenance and education,” (2) acknowledged Bruce’s death and
left Bruce’s four children nothing, and (3) thus left Diane and
Lori to “equally” split the remainder of the Trust’s corpus after
the charity bequests and Stuart’s stipend.
4. Theodore’s petition to retroactively modify the
sixth amendment and power of attorney, and the court’s order
granting petition
In December 2012, Theodore filed a petition to (1) amend
the sixth amendment to clarify that the Trust may be modified by
one spouse’s use of a power of attorney for the other spouse, (2)
amend the power of attorney to expressly grant Theodore the
power to amend the Trust on Shirley’s behalf, and (3) declare the
two requested amendments retroactively effectively, thereby
reaffirming the validity of the previously executed seventh
through tenth amendments (the 2012 petition). In support of the
petition, Theodore submitted a declaration from the lawyer who
prepared the sixth amendment and power of attorney. In the
declaration, the attorney stated that Shirley’s “unequivocal
desire” when executing the sixth amendment and power of
attorney was to “empower[]” Theodore “to amend the Trust as her
attorney-in-fact” using the power of attorney, and that the
omission of language from those documents expressly authorizing
such use of the power of attorney was a “scrivener’s error.”

4
 Theodore did not serve Bruce’s children with a copy of the
2012 petition, and filed a “waiver of notice” on Shirley’s behalf
using the power of attorney.
The probate court granted the petition in April 2013 (the
2013 Order).
5. The eleventh through fourteenth amendments
Between 2012 and 2013, Theodore invoked the power of
attorney to execute four more amendments to the Trust
(designated as the eleventh through fourteenth amendments).
The fourteenth amendment provided that each of Bruce’s
children would receive $25,000 if they did not contest the Trust.
6. Theodore’s death and exchange of documents
After Theodore passed away in January 2014, counsel for
the trustees of the Trust (Diane, Lori, and a third individual) sent
notification of Theodore’s death to Bruce’s adult children and to
Bruce’s youngest child (named Joshua) at his legal guardian’s
house. The notice advised Bruce’s children that they are heirs or
beneficiaries to the Trust and invited them to ask “any questions
regarding the Trust or its distribution.” In response to an inquiry
from an attorney representing Bruce’s adult children, the
attorney sent those children in March 2014 copies of the
thirteenth and fourteenth amendments, which expressly refer to
the 2013 Order as well as the docket number from that case.
None of Bruce’s children took any action regarding the 2013
Order at that time.
7. Shirley’s death
After Shirley passed away in April 2017, the trustees sent
each of Bruce’s children notice of her death, a proposed release
agreeing not to contest the Trust, and an additional $5,000 check
to hire “skilled legal counsel to advise him or her” whether to sign

5
the release. The children cashed the checks, but signed no
releases.
II. Procedural Background
A. Through the first appeal
In March 2018, Bruce’s four children (plaintiffs) filed a
motion to vacate the 2013 Order as void on the grounds that (1)
they were not given proper notice, and (2) Shirley was not given
proper notice.
The probate court denied the motion, finding that (1)
plaintiffs were not entitled to notice because the Trust was still
revocable at the time of Theodore’s petition and (2) any deficiency
in notice to Shirley was irrelevant because “Shirley isn’t the
party” bringing the motion to vacate.
Plaintiffs appealed. In a September 2019 opinion, we
agreed with the probate court that plaintiffs were not entitled to
notice, but concluded that the 2013 Order was void on its face due
to lack of notice to Shirley and that plaintiffs had standing to
challenge the 2013 Order because it affected their rights or
interests. Because plaintiffs were seeking relief under section
473, subdivision (d), which provides for discretionary relief, we
remanded the matter back to the probate court to exercise that
discretion and directed the court to “consider, among other
relevant factors, (1) whether Shirley’s participation in the
proceedings regarding the petition to reform the sixth
amendment and power of attorney would have led to a different
result,” and (2) “whether plaintiffs [had been] diligent in bringing
their motion to [vacate].”
Plaintiffs did not petition for rehearing with this court or
petition for review with the California Supreme Court.

6
 B. Through this appeal
Immediately after the case was remanded to the probate
court, the court issued an order asking for briefing on whether to
exercise its discretion. After receiving briefing from the parties
and holding a hearing, the probate court issued a four-page order
declining to exercise its discretion to vacate the void 2013 Order.
At the outset, the court rejected plaintiffs’ argument that it was
required to vacate the 2013 Order, reasoning that this court
would not have remanded the matter for the probate court to
exercise its discretion if it could exercise it in only one way. The
probate court then turned to the factors identified by this court,
and concluded that “Shirley’s participation in [Theodore’s 2012]
petition [to effectively ratify the sixth amendment and power of
attorney and to retroactively validate the seventh through tenth
amendments] would not have led to a different result” because (1)
Shirley’s lawyer had declared that Shirley met with him
separately and disclosed her intent that Theodore have the power
to amend the Trust’s beneficiaries using the power of attorney,
(2) Shirley’s intention to allow Theodore to act as her proxy was
corroborated by their marriage of “at least 20 years by the time”
the sixth amendment and power of attorney “were executed,” (3)
all of Shirley’s grandchildren were biological grandchildren, and
(4) Shirley had “disinherited” Stuart’s children as well as
plaintiffs. The court also concluded that plaintiffs had
“unreasonably delay[ed] . . . challenging the” 2013 Order because
they had “receive[d] notice” of the 2013 Order in early 2014 but
nevertheless waited until 2018—and, critically, waited until after
Shirley’s death—to challenge the 2013 Order, thereby
“depriv[ing]” the trustees “of the readiest means of proving
Shirley’s intent” and thereby prejudicing them. As a result, the

7
court “exercise[d] its discretion to not overturn the 2013 . . .
Order.”
Plaintiffs filed this timely appeal.
DISCUSSION
Plaintiffs argue that the probate court erred in not vacating
the 2013 Order because (1) the court was obligated to vacate the
order, and (2) even if the court had some discretion not to vacate
the order, it abused that discretion in this case. We examine
each issue separately.
I. Was the probate court obligated to vacate the 2013
Order under section 473, subdivision (d)?
Plaintiffs argue that (1) notwithstanding the statutory
language in subdivision (d) of section 473 that a court “may . . .
set aside any void judgment or order” (§ 473, subd. (d), italics
added), a court must vacate a void order; (2) even if a trial court
has some discretion to decline to vacate a void order, the
discretion a court possesses in deciding whether to grant relief
from a prior order exists along a spectrum from “broad” to
“almost none,” and its discretion when the order is void is “almost
none”; and (3) even if a trial court possesses more than a little
discretion to decline to vacate a void order, the first factor this
Court identified in its first appellate decision (whether Shirley’s
involvement would have led to a different result in the
proceedings resulting in the 2013 Order) is not a proper
consideration when exercising such discretion. All of these
arguments are variations on the same theme—namely, that this
court erred in concluding that the probate court had discretion to
decline to vacate a judgment and in specifying factors relevant to
exercising that discretion.

8
 Because plaintiffs are challenging our rulings in the prior
appeal, whether we may entertain plaintiffs’ challenges in this
appeal turns on how the law of the case doctrine applies. This is
a question of law we review de novo. (Haworth v. Superior Court
(2010) 50 Cal.4th 372, 384.)
A. Law of the case doctrine
Under the law of the case doctrine, a prior appellate
decision is deemed conclusive in all subsequent trial and
appellate proceedings between the same parties in the same case
as to any “rule of law necessary to th[at] decision.” (Morohoshi v.
Pacific Home (2004) 34 Cal.4th 482, 491 (Morohoshi); Leider v.
Lewis (2017) 2 Cal.5th 1121, 1127 (Leider).) Here, we necessarily
decided in our prior appellate decision in this matter that the
probate court had discretion pursuant to section 473, subdivision
(d) to decide whether or not to vacate the void 2013 Order and
necessarily decided two of the factors relevant to the exercise of
that discretion. Because we are now in subsequent appellate
proceedings involving the same parties in the same case, our
prior rulings on whether the court has discretion and the factors
relevant to its exercise have been conclusively established and
cannot now be relitigated.
B. Limitations on law of the case doctrine
The law of the case doctrine has two inherent limitations of
which plaintiffs seek to avail themselves. First, the law of case
doctrine “does not apply to arguments” not expressly or implicitly
presented and decided in the prior appeal. (Leider, supra, 2
Cal.5th at p. 1130.) Second, the law of the case doctrine may be
ignored “where its application would result in an unjust
decision,” which exists when (a) the prior appellate decision
rested on a “manifest misapplication of existing [law] resulting in

9
substantial injustice,” or (b) “the controlling rules of law have
been altered or clarified” at some point after the prior appellate
decision. (Morohoshi, supra, 34 Cal.4th at pp. 491-492; People v.
Stanley (1995) 10 Cal.4th 764, 787.)
Neither limitation applies here.
Because our prior appellate decision expressly decided that
trial courts have discretion to deny relief under subdivision (d) of
section 473 and expressly set forth two factors relevant to the
exercise of that discretion, the first limitation is inapplicable and
thus the sole remaining question is whether adhering to our prior
appellate decision would result in an “unjust decision.” It would
not.
1. Manifest misapplication of existing law?
Our prior decision did not rest on a “manifest
misapplication of” existing law. As we noted in our prior opinion,
the plain text of section 473, subdivision (d) provides that “[t]he
court may . . . set aside any void judgment or order” (§ 473, subd.
(d), italics added)—not that it must. In statutes like section 473
that in some parts use “shall” to connote mandatory obligations
(id., subd. (b)), their simultaneous use of “may” in other parts
usually connotes a discretionary decision. (Tarrant Bell Property,
LLC v. Superior Court (2011) 51 Cal.4th 538, 542.) Not
surprisingly, several courts have read this language in
subdivision (d) of section 473 as “mak[ing] it clear that a trial
court retains discretion to grant or deny a motion to set aside a
void judgment.” (Talley v. Valuation Counselors Group, Inc.
(2010) 191 Cal.App.4th 132, 146; Cruz v. Fagor America, Inc.
(2007) 146 Cal.App.4th 488, 495; Nixon Peabody LLP v. Superior
Court (2014) 230 Cal.App.4th 818, 822 (Nixon).)

10
 Plaintiffs offer what boil down to three reasons why our
reading of section 473, subdivision (d) constituted a “manifest
misapplication of existing law.”4
First, plaintiffs argue that section 473, subdivision (d)’s
language purporting to grant courts discretion does not mean
what it says, and that trial courts must set aside void judgments
and orders in all cases. For support, they note that (1) no
published case has upheld a trial court’s decision not to vacate a
void judgment or order, (2) a judicial benchbook for California
judges says that courts should usually vacate void judgments and
orders, (3) their position is supported by Varian Medical Systems,
Inc v. Delfino (2005) 35 Cal.4th 180 (Varian); Calvert v. Al Binali
(2018) 29 Cal.App.5th 954 (Calvert); and OC Interior Services,
LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318 (OC
Interior). Plaintiffs are wrong. The absence of a published case
applying the plain text of a statute does not mean the text means

4 Plaintiffs make two other arguments, but neither warrants
much discussion. They argue that the trustees claim Shirley
suffered from dementia in 2013; she therefore could not have
modified the trust in 2012; and plaintiffs themselves (rather than
Shirley) were therefore entitled to notice of the 2012 proceedings.
However, we already held the 2013 Order was void and that
plaintiffs had standing to so argue. The reason why the 2013
Order was void does not affect the court’s discretion under section
473, subdivision (d). Plaintiffs further argue that all of the
evidence the probate court considered in the 2012 proceeding was
inadmissible hearsay and thus could not support the 2013 Order.
Aside from being waived for being raised for the first time in the
reply brief of the second appeal, this argument would at best
render the 2013 Order voidable, which would mean the trial
court was compelled to deny any relief as untimely. (§ 473, subd.
(b).)

11
something different. A benchbook has zero precedential value.
And none of the cases plaintiffs cite has anything to do with the
discretion available to a court under section 473, subdivision (d).
(Varian, at p. 200 [noting that a reviewing court’s “‘jurisdiction is
limited’” to reversing a void judgment, but not discussing section
473, subdivision (d)]; Calvert, at p. 961 [noting that void
judgments are a “‘“nullity,”’” but not discussing section 473,
subdivision (d)]; OC Interior, at pp. 1330-1331 [same].) Because
these cases do not deal with section 473, subdivision (d), the
soundbites plaintiffs lift from them cannot be inconsistent with
our prior opinion interpreting that statutory provision. (E.g.,
California Building Industry Assn. v. State Water Resources
Control Bd. (2018) 4 Cal.5th 1032, 1043 [“cases are not authority
for propositions that are not considered”].)
Second, plaintiffs argue that the probate court
“misperceived its discretion” by thinking that it had any.
Plaintiffs make a three-step argument: (1) Osseous Technologies
of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191
Cal.App.4th 357, 364-365 (Osseous) holds that statutes that
purport to confer discretion upon a court may actually require
that the court’s discretion, in certain situations, be exercised in a
particular way; (2) the degree of discretion a trial court has to
vacate a judgment or order varies, depending on (a) whether what
is to be vacated is an order or a judgment (e.g., Rappleyea v.
Campbell (1994) 8 Cal.4th 975, 981-982 (Rappleyea)), (b) whether
the judgment or order is void or voidable (compare § 473, subd.
(d) with id., subd. (b)), and (c) whether the equitable relief sought
is based on section 473 or the court’s inherent authority (e.g.,
Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 901, fn.

12
8);5 and (3) the discretion a trial court has to decline to vacate a
void order or judgment is—along this spectrum of discretion trial
courts possess to vacate judgments and orders—almost nil.
Plaintiffs further argue that the probate court was wrong to read
our prior appellate decision as requiring it to exercise its
discretion because, in their view, our remand was merely a
gesture of “procedural comity” intended to let the probate court be
the court that granted relief rather than us.
Plaintiffs are wrong again. Even if we ignore that Osseous
is inapt because it is a case interpreting discretion under the
declaratory relief statute, the second and third steps of plaintiffs’
argument—namely, that (1) there are several different levels of
discretion that trial courts possess in deciding whether to vacate
a judgment or order that fit inside one another like Russian
nesting dolls, and (2) the discretion to decline to vacate a void
order under section 473, subdivision (d) is the tiniest doll in the
center—are incorrect. The cases plaintiffs cite discussing the
discretion available to a trial court in a specific context do not
purport to compare and contrast that discretion with the breadth
of discretion available in other contexts. More to the point, none
of them discuss the breadth of discretion available under section

5 Plaintiffs also note that the degree of “scrutiny” that an
appellate court applies to a trial court’s exercise of discretion
varies, depending on whether the trial court granted or denied
relief (Rappleyea, at p. 980, quoting Elston v. City of Turlock
(1985) 38 Cal.2d 227, 233, superseded by statute on other
grounds as stated in Tackett v. City of Huntington Beach (1994)
22 Cal.App.4th 60, 64), but this maxim addressing the scope of
appellate review seems irrelevant to plaintiffs’ argument about
the amount of discretion possessed by a trial court in the first
instance.

13
473, subdivision (d).6 Thus, the probate court properly read our
prior decision as asking it to exercise its discretion, as we are not
in the business of ordering the trial courts to engage in time-
wasting idle acts.
Third, plaintiffs argue that existing law does not authorize
a trial court, when exercising its discretion to vacate a void order
or judgment under section 473, subdivision (d), to consider
whether vacating the order and starting over would lead to a
different result. For support, plaintiffs cite Peralta v. Heights
Medical Center, Inc. (1988) 485 U.S. 80, 86-87 [when person is
“deprived of property in a manner contrary to the most basic
tenets of due process,” fact that result might be the same after a
hearing irrelevant]); Cadenasso v. Bank of Italy (1932) 214 Cal.
562, 565-569, superseded by § 170.1 [when litigant’s case is
dismissed by disqualified judge, fact that case will likely be
dismissed before qualified judge does not obviate entitlement to
relief]; Sindler v. Brenna (2003) 105 Cal.App.4th 1350, 1353-1354
(Sindler) [when trial court dismisses case while it lacks
jurisdiction due to pending federal bankruptcy, “prejudice is not a
factor”]; Calvert, supra, 29 Cal.App.5th at p. 964 [no showing of
different result necessary when judgment is void]; and Fidelity
Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 204-
206 [litigant entitled to vacate order renewing judgment under

6 Plaintiffs’ citation to People v. North River Insurance Co.
(2020) 48 Cal.App.5th 226 (North River), is even more far afield.
There, we held that a trial court would abuse its discretion in
vacating summary judgment when vacating the judgment would
lead to an absurd result, and hence would constitute an abuse of
discretion. (Id. at pp. 238-239.) Cited for this proposition, North
River is a tautology that is of no use in defining the breadth of
discretion available under section 473, subdivision (d).

14
Enforcement of Judgments Law “without establishing a
meritorious defense” to renewal]. However, none of these cases
purports to address whether the existence of a meritorious
defense may be considered when a trial court is exercising its
discretion under section 473, subdivision (d); indeed, the only
case to cite that statutory provision is Sindler, and Sindler did
not address—let alone rule on—the discretionary language in
that provision. In our prior opinion, we suggested the likely
usefulness of starting over as a relevant factor because it is
generally relevant to discretionary, equitable calls a trial court
must make; even if the relevance of this factor is open to debate,
no case cited by plaintiffs—and no case we have found on our
own—purports to hold that our decision allowing for the
consideration of that factor under section 473, subdivision (d) is
contrary to—and hence a “manifest misapplication” of—existing
law.
2. Alteration or clarification of the controlling
rules of law?
The controlling rules of law we applied in our prior
appellate decision have not changed. Plaintiffs contend
otherwise, citing Sass v. Cohen (2020) 10 Cal.5th 861 (Sass),
Barefoot v. Jennings (2020) 8 Cal.5th 822 (Barefoot), and Roth v.
Jelley (2020) 45 Cal.App.5th 655 (Roth). But none of those cases
altered or clarified the law we applied. Sass reaffirmed
preexisting case law holding that the discretion a trial court
possesses to decline to vacate a void judgment under section 473,
subdivision (d) is overridden when the void judgment is a default
judgment that is void under section 580 for being in an amount in
excess of the amount properly pled by the plaintiff. (Sass, at pp.
873-874; Airs Aromatics, LLC v. CBL Data Recovery

15
Technologies, Inc. (2018) 23 Cal.App.5th 1013, 1023 [“It would be
anomalous for a court to lack fundamental jurisdiction to enter a
particular default judgment under section 580 but nevertheless
retain discretion under section 473, subdivision (d) to not set that
judgment aside.”].) The rule adopted in Sass and its predecessor
cases has no application where, as here, the order is not a void
default judgment in excess of the amount pled, and thus where
section 580’s competing policy of mandatory invalidity overrides
the discretion otherwise conferred by section 473, subdivision (d).
Barefoot and Roth do not undermine our application of section
473, subdivision (d) because they do not cite that provision at all.
II. Did the Probate Court Abuse Its Discretion in
Declining to Vacate the Void 2013 Order?
Plaintiffs alternatively argue that the probate court abused
its discretion in denying their motion to vacate the void 2013
Order. Contrary to what plaintiffs urge, we review a trial court’s
denial of a motion to set aside a void order for an abuse of
discretion. (Nixon, supra, 230 Cal.App.4th at p. 822; cf. Calvert,
supra, 29 Cal.App.5th at p. 961 [reviewing precursor question of
whether a judgment is void de novo]; Pattera v. Hansen (2021) 64
Cal.App.5th 507, 526 [same]; Roth, supra, 45 Cal.App.5th at p.
666 [reviewing precursor question of whether a judgment is void
for violating due process de novo].) Under the abuse of discretion
standard, we start by reviewing any subsidiary legal questions de
novo and any subsidiary factual questions for substantial
evidence. (Shoen v. Zacarias (2019) 33 Cal.App.5th 1112, 1118-
1119.) And if we conclude that the trial court applied the correct
law to factual findings supported by substantial evidence, we
then ask whether the court’s ruling is “irrational” and
“arbitrary,” or instead is within the “bounds of reason.” (People v.

16
Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony); Shamblin v.
Brattain (1988) 44 Cal.3d 474, 478; Uriarte v. United States Pipe
& Foundry Co. (1996) 51 Cal.App.4th 780, 790 (Uriarte).) In so
doing, we may not substitute our decision for the trial court’s (In
re Marriage of Varner (1997) 55 Cal.App.4th 128, 138, superseded
on other grounds by § 473; Uriarte, at p. 790), and must defer to
the trial court’s choice of one reasonable inference over another
(Uriarte, at p. 790). The appealing parties—here, plaintiffs—
have the burden of showing that the trial court abused its
discretion. (Carmony, at p. 376.) This is a “daunting task.”
(Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448 (Gilkison).)
However, if in the end we have “‘any doubts’” as to whether
plaintiffs have carried their burden, we must resolve those
doubts in favor of vacating the void order or judgment.
(Rappleyea, supra, 8 Cal.4th at p. 980.)
We have no doubt that the probate court acted well within
its discretion in declining to vacate the void 2013 Order. The
court considered the two factors we suggested as relevant to the
exercise of discretion under section 473, subdivision (d)—namely,
(1) “whether Shirley’s participation in the 2012 proceedings
regarding the petition to reform the sixth amendment and power
of attorney would have led to a different result,” and (2) “whether
plaintiffs [had been] diligent in bringing their motion to [vacate].”
With regard to the first factor, the question was whether
plaintiffs could articulate a “sufficiently meritorious” basis for
concluding that the probate court would not accept Shirley’s
lawyer’s claim of a scrivener’s error if the 2012 petition were
relitigated now. (In re Marriage of Park (1980) 27 Cal.3d 337,
346 [“sufficiently meritorious claim” required, but not proof “with
certainty that a different result would obtain”]; Olivera v. Grace

17
(1942) 19 Cal.2d 570, 578-579 [same]; Mechling v. Asbestos
Defendants (2018) 29 Cal.App.5th 1241, 1246-1247 [same].) In
evaluating this factor, the court weighed the sworn testimony of
Shirley’s lawyer attesting to Shirley’s actual intent and the
evidence of Shirley and Theodore’s longstanding marriage
against the inference proffered by plaintiffs that Shirley must not
have intended to allow Theodore to alter the Trust on her behalf
because Theodore’s decision to file the 2012 petition rather than
have Shirley re-execute amended versions of the sixth
amendment and power of attorney meant that Shirley’s position
must have been unfavorable to his. As between firsthand
evidence (on the one hand) and a proffered inference that is at
most reasonable and at best speculative (on the other hand), the
probate court did not abuse its discretion in giving greater weight
to the firsthand evidence. We cannot gainsay a trial court’s
selection of one inference over another. (Uriarte, supra, 51
Cal.App.4th at p. 790.) Plaintiffs also suggest that Shirley had
no reason to disinherit them, but that does not speak to Shirley’s
intent to authorize Theodore to act on her behalf—and hence is
irrelevant to the question before the probate court.
With regard to the second factor, the question was whether
plaintiffs acted with reasonable diligence in filing their March
2018 petition to vacate the 2013 Order. When evaluating
whether a party acted with diligence, the focus is on what the
party “knew or should have known.” (Drake v. Pinkham (2013)
217 Cal.App.4th 400, 407, 409, italics omitted.) This includes
what the party’s attorney knew (Janetsky v. Avis (1986) 176
Cal.App.3d 799, 811) and, if the party is a minor, what the
party’s guardian knew (see § 416.60; Dill v. Berquist Construction
Co. (1994) 24 Cal.App.4th 1426, 1436, fn. 7.) Here, the trustees

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in January 2014 sent all three adult plaintiffs and the legal
guardian of the sole minor plaintiff the statutorily required notice
of Theodore’s death, which advised them of their right to receive
a “true and complete copy of the terms of the trust” (Prob. Code, §
16061.7, subd. (g)(5)); the trustees in February 2014, in response
to their request, sent the three eldest plaintiffs copies of the
thirteenth and fourteenth amendments that explicitly referred to
the 2013 Order. Yet none of the plaintiffs challenged the 2013
Order until 2018, after Shirley’s death and, hence, after Shirley
could reaffirm the intentions she had in 2006 regarding the sixth
amendment and the power of attorney. On these facts, the
probate court did not abuse its discretion in concluding that
plaintiffs were not reasonably diligent and that their lassitude
prejudiced the trustees.
Plaintiffs level what boil down to five arguments in
response.
First, plaintiffs contend that the probate court got several
facts wrong at the hearing and in its order. What the court said
at the hearing is irrelevant given that what we review is its
written order. (Jespersen v. Zubiate-Beauchamp (2003) 114
Cal.App.4th 624, 633 [“a judge’s comments in oral argument may
never be used to impeach the final order”].) And none of the
misstatements in the written order—that Shirley died in 2013
(rather than the true date in 2017) and that Shirley had
disinherited grandchildren other than plaintiffs (which she did,
but in trust amendments signed by Theodore on her behalf)—is
material the analysis set forth above, and hence do not call into
question the court’s ruling. (Gilkison, supra, 65 Cal.App.4th at
pp. 1448-1449 [a trial court abuses its discretion only if it
misperceives the “material facts in evidence”].)

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 Second, plaintiffs assert that the probate court applied the
wrong legal standard in evaluating reasonable diligence.
According to plaintiffs, reasonable diligence turns on what they
actually knew, rather than what they knew or should have
known. What is more, plaintiffs assert what they had to actually
know is not that there was a 2013 Order but that it had the effect
of disinheriting them when examined in conjunction with prior
amendments to the Trust. For support, plaintiffs cite County of
San Diego v. Gorham (2010) 186 Cal.App.4th 1215 (Gorham).
However, Gorham merely notes that actual knowledge cannot
cure the voidness of an order due to defective service (id. at p.
1229); Gorham does not purport to define reasonable diligence,
which is what is at issue here. More to the point, reasonable
diligence places an onus upon a party to take the investigatory
steps that a reasonable person would take; it does not require a
detailed and explicit notification of all pertinent facts.
Third, plaintiffs posit that Joshua did not receive anything
that would have put him on notice of the need to inquire into his
inheritance. The record does not support this position. As noted
above, Joshua’s guardian was notified of Theodore’s death and,
like his siblings, he had the right to request a copy of the trust
amendments that would have alerted him to the 2013 Order.
The failure to Joshua’s guardian to act with reasonable diligence
does not undermine the probate court’s order here.
Fourth, plaintiffs analogize and distinguish a variety of
cases. None of these cases is directly on point, so they do not call
into question the probate court’s analysis.
Lastly, plaintiffs insinuated in their reply brief on appeal
and more explicitly for the first time at oral argument argued
that Shirley’s potential incompetence in 2012 renders the denial

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of relief an abuse of discretion. We reject this assertion because
it does not relate to any factor relevant to the exercise of that
discretion. Shirley’s incompetence does not tend to support a
finding that the result of the 2012 proceeding would have been
any different; nor could it, because if Shirley were incapable of
giving testimony in 2012, the trial court would have been faced
with the same evidence it was actually faced with and would
have come to the same result. Shirley’s incompetence in 2012
also does not have any bearing on whether plaintiffs were
reasonably diligent between 2014 and 2017. At most, Shirley’s
incompetence in 2012 is relevant to whether she was entitled to
notice in 2012 which, as we have discussed earlier, has no effect
on the applicability of section 473, subdivision (d).
DISPOSITION
The order is affirmed. The trustees are entitled to their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
CHAVEZ

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