Filed 2/6/20 Thomas v. Blevins CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

JOZLYN THOMAS,

Plaintiff and Appellant,

v.

JAMES SCOTT BLEVINS, as Trustee, etc.,

Defendant and Respondent.

F078333

(Super. Ct. No. 428536)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Stacy P. Speiller, Judge.

Jozlyn Thomas, in propria persona, for Plaintiff and Appellant.

Gianelli/Nielsen, Eric Thomas Nielsen and Michael Louis Gianelli for Defendant and Respondent.

-ooOoo-

Appellant, Jozlyn Thomas, a beneficiary of the Giles Revocable Trust (or the trust), appeals from the trial court’s denial of her motion to vacate an order issued nine years earlier concerning the administration of the trust (the 2009 order). The 2009 order had granted an amended petition by the trustee, respondent James Scott Blevins (respondent or trustee), seeking court approval of his account and report, plan of distribution, and settlement agreement with another beneficiary, Dawn Morin. By 2011, presumably in reliance on the 2009 order, all the assets of the trust were distributed to the various beneficiaries, including appellant, and the trust administration was completed. In her motion to vacate, appellant claimed the 2009 order should be set aside as void, and the trust administration and/or distribution “reopened,” because there was a lack of proper service of process on her relating to the subject petition; that is, the trustee mailed the relevant pleadings and notices to an incorrect address. The trial court denied appellant’s motion on the primary ground that appellant’s “attack on the Court’s May 2009 Order comes far too late.” In her appeal, appellant contends the trial court erred because the 2009 order had to be set aside as void regardless of when the invalidity was brought to the trial court’s attention. We disagree. Under the unique circumstances of this case, and for reasons explained below, we conclude the trial court did not abuse its discretion in declining to vacate the 2009 order. Accordingly, the order of the trial court denying appellant’s motion to vacate is hereby affirmed.

FACTS AND PROCEDURAL HISTORY

Background Regarding Giles Revocable Trust

For purposes of the present appeal, neither party disputes the basic accuracy of the background facts set forth in the trial court’s order denying appellant’s motion to vacate. The following is a reiteration of the trial court’s description and history of the Giles Revocable Trust and of the relevant court proceedings relating thereto which resulted in the 2009 order.

The settlors/trustors of the Giles Revocable Trust were Charles L. Giles and Bobette Giles, husband and wife. The trust was established in January 2002. At the time, Charles had two sons from a former marriage—Charles W. Giles (deceased) and Joseph Giles (appellant’s father). Bobette had five children from a former marriage—James Scott Blevins, William Blevins, Brent Blevins, Bryan Blevins, and Kelly Bergman. Charles and Bobette were the initial trustees of the Giles Revocable Trust—it was created as a revocable living trust. Bobette’s son James was designated as the successor trustee—i.e., the person who would take over administration of the trust upon the death of both Charles and Bobette.

In the Giles Revocable Trust, Charles specifically provided for some of his grandchildren. This included his grandchildren through his deceased son Charles W. (i.e., Charles W. Giles, Jr., Anthony Giles, and Michael Giles), and his grandchild through his son Joseph—i.e., Joseph’s daughter, appellant herein. Charles left his son Joseph a small bequest ($50,000 in trust) that was dependent on Joseph refraining from use of illicit drugs.

Charles also treated Dawn Morin as his own daughter, though she was never adopted by him, according to the pleadings. As will be noted below, Dawn Morin was one of the beneficiaries of the trust.

The trust assets were supposed to be placed into three different sub-trusts upon the death of the first spouse. First, a marital share trust was supposed to be created and funded to the extent of the federal marital estate tax exemption amount to reduce and/or eliminate taxes at the time of the surviving spouse’s death. Second, a family share trust was to be created, which would hold the community property share of the deceased spouse as well as the balance of that spouse’s separate property, if any. Third, a surviving spouse trust was supposed to be created to hold the surviving spouse’s share of the community property as well as that spouse’s separate property, if any. The surviving spouse was to maintain control over all the assets in the surviving spouse trust and upon death, those assets were to be equally divided among the surviving spouse’s beneficiaries.

Depending on who died first, the applicable distribution provisions in the trust were slightly different. However, since Charles died first, this is what was supposed to happen: First, immediately upon his death, Stoney Dahlberg was to receive $1,000, Dawn Morin was to receive $25,000, and “each living grandchild” was to receive $25,000, including appellant.

Then, upon Bobette’s death, Charles’s beneficiaries (who inherit the balance of the marital share and family share sub-trusts) were to receive as follows: $50,000 to Joseph Giles (conditional on his refraining from use of illicit drugs), 10 percent of the value of the sub-trusts to the Boys & Girls Club of Manteca, 10 percent to St. Vincent de Paul’s, and 10 percent to each living grandchild (there were four at the time of Bobette’s death—including appellant). The remainder of the marital share and family share sub-trusts was left to Dawn Morin. Thus, appellant was to inherit about 10 percent of the remaining value of the marital share and family share sub-trusts, and Dawn Morin about 40 percent of the assets left in those two sub-trusts. Under the terms of the Giles Revocable Trust, Bobette’s five children, including respondent James Scott Blevins, inherited equal shares in the third sub-trust—the surviving spouse trust.

Trust Litigation and Proceedings Leading to the 2009 Order

After the death of the trustors, respondent James Scott Blevins became the successor trustee. The administration of the Giles Revocable Trust took several years. In June 2008, Dawn Morin filed a petition seeking “information and an accounting” from respondent in his capacity as trustee, alleging that respondent was improperly attempting to sell trust property to his brother at an inappropriate discount. Additionally, Dawn Morin raised some questions regarding the delay in funding the sub-trusts, the propriety of transactions Bobette had undertaken in her lifetime and of the allocation of certain shares of stock to respondent.

Respondent objected to Dawn Morin’s petition, offering explanations for each of the challenged actions. After settlement negotiations, the parties reached an agreement in March 2009. Therefore, on March 25, 2009, respondent filed an amended petition seeking, among other things, court approval of a proposed plan of distribution pursuant to which Dawn Morin would receive slightly less than her designated 40 percent of the two sub-trusts. Notably, pursuant to the proposed plan, appellant also would receive slightly less than 10 percent of the sub-trusts.

On April 29, 2009, pursuant to the settlement agreement, Dawn Morin dismissed her petition for information and an accounting, with prejudice.

On May 5, 2009, the trial court granted respondent’s amended petition and signed what we have referred to as the 2009 order approving, among other things, the distribution plan proposed by the trustee. Distribution of the trust assets to the various beneficiaries was completed in 2011. Since that time, appellant has become a record owner of a number of assets pursuant to the distribution plan and she has, according to the pleadings, received income from those assets through her guardians and maternal grandparents, Daniel Thomas and Mary Thomas.

Appellant’s Motion to Vacate

On March 26, 2018, appellant filed her motion to vacate the trial court’s 2009 order and, as a corollary to that relief, to reopen the trust administration. Preliminarily, appellant’s motion pointed out that she was born in June of 2000, and as a minor she was under the care of her maternal grandparents, Daniel and Mary Thomas, who have been guardians of her person and estate. The reason for this guardianship was that appellant’s parents, Joseph Giles and Lisa Thomas, were unable to take care of her due to their drug abuse and her father Joseph’s incarceration in Florida. Appellant was first placed with Daniel and Mary Thomas in June of 2007, and their guardianship was formally approved in February of 2008 by a Wisconsin court. Since June of 2007, appellant has resided with her grandparents, the Thomases, at their home in Punta Gorda, Florida.

Appellant and her grandparents asserted in support of the motion that they were not aware that the Giles Revocable Trust existed or that appellant was a beneficiary until 2009, when the wife of the trustee called and disclosed that appellant was a beneficiary of the trust entitled to distribution of a portion of its assets. However, it was not disclosed at that time that a “lawsuit” had been initiated by Dawn Morin or a petition filed by the trustee. Nor was it disclosed at that time that a final order of the trial court had been entered concerning those matters. These relevant facts allegedly were not discovered by appellant until superior court files were inspected in 2017.

According to appellant’s motion to vacate, neither appellant nor her grandparents as guardians received service of process or other notice of the 2008-2009 proceedings in the trial court, including Dawn Morin’s petition and the trustee’s amended petition, which proceedings led to the trial court’s 2009 order affecting appellant’s rights under the trust. The proofs of service regarding those matters showed that the trustee and Dawn Morin had utilized an incorrect address to serve by mail the relevant pleadings and notices. Specifically, a numerical address or addresses on “Sandhill” in Punta Gorda, Florida, had been set forth in the proofs of service rather than the correct address, which was and is on Belem Street in Punta Gorda, Florida. Appellant’s motion argued that the failure to properly serve process on her or her guardians caused the 2009 order to be void. Additionally, appellant’s motion asserted the 2009 order was a result of extrinsic fraud. According to appellant, the void order could be set aside at any time, and she requested the trial court do so to protect her due process rights.

Respondent Trustee’s Opposition to the Motion to Vacate

Respondent opposed the motion to vacate. Respondent’s declaration in opposition to the motion stated that he was first alerted to the Thomases’ involvement as guardians for appellant in 2009, by his then wife Deena Blevins. He stated that his wife Deena had a phone call with Mary Thomas on May 18, 2009, wherein Mary Thomas explained to Deena that she and Daniel Thomas were the guardians for appellant and that all mailings should be sent to their address on Belem Street in Punta Gorda, Florida. According to respondent, prior to learning of appellant’s correct address, all correspondence and court filings for appellant were sent to addresses that, based on information and belief, were provided to him from either appellant’s father, Joseph Giles, and/or Bobette Giles prior to her death. Respondent asserted that once he learned, on or about May 18, 2009, that appellant lived with the Thomases, “I caused all communications and filings to be sent to [the Thomases] at their address.” Respondent’s declaration further stated that from that point forward, he had countless discussions with Daniel Thomas over the years regarding the trust estate and the various distributions made from it, including the initial $25,000 distribution made to appellant, plus interest, which was confirmed by attached emails and other correspondence.

Finally, according to respondent’s declaration, it would be prejudicial to the interests of all beneficiaries to grant appellant’s motion. In that regard, respondent stated: “From 2011 to the present, the various beneficiaries of the Trust, including [appellant], have continued to own various pieces of real estate together as a result of the Trust distribution; and, they continue to own an interest in at least one general partnership. Put differently, reopening this estate and unwinding the past seven years of very regular and active involvement by these former beneficiaries in real estate ventures and in business will be cataclysmic for all involved—including [appellant].”

Respondent’s attorney, Eric Nielsen, also filed a declaration in support of respondent’s opposition to the motion. Nielsen’s declaration attached documents that had been sent in 2011 to appellant’s guardians, the Thomases. The documents included: (1) a release of liability of trustee and waiver of accounting executed by the Thomases as appellant’s guardians on September 30, 2011 (the release of liability); (2) a February 17, 2011 letter from attorney Nielsen to the Thomases as appellant’s guardians, and (3) a September 8, 2011 letter from attorney Nielsen to the Thomases as appellant’s guardians. According to respondent’s opposition, these documents showed that appellant’s guardians were made aware of the relevant history of the administration of the trust, including the settlement agreement and the 2009 order, by 2011.

In his points and authorities in opposition to the motion, respondent argued the motion should be denied for several reasons, including that the signed release of liability precluded appellant’s action and that the motion was untimely under applicable law. On the latter point, respondent observed it is “well settled that where a party moves under section 473, subdivision (d), of the Code of Civil Procedure to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment’ provided by section 473.5 of the Code of Civil Procedure, that is, the two-year outer limit. (Trackman v. Kenney (2010) 187 Cal.App.4th 175; [Citations.].)”

In her reply in support of the motion to vacate, appellant conceded that “Trackman … correctly cites that where a defendant seeks to void a judgment due to failure of service, as herein, the defendant must bring his action to set aside the judgment no later than two years after entry of the judgment.” Appellant argued she fit within an exception stated in Trackman v. Kenney, supra, 187 Cal.App.4th 175 (Trackman) where the judgment was a result of extrinsic fraud, such as a falsified proof of service, in which case the motion may be made at any time provided the party acts with reasonable diligence upon learning of the relevant facts. Appellant argued that “[s]imply stated, extrinsic fraud exists and [appellant] acted with due diligence when the true facts were discovered ….”

Trial Court’s Order Denying Motion to Vacate

A hearing was held on appellant’s motion to vacate on August 31, 2018, after which the trial court took the matter under submission. On October 1, 2018, the trial court issued its order denying appellant’s motion. The trial court began by reciting the background history of the Giles Revocable Trust and of the court proceedings leading to the 2009 order. The trial court then carefully reviewed the grounds presented for appellant’s motion and the opposition. The trial court agreed with respondent that the two-year outer limit was applicable to appellant’s motion under the rule set forth in Trackman, and it was clear the two-year period had long ago expired. The trial court acknowledged an exception exists where extrinsic fraud is shown, if the party acts with diligence upon learning the relevant facts. The trial court found there was insufficient evidence to establish extrinsic fraud, but in any event, even assuming such extrinsic fraud existed, the trial court held that the 2011 letters and release of liability put appellant’s guardians on notice of the relevant facts and they failed to exercise due diligence to bring the motion to vacate within a reasonable time. Accordingly, the motion to vacate the 2009 order and to reopen administration of the trust assets was denied.

Respondent timely filed a notice of appeal from the denial of her motion.

DISCUSSION

I. Standard of Review

Whether a judgment or order is void due to lack of proper service is a question of law that we review de novo. (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) However, our review of the trial court’s decision whether to set aside a void judgment or order under the facts and circumstances before it is governed by the abuse of discretion standard. (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020; Nixon Peabody LLP v. Superior Court (2014) 230 Cal.App.4th 818, 822; Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1440–1441; Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) In applying the abuse of discretion standard, we determine whether the decision of the trial court exceeded the bounds of reason in light of the circumstances before it. (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1230.)

II. No Abuse of Discretion Shown in Denial of Motion to Vacate

Code of Civil Procedure section 473, subdivision (d), provides a trial court “may, on motion of either party after notice to the other party, set aside any void judgment or order.” In connection with such a motion, courts generally distinguish between (i) orders that are void on the face of the record and (ii) orders that appear valid on the face of the record but are shown to be void through consideration of extrinsic evidence. (Pittman v. Beck Park Apartments Ltd., supra, 20 Cal.App.5th at p. 1020.) “This distinction may be important in a particular case because it impacts the procedural mechanism available to attack the judgment [or order], when the judgment [or order] may be attacked, and how the party challenging the judgment [or order] proves that [it] is void.” (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1326, italics added.)

A. Motion Untimely Under Statutory Time Limits.

A judgment or order that is void on the face of the record may be attacked at any time. (OC Interior Services, LLC v. Nationstar Mortgage, LLC, supra, 7 Cal.App.5th at p. 1327.) However, it is clear we are not dealing with that sort of order in this case. Here, the purported ground of invalidity of the trial court’s 2009 order (i.e., lack of proper service on appellant) was not apparent on the face of the record but required the presentation of extrinsic evidence such as the declarations by appellant and her guardians regarding appellant’s correct mailing address and her alleged lack of actual notice of the trust proceedings or the lack of service of the applicable pleadings during the relevant period. To be void on the face of the record, the invalidity must be evident from the judgment roll, not extrinsic evidence. (Id. at pp. 1327–1328.) Therefore, the 2009 order was not facially void or void on the face of the record, and consequently the trial court properly considered the applicability of recognized time limits for appellant’s attack on the 2009 order.

“Where a party moves under [Code of Civil Procedure] section 473, subdivision (d) to set aside ‘a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment’ provided by [Code of Civil Procedure] section 473.5, that is, the two-year outer limit.” (Trackman, supra, 187 Cal.App.4th 175, 180, quoting 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 209, pp. 814–815; accord, Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97; Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 301, fn. 3; Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1120–1124.) As the trial court correctly found in denying appellant’s motion to vacate, the present case plainly comes within the above stated standard in Trackman for application of the two-year limitation period. The 2009 order, though valid on its face, was claimed by appellant to be void due to lack of proper service; however, appellant’s attack in 2018 on the 2009 order obviously came long after expiration of the two-year outer limit. Accordingly, unless an exception or an alternative basis for relief has been shown, appellant’s motion to vacate was clearly untimely under the two-year limitation period stated in Trackman.

In the trial court, appellant conceded that pursuant to Trackman, her challenge of the 2009 order had to be made within the two-year limitation unless an exception applied. Appellant’s position was that an exception did apply, based on the purported existence of extrinsic fraud in this case. In her appeal, appellant continues to argue that her motion to vacate was timely on the theory that the 2009 order was obtained as a result of extrinsic fraud. As more fully explained below, we conclude appellant’s extrinsic fraud argument fails to establish the trial court abused its discretion in denying the motion to vacate. In addressing this matter, the trial court found there was an inadequate showing to substantiate the occurrence of extrinsic fraud, and we believe that finding was within the bounds of reason in light of the circumstances presented in the record. In any event, even if extrinsic fraud did occur, the law still requires appellant to act with reasonable diligence upon learning the true facts. She did not do so here, as the trial court properly found in the alternative.

B. Appellant’s Claim of Extrinsic Fraud

Even after statutory deadlines have passed, a trial court may still set aside a judgment or order under its inherent equitable powers where the moving party has demonstrated the judgment or order was obtained as a result of extrinsic fraud or mistake. (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 215, p. 823 [noting such equitable relief is allowed even after the time that statutory means for review thereof have expired].) As noted in Trackman, extrinsic fraud or mistake is a distinct avenue for setting aside a void judgment or order, and “such a motion may be made at any time, provided the party acts with diligence upon learning of the relevant facts.” (Trackman, supra, 187 Cal.App.4th at p. 181.) To illustrate a situation where such relief might typically be granted, Trackman noted the example of “a falsified proof of service.” (Ibid.)

Here, appellant claimed there was extrinsic fraud perpetrated by respondent, based primarily on the asserted lack of proper service at appellant’s correct address. “Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been ‘deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’ ” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471.) The court may grant relief under its inherent equity power if, because of the fraud of a party’s opponent, the aggrieved party was prevented from presenting his claim or defense to the court. (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1068.) Extrinsic fraud has been found to occur when “ ‘ “the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff.” ’ [Citation.]” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47.) The “essential characteristic” of extrinsic fraud “is that it has the effect of preventing a fair adversary hearing, the aggrieved party being deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting that party’s claim or defense.” (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 225, p. 832; accord, Singh v. Lipworth (2014) 227 Cal.App.4th 813, 827.)

As noted, the trial court concluded the evidence failed to demonstrate extrinsic fraud on the part of respondent as trustee. In its written decision denying the motion to vacate, the trial court appears to have credited the evidence presented by respondent indicating that, although initial court filings were apparently mailed to an incorrect or obsolete address, that error was based on an address provided to respondent from either appellant’s father, Joseph Giles, and/or Bobette Giles prior to her death. Further, once the error was learned, respondent caused all further communications and filings to be sent to appellant’s correct address. Not only was appellant notified of the trust and of her status as beneficiary in mid-May of 2009, but as the trial court observed, the letters and release of liability form sent to her guardians in 2011 “included a detailed description of the various aspects of trust administration which petitioner now challenges, including the fact that all of the beneficiaries were receiving proportionately less than what was indicated in the [trust].” As the trial court further pointed out, the release of liability executed by appellant’s guardians expressly acknowledged receipt of respondent’s accountings for the relevant time period, and further acknowledged that “[appellant’s] share of the current balance on hand has been adjusted to 9.976855% due to the fact that the final share to beneficiary Dawn Morin has already been distributed as mandated by prior Court order.”

Based on the above, the trial court concluded that appellant failed to present evidence demonstrating respondent’s actions “truly amount[ed] to ‘extrinsic fraud.’ ” The record supports that conclusion. As the above summary indicates, the evidence did not reflect that respondent deliberately kept appellant in ignorance of the trust proceedings, or that respondent in any other way sought to prevent appellant’s knowledge of her rights or her involvement in the proceedings. Instead, a reasonable inference was that respondent, rather than deliberately committing an extrinsic fraud upon the court or appellant, initially utilized an incorrect address for service based on obsolete information, but promptly sought to correct that error when brought to his attention. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479 [when two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court]; see also Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 291 [policy favoring finality of judgments requires showing of exceptional circumstances after statutory period for relief expired].)

In any event, even assuming extrinsic fraud did potentially occur in this case, it was incumbent on appellant as moving party to show that she sought relief by filing the motion to vacate within a reasonable time after learning the facts. (See Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 291 [moving party must show reasonable diligence]; Trackman, supra, 187 Cal.App.4th at p. 180 [in seeking relief based on extrinsic fraud or mistake, the party must act with diligence upon learning of the relevant facts]; In re Marriage of Stevenot, supra, 154 Cal.App.3d at p. 1071 [party must show diligence in seeking to set aside the default once fraud is discovered]; Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147–1148; McGuinness v. Superior Court (1925) 196 Cal. 222, 232 [court has inherent equitable power to vacate upon motion a judgment obtained by fraud, provided that such motion is made “within a reasonable time”]; 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 219, p. 826 [in raising grounds for equitable relief against judgment, the motion must be “made within a reasonable time”].)

The trial court not only held that appellant failed to prove extrinsic fraud, but as an additional or alternative ground for denial of the motion, the trial court also concluded that appellant failed to bring her motion to vacate the 2009 order within a reasonable time. The trial court’s finding that appellant failed to act with reasonable diligence is clearly supported by the record. In 2011, two letters and the release of liability form were sent by respondent’s attorney, Eric Nielsen, to appellant’s guardians. A letter dated February 17, 2011 advised the beneficiaries, including appellant, of the status of the trust administration. The letter included the following information: “We recently provided Dawn Morin with her percentage share of the Trust reserve account as required by the terms of the prior settlement agreement between the Trust and Dawn. The Court order dated May 6, 2009 that was entered in connection with this particular dispute mandated that Dawn was to receive her percentage of the reserve account no later than December 31, 2009.” Later that year, a letter dated September 8, 2011 informed beneficiaries, including appellant, that the final trust distribution was ready to be made of the remaining asset in the trust, consisting of the funds in a reserve account. The September 8, 2011 letter explained that the reserve account balance had been held for various reasons, one of which was related to “the distribution of Dawn Morin’s share of the Trust reserve account as mandated by the previously entered Court order dated May 6, 2009.” Finally, in September 2011, the release of liability form was sent to appellant’s guardians. The release of liability form, which was signed by appellant’s guardians on September 30, 2011, stated their acknowledgement of receipt of formal accountings for the period April 3, 2003 through December 31, 2008 and for the period of January 1, 2009 through March 14, 2010. Moreover, the release of liability form further acknowledged that appellant’s share of the net trust estate “has been adjusted to 9.976855% due to the fact that the final share to beneficiary Dawn Morin has already been distributed as mandated by prior Court order.”

It is clear from the above documents provided to appellant’s guardians in 2011 that they were apprised of the existence of the settlement agreement with Dawn Morin and of the essential impact thereof, which, as embodied in the 2009 order, resulted in a slight reduction in the beneficiaries’ (including appellant’s) percentages or shares to which they were entitled under the trust. Despite this notice in 2011 regarding the 2009 order and the Dawn Morin settlement, appellant’s guardians delayed until 2018 to file appellant’s motion to vacate the 2009 order. No excuse for that lengthy delay has been presented. We conclude the trial court properly found that appellant’s motion to vacate was not made within a reasonable time after learning of the 2009 order.

For the reasons discussed hereinabove, we conclude the trial court did not abuse its discretion in denying appellant’s motion to vacate. Even if extrinsic fraud existed, appellant failed to diligently bring the motion to vacate within a reasonable time.

C. County of San Diego v. Gorham, supra, 186 Cal.App.4th 1215 is Distinguishable

In arguing the trial court nevertheless erred, appellant refers this court to County of San Diego v. Gorham, supra, 186 Cal.App.4th 1215 (Gorham). In that case, a paternity and child support complaint and summons were purportedly personally served on the defendant Gorham in 1998 at an address in San Diego. A default judgment was entered against him in 1998, and he was ordered to pay monthly child support, plus arrearages. (Id. at pp. 1221–1222.) In 2002, a San Diego County Department of Child Support Services worker informed Gorham of the existence of the default judgment. Sometime later, Gorham discovered that the process server had falsified the proof of service of summons and complaint because Gorham had been incarcerated on the date of the purported service. (Id. at pp. 1222, 1231.) In 2008, in light of the fraudulent return of service and the complete failure of any service of process, Gorham moved to set aside the 1998 default judgment. The trial court denied the motion on the ground that since the invalidity was not apparent on the face of the record, the motion had to be brought within recognized time periods—i.e., either the two-year outer limit adopted by analogy to Code of Civil Procedure section 473.5, or the shorter period set forth in Family Code section 3691, or if premised on extrinsic fraud then at least within a reasonable time after learning the facts. In short, the trial court found that Gorham waited too long, and relief was denied. (Gorham, at pp. 1223–1224.)

Gorham appealed, and the appellate court reversed. (Gorham, supra, 186 Cal.App.4th at pp. 1234–1235.) In essence, Gorham concluded that where a fraudulent return of service results in a complete failure of service of process on the defendant whose rights were at stake, there is a fundamental lack of jurisdiction over that party and any resulting order or judgment against him or her is void and may be set aside at any time. (Id. at pp. 1228–1229, 1234–1235.) In reaching that conclusion, Gorham acknowledged that where the invalidity of a judgment does not appear on the face of the record, it may be attacked by a motion in the action in which the judgment was entered, but such motion would ordinarily have to be made under a statute providing for relief within certain time limits or a reasonable time. (Id. at p. 1228.) However, the opinion also recognized that even if relief is no longer available under statutory provisions, a trial court retains the power to vacate a judgment on equitable grounds where it resulted from extrinsic fraud or mistake, or where it was established as a matter of law to be void for lack of due process. (Ibid.) In that regard, Gorham emphasized that a false return of summons proves “both” extrinsic fraud and mistake and that the judgment or order is void. (Id. at p. 1229.) Under the unique circumstances in that case of a false return of service establishing both extrinsic fraud and a complete lack of service of process, Gorham concluded that relief from the resulting void default judgment could be sought at any time. (Id. at pp. 1229–1230, 1234.) Further, under the conditions that occurred in Gorham, the court indicated that since the void default judgment was a nullity, the aggrieved party would have no duty to act diligently to protect his rights after he had obtained knowledge of it. (Id. at p. 1229.)

Based on the above synopsis of Gorham, we believe that it is distinguishable from the case now before us. As noted, Gorham involved extrinsic fraud in the form of a fraudulent return of service, which fact was dispositive to the court’s analysis. In the present appeal, however, no such false or fraudulent return of service was shown. Furthermore, although an exception to the statutory time limits for moving to vacate a void judgment due to improper service of process has of course been recognized in cases where there was extrinsic fraud involved (see, e.g., Sullivan v. Sullivan (1967) 256 Cal.App.2d 301, 303), it was still required in those cases that such a motion be made with diligence or within a reasonable time. (See, e.g., Munoz v. Lopez (1969) 275 Cal.App.2d 178, 181–182 [where false recital of service, motion must be made within reasonable time from discovery]; Washko v. Stewart (1941) 44 Cal.App.2d 311, 317–318; Smith v. Jones (1917) 174 Cal. 513, 515–516.) In any event, this was not a fraudulent return of service case, so the apparent ruling in Gorham that no diligence would be required in such unique cases may be distinguished. Therefore, we hold it was not an abuse of discretion for the trial court to require appellant to bring her motion to vacate the 2009 order, premised on alleged extrinsic fraud, within a reasonable time. (See Trackman, supra, 187 Cal.App.4th at p. 181 [a party “can show that extrinsic fraud or mistake exists, such as a falsified proof of service, and such a motion may be made at any time, provided the party acts with diligence upon learning of the relevant facts”].)

Appellant also asserts, based on principles noted in Gorham and other decisions, that if a party admits facts showing that a judgment is void, or allows such facts to be established without opposition, a court must treat the judgment as void upon its face, regardless of when such facts are brought to the court’s attention. (Gorham, supra, 186 Cal.App.4th at pp. 1229, 1231; OC Interior Services, LLC v. Nationstar Mortgage, LLC, supra, 7 Cal.App.5th 1318, 1328–1329; Hill v. City Cab & Transfer Co. (1889) 79 Cal. 188, 191.) This is sometimes referred to as “the Hill rule.” (OC Interior Services, LLC v. Nationstar Mortgage, LLC, supra, 7 Cal.App.5th at p. 1329.) Appellant’s argument is apparently that since respondent/trustee admitted to sending the initial court filings relating to the petition to an incorrect or obsolete address, the trial court’s 2009 order should have been treated as void on its face and set aside, regardless of how long it took for appellant to bring her motion to vacate. We reject that argument for two reasons. First, appellant failed to raise that theory in the trial court, but instead expressly agreed with respondent that in seeking relief based on extrinsic fraud she had to act with reasonable diligence. (See Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143 [appellate courts generally will not consider matters presented for first time on appeal]; Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1381 [failure to raise issue in trial court waives or forfeits issue on appeal].)

Second, even if not forfeited, we would decline to apply the Hill rule on the unusual facts of this case, based on an additional principle of discretion set forth in Gorham. After reciting the Hill rule (as that rule was reiterated in Thompson v. Cook (1942) 20 Cal.2d 564, 569), the Gorham decision stated as follows: “Nonetheless, a court sitting in equity in such situation may ‘refuse to exercise its jurisdiction in a proper case by declining to grant affirmative relief’ [citation], such as where ‘(1) The party seeking relief, after having had actual notice of the judgment, manifested an intention to treat the judgment as valid; and [¶] (2) Granting the relief would impair another person’s substantial interest of reliance on the judgment.’ [Citation.]” (Gorham, supra, 186 Cal.App.4th at p. 1229.) These discretionary reasons for denying relief were conspicuously present here. As noted, appellant’s guardians received, via the 2011 letters from respondent’s attorney and the 2011 release of liability, sufficient information to put them on notice of the existence of the Dawn Morin settlement and its impact on the beneficiaries’ shares as implemented under the 2009 order. Despite having notice of such matters in 2011, and instead of seeking to promptly set aside the 2009 order, the evidence showed that appellant “has received (or will receive) all property she is entitled to under the terms of the trust pursuant to the Court’s 2009 Order—which amounts to just slightly less than 10% of the assets remaining in the sub-trusts of which she is a beneficiary.” Thus, appellant and/or her guardians appear to have accepted the validity of the 2009 order. More than that, other beneficiaries also have relied on the 2009 order and the distribution of trust assets based thereon. As shown by respondent, not only was distribution of trust assets completed in 2011, but from 2011 to the present, “the various beneficiaries of the trust, including [appellant], have continued to own various pieces of real estate together as a result of the Trust distribution; and, they continue to own an interest in at least one general partnership.” As asserted by respondent, “[t]he relief sought by [a]ppellant will effectively create an unprecedented mechanism to reopen a completed trust administration and unwind the past seven years of spending, investing, selling, devising, donating, etc. the distributed Trust corpus from ten years ago.” According to respondent, granting such relief under the circumstances and after so many years have passed would be “cataclysmic.” Under all the circumstances, including the above referenced principle of discretion recognized in Gorham, we conclude the trial court did not abuse its discretion in denying appellant’s motion to vacate the 2009 order.

In conclusion, we affirm the trial court’s order denying appellant’s motion to vacate the 2009 order. The trial court was correct in holding that diligence was not shown; that is, the motion to vacate was not brought within a reasonable time. Further, as discussed above, the Gorham case is distinguishable and, in any event, does not establish an abuse of discretion in this case or require a reversal of the trial court’s denial of the motion to vacate. In short, appellant has failed to demonstrate that, under all the circumstances, the trial court abused its discretion when it denied her motion to vacate the 2009 order.

DISPOSITION

The order of the trial court is affirmed. Costs on appeal are awarded to respondent.

LEVY, Acting P.J.

WE CONCUR:

FRANSON, J.

MEEHAN, J.