Estate of Hennion CA1/3 ( 2021 )

Filed 8/10/21 Estate of Hennion CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
Estate of CHARLES EDUARD
HENNION, A161257
Deceased. (Napa County
___________________________________ Super. Ct. No. 17PR000251)
ERIK HENNION et al.
Petitioners and Respondents,
v.
STEVEN R. HENNION,
Objector and Appellant.
Steven Hennion appeals from an order denying his motion to set aside
a judgment in a trust and estate action. He argues the ruling was an abuse
of discretion because his failure to attend court hearings was excusable
neglect—he relied on a superior court clerk’s representation regarding the
status of the case and believed the cases were dismissed. He also argues the
judgment is void because he did not have any notice of the proceedings even
though the trial court dispensed with notice and further determined he was
evading service. We disagree and affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
I. Estate and Trust Petitions
Charles Hennion had five sons, Steven Hennion, Andrew Hennion, Erik
Hennion, Michael Hennion, and Ronald Hennion.1 Charles passed away in
2017 and the same year, Andrew filed a petition to administer Charles’s
estate (Estate Petition). Steven objected, claiming their father had a living
trust at the time of his death and a probate proceeding was not proper. A
written, unsigned trust, entitled Hennion Living Trust, named Steven as the
successor trust manager.
While represented by counsel, Steven filed two additional petitions—a
June 2018 petition for an order confirming the existence of a trust (Trust
Petition) and an October 2018 petition to determine title, to require transfer
of real and personal property, and seeking a determination of elder abuse.
Michael filed an objection to the Trust Petition and sought affirmative relief.
Andrew dismissed the Estate Petition in October 2018,2 although
Steven’s objection regarding the trust remained open. Steven later acting in
pro per dismissed his two petitions in June 2019.
II. Steven’s Failure to Appear at Hearings and Notices of Change
of Address
Beginning in June 2019, the trial court held a series of hearings
regarding the estate case in which Steven did not appear. For example,
Steven failed to appear at a mandatory settlement conference on June 27,
2019. As a result, the trial court ordered Steven to appear at an August 1,
1 We refer to the members of the Hennion family by their first names
for clarity, no disrespect intended.
Andrew filed a request to dismiss the Estate Petition on October 4,
2
2018. The court granted his request the following day.
2
2019, hearing and explain why he failed to attend the mandatory settlement
conference on the estate case. One day later, Steven filed a notice of change
of address from his Napa address, listing a telephone number and a
temporary address in Enid, Oklahoma.
Although he did not appear at the August 1, 2019, hearing, Steven
submitted a declaration stating “[t]here is no reason for me to
appear . . . being the case has been dismissed, including the cases
consolidated with this case.” At that hearing, the trial court continued the
matter to later in August “to address the dismissal which may have been
improper” and continued the order to show cause against Steven. Four days
later, Steven filed another notice of change of address. The notice, however,
stated he left the Oklahoma address, he was currently on the road, and he
did not have a new address to provide the court. The notice did not include a
telephone number or an email address through which Steven could be
contacted.
Steven failed to appear at the August hearing on the trial court’s own
motion to set aside the dismissal and the order to show cause. At that
hearing, the court determined that Michael’s request for affirmative relief in
his objection to the dismissed Trust Petition was a surviving issue and
construed it as a new petition.3 The court then scheduled a hearing on the
order to show cause and for case management for October 30, 2019.
Before the October hearing, the trial court mailed notices of hearing to
Steven’s Napa and Oklahoma addresses. The notices sent to the Oklahoma
3Although Steven had dismissed his petition, this new petition based
on Michael’s objection was still part of the proceeding established by the
Trust Petition. We therefore continue to refer to the new petition as the
Trust Petition.
3
address were returned as undeliverable—Steven had already left this
location and his change of address notice did not contain an address or
telephone number to contact him.
III. Judgment
On August 23, 2019, Erik filed a petition to remove Steven as
successor trust manager, for breach of trust, and to reform the trust
(Removal Petition)—a petition that was later consolidated with the Trust
Petition and are the central petitions at issue in this appeal. The Removal
Petition, as relevant here, alleged Charles Hennion intended to distribute
real property at 1527 Juanita Street, Napa, California to Erik and Michael—
40% interest to Michael and 60% interest to Erik. However in a later
petition,4 Erik alleged that on September 10, Steven improperly conveyed the
house on Juanita Street to his son, Chris Hennion.
On seven separate occasions at different times of the day, licensed
process servers attempted to personally serve Steven with the Removal
Petition at Steven’s Napa address. No one ever answered the door, the lights
were not on, and there were no vehicles in the driveway. On three different
dates, the process server noted that packages and an envelope bearing
Steven’s name and address had been delivered to Steven’s house but were
removed from the front porch between service attempts. Personal service at
Steven’s Oklahoma address also failed. Efforts to locate Steven included
4While this appeal was pending, we partially granted Erik’s unopposed
motion to augment the record with petitions and orders related to this case.
We deferred ruling on whether to augment the record with this October 24,
2019, Petition to Determine Ownership of Trust Property [Prob. Code 850];
Breach of Trust; Injunctive Relief; Constructive Trust. We now grant Erik’s
request, and that petition, identified as a related case, and its exhibits are
part of the record on appeal.
4
searching for him through social media platforms, internet search engines,
and an Oklahoma county recorder website. Erik also determined Steven’s
daughter lived at Steven’s Oklahoma address, but did not contact her because
he thought it inappropriate. Erik and his counsel filed declarations detailing
these unsuccessful efforts and applied ex parte for an order to dispense with
notice to Steven. Erik’s counsel also attempted to contact Steven by
telephone before the hearing on the ex parte application and left him a
message advising him of the hearing. At the hearing on the ex parte
application, Steven did not appear, and the trial court dispensed with notice
to Steven and set the hearing on the Removal Petition for October 30, 2019.
At the October 30th hearing, the trial court removed Steven as trust
manager and appointed Erik as his successor. After an additional
evidentiary hearing on reforming the trust, surcharges, and damages, the
court entered a judgment confirming the 1527 Juanita Street property was
distributed to Erik and Michael. It also ordered Steven to pay the trust
$91,000.00 in lost rental income and $1,980.72 in interest and penalties
based on Steven’s failure to pay outstanding property taxes for the 1527
Juanita Street property. He was also ordered to pay $98,549.74 for his
brothers’ attorney fees and costs. Steven did not appear at these hearings
because, as the trial court noted, a prior judge dispensed with providing
notice to Steven since he appeared to be evading service.
IV. Motion to Set Aside the Judgment
In March 2020, Steven’s attorney, retained for a related matter,
discovered that the judgment had been entered against Steven. Steven
moved to set it aside, arguing that he was never notified of any continued
court proceedings, and that his failure to attend hearings was excusable
because he relied on representations by a court clerk that the cases were
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dismissed. The trial court disagreed, noting its prior finding that Steven was
evading service. It concluded that Steven “decided to make himself
unlocatable during a time period when he was aware that many disputes
regarding the parents’ estate/trust were unresolved.”
DISCUSSION
I. Motion to Set Aside the Judgment
Steven contends his failure to attend the court proceedings was the
result of excusable neglect since he relied on a superior court clerk’s
statements that the trust and estate cases were closed. He argues the trial
court abused its discretion by denying him relief from the judgment. We
disagree.
Code of Civil Procedure section 473 authorizes the court to relieve a
party from a judgment if a party demonstrates it was the result of mistake,
inadvertence, surprise, or excusable neglect. (Civ. Proc. Code,5 § 473, subd.
(b); Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1042.) We review a trial
court’s denial of a motion to set aside a judgment for abuse of discretion.
(Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.)
But because the law favors dispositions on the merits, we scrutinize any
order denying section 473 relief more carefully, with doubts in applying
section 473 resolved in favor of the party seeking relief from the judgment.
(Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 (Rappleyea).) We defer to
the trial court’s assessments of credibility and accept its factual findings
where they are based on substantial evidence. (Falahati v. Kondo (2005) 127
Cal.App.4th 823, 828.) After engaging in that review here, we find no abuse
of discretion.
5All further references are to the Code of Civil Procedure unless
otherwise indicated.
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A. Excusable Neglect
We agree with the trial court that Steven’s neglect of these proceedings
was not excusable because his act or omission would not “have been
committed by a reasonably prudent person under the same circumstances.”
(Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275,
279.) He admitted receiving notice about the August 2019 hearing to explain
his failure to appear at a mandatory settlement conference, but did not
attend. He insists this was reasonable because he relied on the superior
court clerk’s representation that the cases were dismissed. However, he
acknowledges receiving notice of the hearing after his conversation with the
clerk regarding the dismissed cases. Moreover, the trial court never
dismissed the order to show cause and never excused Steven from appearing
at the hearing on that order after Steven filed his declaration. This placed
Steven on notice that he still needed to appear and that the litigation in these
cases may still be pending. Indeed, the parties discussed whether the
dismissals were improper during that August 1st hearing. Rather than again
asking the clerk whether he needed to appear at the hearing or attempting to
clarify whether this notice was sent in error—as a reasonably prudent person
under the same circumstances would have done—he simply submitted a
declaration conclusively stating the cases were dismissed and there was no
need to appear. (See ibid.)
These circumstances are thus distinguishable from Melde v. Reynolds
(1900) 129 Cal. 308, and Lynch v. De Boom (1915) 26 Cal.App. 311, both
finding the parties’ neglect was excusable. (Melde, supra, 129 Cal. at p. 313
[trial court abused its discretion denying motion to set aside judgment];
Lynch, supra, 26 Cal.App. at p. 314 [same].) In those cases, the parties
engaged in efforts to identify the dates of their court hearings and only
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missed their hearings after relying on the court clerks’ incorrect statements
that their cases had not been calendared. (Melde, supra, 129 Cal. at p. 311
[defendant’s acceptance of the clerk’s and judge’s statements was an
excusable mistake, given that the defendant made “an honest effort to
ascertain the condition of the cause” but was misled]; Lynch, supra, 26
Cal.App. at p. 313 [same].) Here, in contrast, Steven was presented with an
order that expressly required his appearance on a specific date. The record
does not indicate Steven engaged in any efforts to determine the status of his
case or confirm whether his appearance was required despite those
dismissals. (See Melde, supra, 129 Cal. at p. 311 [courts assess whether
party’s failure to determine the date for trial “was under the circumstances
excusable, or the result of carelessness or inattention”].) Although Steven
was self-represented during this time, that does not excuse any lack of
diligence. (Rappleyea, supra, 8 Cal.4th at pp. 984–985.) Contrary to Steven’s
suggestion, those actions were unreasonably imprudent, and do not
constitute excusable neglect.
B. Evading Service
The trial court further determined Steven’s neglect was not excusable
because he evaded service—he made himself “unlocatable” despite the
pending disputes regarding his parents’ estate in which he was accused of
wrongdoing. Steven claims there was insufficient evidence that he evaded
service and instead argues Erik deliberately failed to serve him. This is
unconvincing.
Critically, Erik and his counsel filed declarations detailing their efforts
to locate Steven and multiple failed personal service attempts at Steven’s last
known Napa and Oklahoma addresses. One process server stated that on
three separate occasions, a package or envelope bearing Steven’s name and
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Napa address was removed from the front porch between the server’s visits,
indicating that someone may have been present at the house. Personal
service on Steven at his last known address in Oklahoma could not be
completed because he did not live there. Later testimony established that
while these proceedings were taking place, Steven actually left for Southeast
Asia and planned to live there for approximately two years. His son testified
that he did not know Steven’s location, that his contact with Steven was
sporadic, and that he received only a few messages from his father via social
media platforms. On that basis, the trial court determined Steven “kind of
flew the coop here right in the middle of everything” and “just sort of buried
his head.”
Steven faults Erik for attempting to serve him at places that he no
longer occupied. However, Steven expressly stated in his Notice of Change of
Address that he did not have any address to provide the court. He also did
not include any telephone number or email address in his notice of change of
address in violation of the California Rules of Court. (See Cal. Rules of
Court, rules 2.111, subd. (1), 2.200.) Steven fails to explain how the other
parties could contact him when he essentially notified the court that he was
unreachable. His additional claim—that the parties in fact had his email
address and telephone number, and that a telephone call would have
provided him with adequate and actual notice—is belied by the record. Even
after Erik’s counsel telephoned Steven and left him a message notifying him
of the hearing on the request to dispense with notice, Steven did not appear.
Under these circumstances, the parties’ failure to continually call Steven does
not indicate a lack of diligence. (Watts v. Crawford (1995) 10 Cal.4th 743,
749, fn. 5 [“ ‘ “reasonable diligence” ’ ” denotes “ ‘a thorough, systematic
investigation and inquiry conducted in good faith by the party or his agent or
9
attorney’ ”].) And to the extent Steven questions whether Erik and his
counsel actually called him on the telephone or employed process servers,
that is an issue of credibility and we “do not interfere with [the trial court’s]
determinations of these matters.” (McClain v. Kissler (2019) 39 Cal.App.5th
399, 415.) Ample evidence supported the trial court’s finding of evasion.
We further reject Steven’s claim that the trial court expressed doubts
about its tentative ruling during the hearing on his motion, thus requiring a
resolution in his favor. (See Rappleyea, supra, 8 Cal.4th at pp. 980–981.) A
“judge’s comments in oral argument may never be used to impeach the final
order, however valuable to illustrate the court’s theory they might be under
some circumstances.” (Jespersen v. Zubiate-Beauchamp (2003) 114
Cal.App.4th 624, 633.) Although the trial court expressed doubts that Erik’s
efforts to serve Steven were “optimum . . . with regard to emails and phone
calls and texts,” the trial court’s written order ultimately does not disclose
any doubts of its finding that Steven evaded service based on the available
information. The order denying Steven’s motion was not beyond the bounds
of reason warranting reversal. (See Mechling v. Asbestos Defendants (2018)
29 Cal.App.5th 1241, 1249 [“That a different decision could have been
reached is not sufficient” for reversal “because we cannot substitute our
discretion for that of the trial court”].)
II. Judgment is Not Void
Steven next argues that the judgment is void on its face—the “defect is
apparent upon examination of the record” rather than extrinsic evidence—
because he did not have any notice of the proceedings, an issue we review de
novo. (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 696; Giorgio v. Synergy
Management Group, LLC (2014) 231 Cal.App.4th 241, 247 [standard of
review].) There is no dispute that Steven did not have actual notice, and as
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Steven correctly notes, a judgment entered against a party who has not been
served in the manner required under statute is void. (County of San Diego v.
Gorham (2010) 186 Cal.App.4th 1215, 1226–1227.) Yet Steven glosses over
the trial court’s order dispensing with notice and the additional finding he
was evading service. Instead, Steven claims the order dispensing with notice
was improper because Erik failed to exercise reasonable diligence in locating
him or serving him by other available methods such as publication. This is
unconvincing.
For good cause, a court may proscribe the manner of giving notice or
dispense with notice “[i]f a person entitled to notice cannot be located after
diligent search.” (Cal. Rules of Court, rule 7.52, subd. (c); Prob. Code, § 1220,
subd. (c).) A request to dispense with notice must be accompanied by a
declaration describing diligent efforts to locate the party entitled to notice
under the Probate Code. (Cal. Rules of Court, rule 7.52, subd. (a); Watts,
supra, 10 Cal.4th at p. 763, fn. 5 [defining “reasonable diligence”].) This
includes “a description of the attempts to learn of the person’s business and
residence addresses by: (1) Inquiry of the relatives, friends, acquaintances,
and employers of the person entitled to notice and of the person who is the
subject of the proceeding; (2) Review of appropriate city telephone directories
and directory assistance; and (3) Search of the real and personal property
indexes in the recorder’s and assessor’s offices for the county where the
person was last known or believed to reside.” (Cal. Rules of Court, rule 7.52,
subds. (a)(1)-(3).)
Those requirements were satisfied here. Erik submitted declarations
documenting his, his son’s, and his counsel’s efforts to locate Steven through
social media platforms, internet search engines, and legal research
databases. The declaration included Erik’s search of the Garfield County
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Oklahoma recorder’s website, which confirmed Steven’s last known residence
in Oklahoma belonged to Steven’s daughter. (See Cal. Rules of Court, rule
7.52, subd. (a)(3).) Erik’s counsel contacted Steven by telephone, left him a
message advising him of the hearing on whether to dispense with notice, but
did not obtain any response. Process servers attempted personal service on
eight different occasions. The court then dispensed with notice after finding
“all notices required by law have been given. . . [n]o requests for special notice
have been filed.”
Steven contends these efforts by Erik to locate and serve him were
inadequate because Erik did not: (1) attempt service by publication;
(2) contact Jessica Hennion, Steven’s daughter, to discover his whereabouts;
or (3) email, text, or telephone Steven multiple times. Service by publication
is not, however, required before dispensing with notice. (See In re Jennelle C.
(1987) 197 Cal.App.3d 813, 818 [finding due diligence “in attempting to notify
the alleged father of the hearing” despite failure to serve by publication]; see
also Watts, supra, 10 Cal.4th at p. 749, fn. 5 [noting that service by
publication “rarely results in actual notice”].) Likewise, the failure to contact
Steven’s daughter or email, text, or telephone Steven multiple times does not
preclude a finding of due diligence. Indeed, only “a number of honest
attempts to learn the defendant’s whereabouts through inquiry and
investigation generally” is needed to demonstrate diligence. (Rios v. Singh
(2021) 65 Cal.App.5th 871, 880.)
In this case, Erik made numerous attempts to find and serve Steven,
including calling and leaving him a message at least once. Erik did so even
though Steven filed a notice stating he was, for all practical purposes,
unreachable. Although Erik arguably could have done more to find and serve
Steven, his failure to do so is not unreasonable in light of Steven’s purposeful
12
evasion of service. (Ante, at pp. 9–11.) We therefore conclude that Erik
exercised reasonable diligence. Accordingly, the trial court’s decision to
dispense with notice to Steven was proper.
DISPOSITION
The judgment is affirmed.
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_________________________
Chou, J.*
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Jackson, J.
A161257
*Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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