Can Extrinsic Evidence be Considered in Evaluating Probate of a Will?

This issue was addressed in the recent decision in the California case of Estate of Berger, and suggests the value of the alternative estate plan including a revocable living trust and pour-over will. 

In Berger, the appellate court recognized that the California Probate Code mandates that a document will be considered a “will” capable of being probated in court only if the document is in writing, signed (or authorized) by the testator, and signed by two people who witnessed the testator sign or acknowledge her signature. 

 

However, the code will overlook a failure to comply with the two-witness requirement if the party seeking to probate the document as a will establishes by clear and convincing evidence (i.e., higher than more likely true than not (civil cases) and less than beyond a reasonable doubt (criminal cases)), that, at the time the testator signed the document, the testator intended the document to constitute the testator’s will.

 

The appeal presented two questions: 

(1) In evaluating the testator’s intent, may a probate court consider extrinsic evidence of the circumstances surrounding the document’s execution if the intent expressed by the document’s terms is unambiguous, and 

(2) Do the facts of tes case compel, as a matter of law, a finding by clear and convincing evidence that the drafter of the document at issue intended the document to make a revocable disposition of property that takes effect upon her death?

 

The appellate court concluded that the answer to both questions was “yes.”

 

Melanie Berger (Melanie) started dating Maria Coronado (Maria) in the spring of 2002. At that time, Maria was in the midst of a divorce and had three daughters who were then 15, 11, and 10 years old. Melanie had met the daughters a few times prior to August 2002. 

 

In early August 2002, Maria proposed marriage to Melanie with a diamond solitaire ring and the two became engaged. 

 

Melanie was assigned male at birth.  After living as a woman and wearing female clothing for a year as her doctor ordered, Melanie arranged to have gender reassignment surgery in late August 2002. That surgery entailed the surgical alteration of her sex organs. 

 

After proposing to Melanie but before Melanie had her surgery, Maria traveled to Spain with her daughters to visit family. While Maria was in Spain, Melanie and Maria corresponded through email using a variety of different email accounts. 

 

Specifically, Maria sent Melanie an email on the day she arrived in Spain. 

 

The letter starts with the date “8-16-02”; lists Melanie’s full name, address, and social security number; and begins with the salutation “To whom it may concern.” The letter then reads as follows: “I, Melanie Perry Berger, with sound mind and excellent health, name Maria L. [Coronado], [lists Maria’s then-current address], as my sole beneficiary in the event of my death. She will take ownership of all my personal possessions and property located at [address of Melanie’s house in Pasadena]. 

 

She will make the sole determinations as to what she will keep, and what personal belongings that may, or may not, be distributed to any inquiring family members. She will also receive, and have full discretion of: 1. My [Pasadena] home located at [listing address]. 2. My retirement Thrift Savings. 3. My 1984 Mercedes Benz 300 CD, license [listing number]. 4. My Washington Mutual checking account [listing number]. 5. Any and all wages paid to my account, post mortem. 

 

It should be noted that I would prefer to have some of the above Thrift assets set aside for the education of [Maria’s] three daughters, [naming each]. This is, however, only a suggestion, and Maria . . . shall have the final decision on these matters.” 

 

The letter closes with “Sign[ed] and dated 8-16-02 in Pasadena, California,” and beneath it, Melanie’s signature. 

 

No one witnessed Melanie sign the letter. 

 

On the very same day as the letter is dated, Melanie sent Maria an email informing her that Melanie “decided” to “leave the house, all the belongings, [her] record collection and [her] car” to Maria and also would “leave [her] retirement savings in [Maria’s] name to be used for the three girls[’] college education in the event of [her] death.” 

 

Melanie explained that she would “leave these documents on [Maria’s] desk” “chair” “before [Melanie] leaves” for her gender reassignment surgery. 

 

When Maria returned home from Spain, she found a copy of the letter on her desk chair.

 

Although Melanie and Maria continued dating for another six months after Melanie’s surgery and Maria’s return from Spain, the two did not discuss the letter at any point thereafter. Neither Melanie nor Maria mentioned the letter to Maria’s daughters. 

 

Melanie did not file the paperwork to designate Maria as the beneficiary on her retirement account. 

 

Melanie and Maria ended their romantic relationship in the spring of 2003, and ceased all contact with one another. 

 

Melanie became somewhat of a recluse and “hardly ever left the house.” 

 

In 2020, Melanie became increasingly religious and told neighbors that she wanted to leave her assets “to the church.” There is no evidence Melanie ever memorialized her new intention. 

Melanie passed away on November 30, 2020.

As the pastor of Melanie’s church was going through Melanie’s personal effects in her home, he found the letter at the bottom of one of the drawers of Melanie’s desk. The pastor gave a copy to Melanie’s sister and called Maria to inform her of Melanie’s death. 

 

By this point in time, Maria had lost the copy of the letter Melanie had left on her desk chair 18 years earlier.

On February 4, 2021, Maria filed a petition seeking to have the letter probated as Melanie’s will. Melanie’s sister, who was otherwise Melanie’s sole heir at law, opposed the petition. 

 

The probate court held a two-day evidentiary hearing in 2021. Maria, Melanie’s sister and a handwriting expert testified. The court admitted the letter as well as several of the August 2002 emails between Melanie and Maria. 

 

At the conclusion of the second day, the probate court denied Maria’s petition. 

 

Because the letter did not comply with the general requirements for a will under the Probate Code, the court viewed its “threshold” task—before reaching any questions of fraud or undue influence—as “ascertain[ing]” “whether” Maria had proven, by clear and convincing evidence, that Melanie intended the letter to be her will. The court expressed that it “ha[d] doubts about the letter and its context,” explaining that “perhaps” Melanie meant to benefit Maria or “perhaps, she had forgotten” about the letter in the intervening years.

 

Maria filed a timely appeal. 

 

In California, “[t]he right to dispose of property by will is entirely statutory.” 

 

The Probate Code prescribes that a document is effective as a will only if it is 

(1) “in writing”; 

(2) “signed” (a) by the testator, (b) by someone else, but in the testator’s name, in the testator’s presence, and by the testator’s direction, or (c) by a conservator acting pursuant to a court order; and 

(3) witnessed by at least two persons who (a) at the same time witnessed the testator sign the document or acknowledge her signature or the document, and (b) sign the document during the testator’s lifetime while understanding that the instrument they sign is the testator’s will. 

 

Requiring a testator to adhere to such formalities serves three functions—namely, 

(1) an evidentiary function by furnishing reliable evidence about the testator’s intent that prevents fraudulent dispositions of the testator's properties; 

(2) a protective function by reducing the possibility of interference with the process of execution; and 

(3) a cautionary or ritual function to help ensure that the will reflects a considered decision. 

 

But these prescribed procedures are not without exception. Specifically, the code will overlook a testator’s noncompliance with the two-witness requirement:

(1) if the material provisions of the document are in the handwriting of the testator (in which case it is called a “holographic will”), or 

(2) if the party seeking to have the probate court recognize the document as a will establishes by clear and convincing evidence that, at the time the testator signed the document, the testator intended the document to constitute the testator’s will.

 

These relaxed procedures are designed to give effect to a drafter’s clear intent to dispose of property through a proffered document, even when that document has procedural deficiencies or mistakes that cause it to fall short of fully complying with the Probate Code’s procedures. 

 

In assessing whether an instrument was intended to be testamentary, the probate court is to look to (1) the words in the document itself, and (2) the “circumstances” “surrounding” its creation and execution. 

 

When it comes to the words used, no particular words are necessary to show a testamentary intent, but words referring to the drafter’s potential death tend to indicate such an intent. 

 

When it comes to the surrounding circumstances, courts may examine, among other things, (1) whether the document was drafted at a time when death was near (or nearer than usual) or whether other “extreme circumstances” exist, as persons drafting documents at such times are more likely to be acting with testamentary intent; and (2) whether the drafter has retained the document, as persons are more likely to retain documents that were meant to have lasting effect.

 

Although courts as a general matter may not resort to extrinsic evidence in interpreting the meaning of a document (including a will) when the document’s terms are unambiguous, this principle does not apply here. 

 

That is because the probate court’s task here is not to assess the meaning of the words in a document, but instead to assess the meaning of the document itself—namely, was that document intended to be a will? 

 

In this particular context, an unbroken line of precedent squarely establishes that extrinsic evidence is always admissible on the question of the drafter’s intent. 

 

Taken together, the words in the letter itself and the circumstances surrounding its creation and execution compel the finding, as a matter of law, that Melanie intended her letter to have testamentary effect. 

 

The substance of the letter names Maria as Melanie’s “sole beneficiary" in the event of her death as well as the person who has “full discretion” to dispose of all of her personal possessions and property; lists four of Melanie’s most significant assets (namely, her house, her retirement account, her car, and her checking account); and even contemplates that “inquiring family members” might seek some of her belongings, but leaves it to Maria to decide which “personal belongings” to give them. 

 

The format of the letter also evinces a level of formality consistent with a document meant to have enduring effect: 

Melanie drafted the letter on her work stationery; recited her full name, address, and social security number; addressed it “[t]o whom it may concern”; 

started the letter with a recitation of her “sound mind and excellent health”; and 

concluded the letter with a recitation of the date and location of signing as well as her signature.

 

The surrounding circumstances further conclusively confirm Melanie’s intent to make a revocable disposition of her property to take effect upon her death.” 

 

Melanie told Maria—the “sole beneficiary” and effective executor of the will—that Melanie was executing a “will” and Melanie did so in an email sent on the very same day she created and executed the letter. 

 

What is more, Melanie on that date was days away from having major surgery, and hence wrote the letter at a moment in time when she was more acutely facing her own mortality. 

 

Melanie also treated the letter like a will insofar as she gave Maria (again, the sole beneficiary and executor of the will) a copy of the letter and kept the original for herself in a place where it was likely to be found—and was, indeed, found—decades later. 

 

None of the reasons cited by the probate court or proffered by Melanie’s sister negated this conclusion. 

 

LESSONS:

 

1.         A document will be considered a “will” capable of being probated in court only if the document is in writing, signed (or authorized) by the testator, and signed by two people who witnessed the testator sign or acknowledge her signature. 

 

2.         The code will overlook a failure to comply with the two-witness requirement if the party seeking to probate the document as a will “establishes by clear and convincing evidence that, at the time the testator signed the [document], the testator intended the [document] to constitute the testator’s will.”

 

3.         An unbroken line of precedent squarely establishes that extrinsic evidence is always admissible on the question of the drafter’s intent. 

How Should a Revocable Trust be Amended in California?

 In the recent case in Diaz v. Zuniga, the appellate court had to decide which of two provisions governs a settlor’s purported amendment of a revocable trust—Probate Code section 15402 or the terms of the trust—when the trust instrument specifies how the trust may be modified but does not state that the specified modification method is exclusive.  

California courts are divided on this issue, and it is currently pending before the California Supreme Court in Balistreri v. Balistreri, King v. Lynch and Haggerty v. Thornton.

 

The appellate court concluded the trust terms governing amendments control and applied the reasoning of the courts in Balistreri and King.

 

The settlor’s purported amendment in this case did not conform to the trust terms and was held invalid. 

 

The appellate court therefore affirmed the trial court's judgment invalidating the purported amendment. 

 

A settlor purports to amend his revokable trust. He is both the trustor and trustee. The trust document (the Trust) provides that to amend the Trust he must send the document by certified mail to the trustee. This he did not do. 

 

Here the appellate court decided his purported amendment did not conform to the trust terms and was invalid. 

 

The Trust became irrevocable upon the death of the settlor, Mateo Diaz (Mateo), on May 6, 2018. 

 

Soon after Mateo’s death, a purported trust amendment dated in 2007 was found in an envelope among papers in a container kept in Mateo’s bedroom closet. The stamped envelope was addressed to his attorney. There is no evidence in the record to indicate Mateo discussed the 2007 document with anyone or that he mailed it to his lawyer. 

 

Article X of the Trust governs trust amendments. It states in relevant part: “The Trustor may at any time during Trustor’s lifetime amend any of the terms of this instrument by an instrument in writing signed by the Trustor and delivered by certified mail to the Trustee.” 

 

Article IX of the Trust governs revocations and states in relevant part that “[t]his Trust may be revoked in whole or in part by the Trustor during Trustor’s lifetime.”  

 

Appellants Robert Diaz (Robert), Jessie Diaz, Alex Diaz, Carmen Ortega, Gloria Redondo, Linda Johnson, Annette Roberts, and Salvador Diaz (collectively appellants) are beneficiaries of the Trust. 

 

Robert is also a co- trustee of the Trust. Respondent Marisela Zuniga (Marisela) is also a co- trustee and beneficiary of the Trust. 

 

The 2007 document purported to alter the distribution of certain Trust assets upon Mateo’s death, substantially reallocating the value of the distributions among the various beneficiaries. The Trust assets include two real property parcels located in Montclair and Temple City. 

 

In the original Trust declaration, the Montclair property was to be distributed equally to all of Mateo’s seven siblings; and the Temple City property was to be distributed solely to Marisela, with the exception of the sum of $100,000, which was to be distributed solely to Annette Louise Roberts Diaz. 

 

In the 2007 document, the Montclair property was to be distributed equally to only two of Mateo’s siblings, and the Temple City property was to be distributed 10 percent to Marisela, 20 percent to Annette Louise Roberts Diaz, and 10 percent to each of Mateo’s seven siblings. 

 

Robert and Marisela, in their respective capacities as co-trustees of the Trust, filed separate petitions requesting instructions as to whether the 2007 document should be treated as a valid Trust amendment. 

 

The parties submitted a joint trial statement and a joint statement of stipulated facts and agreed to the admission of certain documents. The matter was tried on April 28, 2021. 

 

The trial court issued a final statement of decision ruling that the 2007 document did not constitute a valid amendment to the Trust because Mateo did not deliver the 2007 document to himself as trustee by certified mail, as specified in Article X of the Trust. 

 

A judgment decreeing that the 2007 document did not constitute a valid amendment to the Trust was entered, and the appeal followed. 

 

The Probate Code governs modification and revocation of a trust. 

 

Section 15401(a) sets forth alternative methods for revocation. Under the first method, a trust may be revoked by “compliance with any method of revocation provided in the trust instrument.” 

 

Under the second method, a trust may be revoked in “a writing, other than a will, signed by the settlor . . . and delivered to the trustee during the lifetime of the settlor.”

 

The statute states, however, that if “the trust instrument explicitly makes the method of revocation provided in the trust instrument the exclusive method of revocation,” that method must be used. 

 

For the trust revocation terms to override the statutory revocation provisions, the trust must contain “an explicit statement that the trust’s revocation method is exclusive.” 

 

Section 15402 governs modification of a trust, and states: “Unless the trust instrument provides otherwise, if a trust is revocable by the settlor, the settlor may modify the trust by the procedure for revocation.”

Under section 15402, when “the trust instrument is silent on modification, the trust may be modified in the same manner in which it could be revoked, either statutorily or as provided in the trust instrument.” 

California courts are divided as to what happens when the trust instrument specifies how the trust may be modified but does not state that the specified modification method is exclusive. 

 

In one line of cases, courts have held that when the trust instrument “specifies how the trust is to be modified,” then “that method must be used to amend the trust.” 

 

In contrast, the court in Haggerty and the dissent in King concluded that unless the trust terms expressly preclude the settlor from using alternative statutory methods to modify the trust instrument, the modification procedures set forth in section 15402 may be used. 

 

The appellate court found the reasoning of the courts in Balistreri and the King majority more persuasive than that in Haggerty and the King dissent. 

 

The plain language of section 15402 states that a settlor may modify the trust by the procedure for revocation set forth in section 15401 “[u]nless the trust instrument provides otherwise.” 

 

That qualifying statutory language is clear and unambiguous, particularly when read together with section 15401. Unlike section 15401, section 15402 does not require the trust instrument to “explicitly” state that the method of revocation provided in the trust instrument is the “exclusive” method of modification for the trust terms to displace the statutory modification provisions. 

 

 The trust instrument in this case distinguishes between revocation and modification. Article IX addresses revocation and includes no specific procedure for doing so. It simply states: “This Trust may be revoked in whole or in part by the Trustor during Trustor’s lifetime.” 

 

Article X, in contrast, includes a specific procedure for trust modification. It states that the Trustor may “amend any of the terms of this instrument by an instrument in writing signed by the Trustor and delivered by certified mail to the Trustee.” 

 

Had Mateo followed the amendment procedures set forth in Article X of the trust, his intention to modify the trust terms would not be in doubt. On the facts presented here, Mateo’s intentions are unclear. 

 

After drafting and signing the 2007 document, Mateo may have placed the document in his closet in order to reflect on the proposed changes before finalizing them. That he did not do so by sending the document to himself by certified mail may indicate that he decided against the modifications. 

 

Section 15402 does not apply here because Article X of the Trust provides a specific procedure for modification of the trust terms. Article X therefore displaces the alternative statutory modification procedures under sections 15401 and 15402. 

 

A contrary result would frustrate the intent of the trustor, Mateo, who chose a specific method for amending the Trust terms. 

 

The 2007 document did not conform to that method and did not constitute a valid amendment of the Trust. The trial court did not err in reaching this conclusion. 

 

That Article X of the Trust uses permissive, rather than mandatory language, stating that the trustor “may” amend the Trust terms, does not make the alternative statutory procedures available. 

 

Article X sets forth a specific method for amending the Trust terms—“by an instrument in writing signed by the Trustor and delivered by certified mail to the Trustee.” Trust amendments may be made only by this method. 

 

Mateo’s intent as trustor is evident in Article X, which sets forth a specific method for amending the Trust terms. 

 

LESSONS:

 

1.         California courts are divided as to what happens when the trust instrument specifies how the trust may be modified but does not state that the specified modification method is exclusive. 

 

2.         The trust provisions for modification and amendment should be followed to insure the amendment is valid.

 

3.         The Probate Code governs modification and revocation of a trust. 

Is Relief Available After Default on Partition Action?

In the recent California decision in Braugh v. Dow, the appeal arose from a partition action by Jane Braugh (Braugh) against her former significant other Roy H. Dow (Dow). 

The trial court entered default and a default judgment against Dow. Nearly two years later, Dow moved to vacate the default and resulting judgment, alleging he was never effectively served with the summons and complaint. The trial court granted the motion. 

 

On appeal, Braugh argued the trial court should not have granted Dow set aside relief because her personal service of the summons and complaint on Dow was proper and Dow’s motion was “untimely.” Braugh also argued the trial court abused its discretion in not considering the estoppel doctrine when making its ruling. 

 

The appellate court disagreed with Braugh and affirmed the trial court’s order granting the motion to set aside. 

 

Braugh and Dow, an unmarried couple, owned a family home located in Sun Valley, California (the Property).

 

They ended their relationship in 2013. They share a minor daughter, for whom they were embroiled in a “contentious custody battle” throughout 2018 and 2019. 

 

Braugh is an attorney licensed in California, and in 2018, Braugh filed a complaint against Dow alleging three causes of action: 1) partition; 2) accounting and compensatory adjustments; and 3) injunctive relief. 

 

The subject of this action was the Property. Braugh alleged that Braugh and Dow are the owners of the Property, and they hold title as joint tenants with right of survivorship.

 

Braugh sought a partition of the Property because Dow had not paid on the mortgage and other liens since 2004, and he also refused to pay for necessary repairs and improvements that enhance the value of the Property. 

 

Due to Dow’s refusal to make an accounting and/or pay to Braugh compensatory adjustments or the sums due, the proceeds from future rents and profits of the Property were in danger of being lost, diminished or misappropriated by Dow. 

 

Braugh alleged she was entitled to an accounting and compensatory adjustments for expenditures in excess of her fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages and other liens, insurance for the common benefit and protection and preservation of title. 

 

Braugh filed a proof of service of summons, stating she herself served a copy of the summons and complaint on Dow at the Property’s address via personal service. 

 

Braugh signed the proof of service of summons declaring under penalty of perjury that at the time of service she was at least 18 years of age and not a party to this action.

 

Braugh filed a request for entry of default, which the court immediately granted. The court scheduled a default prove-up hearing, and ordered Braugh to provide the court with a proposed judgment conforming to her claims on the hearing date. 

 

At the default prove-up hearing, Braugh represented herself and presented argument. Later, the court quieted title to the Property and ordered the transfer of Dow’s interest in the Property to Braugh, so that title will now be held solely by Braugh.

 

A grant deed was recorded to that effect. 

 

One year and nine months later, Dow filed a motion to set aside the default and default judgment.

 

He argued the default and default judgment were void as a matter of law because service of the summons was defective as Braugh, a party to the action, personally served the moving papers on Dow, in violation of California law. 

 

Dow argued this resulted in a lack of personal jurisdiction over him, rendering the default and default judgment void. He argued, in the alternative, that the court should set aside the default and default judgment. 

 

Dow provided a declaration in support of the motion, which alleged that sometime in 2018, Braugh provided Dow’s (now former) family law attorney in the custody matter with a copy of a “draft complaint.” The attorney did not accept service on behalf of Dow, as he was retained as counsel solely for the family law matter. Then, in 2018, Braugh entered the Subject Property while Dow was at home and personally served him with the Summons and Complaint. 

It was not until 2019 that Dow and his new family law counsel realized Braugh had entered a default judgment. 

 

Dow argued it was immaterial whether he actually received the Summons and Complaint because Braugh failed to comply with California law which resulted in a lack of personal jurisdiction. 

 

He also argued Braugh did not stand to be prejudiced if the default judgment and entry of default were set aside because she had not taken any depositions, conducted any discovery, or otherwise expended any resources. Braugh was a California attorney and knew that such service was in violation of section 414.10. 

 

Conversely, Dow will be severely prejudice if he is unable to defend himself and have this case decided on the merits given the damages sought by Braugh, including his family home and substantial sums of money. 

 

Braugh filed her opposition to the motion to set aside. She argued that Dow admitted in his moving papers that he was personally served with the moving papers at the Property, resulting in actual notice of the lawsuit; however, neither he nor his lawyers did anything. 

 

Braugh also pointed out that despite Dow having learned about the default judgment in 2019, he did not file his set aside motion until 2020, and provided no legal grounds excusing his inaction. 

The court may on motion of either party after notice to the other party, set aside any void judgment or order. 

 

Generally, defendants have six months from entry of judgment to move to vacate. But, if the judgment is void on its face, then the six month limit to make other motions to vacate a judgment doo not apply.

 

A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll. 

 

This inquiry, however, does not hinge on evidence: A void judgment’s invalidity appears on the face of the record. 

 

The due process clauses of the United States and California Constitutions require that a party be given reasonable notice of a judicial action or proceeding. 

 

To establish personal jurisdiction, compliance with statutory procedures for service of process is essential; if a default judgment was entered against a defendant who was not served with a summons as required by statute, the judgment is void, as the court lacked jurisdiction in a fundamental sense over the party and lacked authority to enter judgment. 

 

Braugh argued she substantially complied with the service-of-process rules when she personally served Dow with the summons and complaint. She contended this provided Dow with “actual notice” of the partition case and that who served Dow is a mere technicality that did not render personal service void. 

 

The appellate court disagreed, finding this was not a “mere technicality” as Braugh would like it to hold; this is an issue of fundamental jurisdiction. By merely looking at the judgment roll, primarily Braugh’s proof of service of summons, the appellate court concluded the trial court acted without authority in entering default and default judgment against Dow. 

 

Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. 

 

As mentioned above, the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service. 

 

Here, on the face of the proof of service of summons, Braugh signed under penalty of perjury that she was “not a party to this action” and attested to having personally served Dow at the Property. 

 

It is undisputed that Braugh is a party to the action. Service did not comply with the express requirements. The intent of a statute prohibiting personal service of process by parties is to discourage fraudulent service by persons with an adversarial interest in a legal action. 

 

Accordingly, the prohibition on service by the opposing party is strictly enforced. 

Thus, when a party has served notice on the opposing party, the court lacks personal jurisdiction over the defendant. 

 

During oral argument, Braugh maintained that even if we find the judgment “facially void” due to the manner of service, that we must also determine if she “substantially complied” with the rules of service of process because strict compliance is not required.

 

She contended her personal service on Dow should be liberally construed to uphold jurisdiction because Dow was provided actual notice of the commencement of the action. 

 

The appellate court disagreed, ruling the trial court did not abuse its discretion in granting Dow’s motion to set aside the default and default judgment. On the record, the trial court did not obtain personal jurisdiction over Dow due to improper service of the summons and complaint. Dow was under no duty to act upon a defectively served summons. 

 

LESSONS:

1.         A party to the action cannot serve summons and complaint on another party.

 

2.         The court may on motion of either party after notice to the other party, set aside any void judgment or order. 

 

3.         Generally, defendants have six months from entry of judgment to move to vacate. But, if the judgment is void on its face, then the six month limit to make other motions to vacate a judgment doo not apply.

 

4.         Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. 

 

5.         A defendant is under no duty to act upon a defectively served summons. 

 

Must Property Owner in California Have Actual or Constructive Notice Before Incurring Liability?

This issue was the subject of the recent California appellate court decision in Howard v. Accor Management US, Inc. 

When Monique Howard went to shower during her hotel stay, the handheld shower head fell apart. Howard cut herself and fell. 

 

Later she sued the hotel for negligence and premises liability. 

 

The trial court granted summary judgment, and the appellate court affirmed because Howard failed to mount a triable issue of material fact on the key issue of notice and failed to establish the applicability of a venerable but inapt doctrine—res ipsa loquitur. 

 

In March 2017, Howard and her then boyfriend stayed at the Sofitel Los Angeles at Beverly Hills. Both took showers on their arrival day without incident. 

 

The next morning, they took individual showers again and went shopping. When Howard returned that afternoon, she noticed the room had been cleaned. She went to take another shower before her scheduled massage. 

 

During her deposition, Howard described what happened when she went for this third shower: “[I]t was a little after 1:00 and when I got into the shower it started spraying me in the face, and it is two shower heads. There is an overhead shower, I guess men would use, and then there is a shower that they have that is a detachable shower. As soon as I stepped in the shower and turned the water on I noticed that it was spraying me in the face, which was a little odd for me because I had took a shower earlier that day. I was -- kind surprised me, plus I had full makeup on. It was spraying me in my face. When that happened I went to take the shower off of the shower handle and that is when it just dismantled and fell apart.” 

 

Howard sued in March 2019. Her complaint asserted the broken shower head cut her hand, caused her to fall back onto her tailbone, and left her with severe injuries. 

 

Howard later amended her complaint to sue Accor Management US, Inc., the only respondent on appeal, who operated the hotel at the time of the incident. 

 

Accor moved for summary judgment, arguing Howard could not establish it had actual or constructive notice of any problem with the handheld shower head. 

 

The hotel did not contest the shower head came apart while Howard was showering. Nor did it contest a housekeeper had cleaned Howard’s room the day before and the day of the incident. 

 

Howard responded with declarations by herself and her boyfriend, and both claimed they did not notice any cracks or damage to the shower wand during their two showers before the incident. They also claimed they did not drop, hit, mishandle, tighten, damage, or break the wand during these earlier showers. The boyfriend did not use the shower wand at all—he only used the fixed overhead shower. 

 

Howard’s description of the incident in her declaration differed somewhat from the description at her deposition: She declared that for her third shower, the water sprayed her and in all directions when she turned on the faucet. She reached for the wand, and it sliced her hand, suddenly came apart, and fell to the floor. 

 

Howard’s opposition argued the hotel’s housekeeper must have broken the shower wand and failed to report this, and the hotel thus had actual knowledge of the problem its housekeeper caused, because the wand was fine for the morning shower but broken for the afternoon shower and only the housekeeper was in the room between showers. 

 

Howard supplied the declaration of her retained expert, Brad P. Avrit, to help establish the housekeeper broke the wand between showers. 

 

She also argued the doctrine of res ipsa loquitur applied and rendered summary judgment inappropriate. 

 

The trial court sided with Accor on the issue of notice and concluded Howard’s showing that the housekeeper negligently broke the shower wand was insufficient. 

 

The court also rejected the res ipsa loquitur doctrine. Regarding Avrit, the court sustained most but not all of Accor’s evidentiary objections, concluding Avrit’s declaration “is replete with inadmissible opinion evidence regarding legal conclusions. More importantly, Avrit’s declaration contains conclusions that lack foundation and which are speculative in nature.” 

 

Property owner must have actual or constructive notice of an unsafe condition before incurring liability.  Notice requirement applies to hotels on negligence and premises liability claims. 

 

Howard offered four reasons summary judgment was inappropriate: 

(1) her evidence raises triable issues regarding the hotel’s knowledge of the unsafe shower wand; 

(2) whether the hotel conducted a reasonable inspection of the wand and had sufficient time before the incident to discover its unsafe condition are other triable issues; 

(3) the doctrine of res ipsa loquitur applies; and 

(4) the trial court abused its discretion in disregarding the declaration of Howard’s expert. 

 

Howard recognized her claims require actual or constructive knowledge of an unsafe condition by the landowner. 

 

But Howard forfeited any argument about the hotel’s constructive knowledge or notice due to unreasonable inspections because she never presented this issue to the trial court, either in her opposition brief or during oral argument.  

 

There was a good reason for this omission: Howard’s theory in the trial court was the housekeeper broke the shower wand while Howard was shopping and then failed to tell anyone or do anything about it. This theory is inconsistent with a theory the wand broke at some unknown earlier time yet went undiscovered due to inadequate inspections by the housekeeper or the hotel. 

 

As for actual notice, Howard maintained on appeal, as she did at the trial court, that we impute knowledge of an unsafe condition to an employer where the employee created the condition. 

 

She argued the evidence showed the housekeeper was the only one to see and use the shower wand after it was functioning properly that morning, and, in light of hotel witnesses’ comments about how housekeepers use these wands when cleaning, the only reasonable inference is the housekeeper did something to break this wand or at least noticed its poor condition. 

 

Therefore, the court must conclude it was more likely than not Accor knew of the shower wand’s unsafe condition. 

 

Howard’s problem was nothing showed the housekeeper did anything to break the shower wand. 

 

The evidence did not show the housekeeper was required to use the wand. There was no evidence from the housekeeper, as Howard decided not to depose her. No evidence suggested this housekeeper used this wand during her cleaning that day. 

 

For example, Howard did not testify the shower walls were wet before she took her afternoon shower.

 

The hotel’s Housekeeping Standards say housekeepers are to spray bathroom fixtures with cleaning solution during cleanings; but we are not told these standards say anything about using shower wands. Housekeepers are to prepare a work order if they notice any problems with a fixture; but no work order existed for Howard’s room. 

 

While some hotel witnesses testified about housekeepers using detachable shower heads when cleaning, the testimony was not clear on when, if ever, these shower heads had to be used. One witness discussed cleanings after check outs and those for stayover guests. Howard did not address this distinction. 

 

The hotel witnesses also established the hotel’s engineering and maintenance team had inspected Howard’s room several months before the incident, and had performed a preventative maintenance check on the shower fixtures, but the team found no issue with these fixtures. 

 

There were no other reports of defective or broken shower heads at the hotel. Further, no assembly was required for the section of the shower head that broke—it arrived in one piece from the distributor/manufacturer. 

 

The evidence did not show the shower wand was broken before Howard grabbed it. When describing the incident at her deposition, Howard did not say the wand was sharp or broken then. Nor did Howard’s declaration say she was cut before the wand fell apart. 

 

On the final issue, Howard admits it was her burden to establish res ipsa loquitur. 

 

This doctrine applies when the nature of an accident compels the conclusion it probably resulted from the defendant’s negligence. 

 

Or, as the California Supreme Court explained it, “certain kinds of accidents are so likely to have been caused by the defendant’s negligence that one may fairly say ‘the thing speaks for itself.’ ” 

 

The doctrine has three requirements: (1) the accident was of a kind that ordinarily does not occur absent someone’s negligence; (2) the instrumentality of harm was within the defendant’s exclusive control; (3) the plaintiff did not voluntarily contribute to the harm. 

 

Two elements were missing here. First, as addressed above, it was not apparent hotel shower heads only fall apart due to the hotel’s negligence. 

 

Second, Howard’s deposition testimony suggested her grabbing action could have broken the wand.

 

LESSONS:

 

1.         Property owner must have actual or constructive notice of an unsafe condition before incurring liability.

 

2.         The doctrine of res ipsa loquitur applies when the nature of an accident compels the conclusion it probably resulted from the defendant’s negligence. 

 

3.         The doctrine has three requirements: (1) the accident was of a kind that ordinarily does not occur absent someone’s negligence; (2) the instrumentality of harm was within the defendant’s exclusive control; (3) the plaintiff did not voluntarily contribute to the harm.