Law Office of P. Fateh K. Sahota and P. Fateh K. Sahota for Petitioner and Appellant. Law Office Daniel A. Presher and Daniel A. Presher for Objector and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 692837)
APPEAL from an order of the Superior Court of Stanislaus County. Jack M. Jacobson, Judge. Law Office of P. Fateh K. Sahota and P. Fateh K. Sahota for Petitioner and Appellant. Law Office Daniel A. Presher and Daniel A. Presher for Objector and Respondent.
This appeal seeks review of an order made in the course of a conservatorship proceeding. Appellant appeals from the trial court's denial of her motion to set aside a prior order, which found that she failed to establish the fact of her marriage to the conservatee. She asserts the prior order was void for lack of subject matter jurisdiction because the trial court failed to follow the prescribed procedures for a proceeding to establish the fact of marriage. We conclude the trial court did not lack subject matter jurisdiction in the fundamental sense, and the prior order was not void. At most it was voidable, if entered in excess of the trial court's jurisdiction. Appellant, however, did not bring a timely motion to set aside a voidable order; she also failed to object to the procedures in the trial court or in her direct appeal from the prior order. Accordingly, we affirm the trial court's order denying the motion to set aside the order denying the fact of her marriage to the conservatee.
Some of the facts are taken from our unpublished opinion in the previous appeal in this matter, Nijjar v. Nijjar (Dec. 7, 2017, F074630).
Appellant, Parminder K. Nijjar, also known as Parminder Phagura (Parminder), petitioned to be appointed conservator of the person and estate of Sawarn Nijjar (Sawarn); she represented she was Sawarn's spouse and he suffered from dementia and was unable to care for himself. Subsequently, Sawarn's daughter, Rani Nijjar (Rani), petitioned to be appointed conservator of his person and estate. Rani agreed Sawarn suffered from dementia but asserted Parminder was not Sawarn's wife. The trial court eventually appointed Rani as conservator of the person of Sawarn, and respondent Heather Fisher, a licensed professional fiduciary, as conservator of his estate.
We refer to the parties by their first names for clarity and convenience, because some of them share a last name or have multiple last names. No disrespect is intended.
Parminder claimed she was married to Sawarn in a ceremony in India. In orders dated February 8 and March 10, 2016, the trial court ordered Parminder to provide written evidence of the solemnization of her marriage to Sawarn. If no such evidence was provided to the trial court, Rani, as conservator of Sawarn's person, was instructed to deny the marriage in writing, pursuant to Family Code section 309. In that event, Parminder was given the option to file a petition under Health and Safety Code section 103450 to judicially establish the fact, time, and place of the marriage. She was ordered to give notice of the filing of the petition to all those entitled to notice in the conservatorship proceeding at least 15 days before the trial, which was scheduled for June 13, 2016.
Rani subsequently filed a declaration stating that Parminder had failed to provide proof of her marriage to Sawarn, and therefore Rani denied that Parminder was married to Sawarn. The matter was tried to the court in June 2016. The trial court's statement of decision recited that the matter came before it for trial on Parminder's petition requesting that the trial court find her to be Sawarn's spouse. It summarized the witness testimony and other evidence presented. The statement of decision indicated that, although Parminder and other witnesses testified she and Sawarn were married in India in 1997, during cross-examination, Parminder stated they were married in 1996. The trial court's decision stated: "When questioned about the discrepancy in the date of marriage, [Parminder] turned to the Court and said, 'Do you want me to tell you the truth, or just continue to tell a pack of lies?' " After being encouraged to tell the truth, Parminder testified the parties were married in 1996, but Sawarn was not yet a United States citizen; after he became a citizen, they put a false date on the immigration papers so her immigration application would be handled more quickly. The decision indicated Parminder admitted all the witnesses who testified to a marriage in 1997 were not telling the truth.
The trial court concluded there was no competent evidence of a legal marriage between Sawarn and Parminder; consequently, Parminder failed to prove she was married to Sawarn. Accordingly, her petition to be declared Sawarn's spouse was denied. Parminder appealed that decision and we affirmed it.
On June 18, 2018, Parminder filed a motion to set aside the order denying the fact of her marriage to Sawarn. She asserted the order was void on its face due to lack of subject matter jurisdiction. The motion was heard ex parte the next day. The trial court denied the motion, "based upon facts and law reflected in the Ruling of the Court of Appeals on this issue." Parminder now appeals the denial of her motion to set aside the order denying the fact of her marriage to Sawarn.
An appeal may be taken from an order issued after an appealable judgment, including the denial of a motion to set aside the judgment. (§ 904.1, subd. (a)(2); Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 135.) Additionally, when a party brings a motion to set aside the judgment on the ground the judgment is void, the order on the motion may be appealed even if the underlying judgment was also appealable. This is because an order giving effect to a void judgment is itself void and appealable. (Residents for Adequate Water v. Redwood Valley County Water Dist. (1995) 34 Cal.App.4th 1801, 1805.)
Fisher makes a cursory argument that Parminder is estopped to argue the order denying her motion to set aside the judgment is appealable, because she asserted in a prior writ proceeding that it was not. Fisher cites Evidence Code section 623 in support of her argument: "Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it." (Evid. Code, § 623.) " 'Generally, speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.' " (People v. Stuyvesant Ins. Co. (1968) 261 Cal.App.2d 773, 784.)
Fisher has not identified anything in the record showing that she was ignorant of the true facts, that she believed Parminder's representation that the order was not appealable, or that she did any act in reliance on that representation. Further, in the absence of a confidential relationship, a representation as to a matter of law is not a basis for estoppel. (People v. Stuyvesant Ins. Co., supra, 261 Cal.App.2d at p. 784.) "It is presumed the party claiming estoppel had an equal opportunity to discover the law." (Adams v. County of Sacramento (1991) 235 Cal.App.3d 872, 883-884.) Appealability of the order is an issue of law. The law was as available to Fisher's counsel as it was to Parminder's. Consequently, estoppel does not prevent Parminder from appealing the order denying her motion to set aside the order denying the fact of her marriage.
II. Standard of Review
On appeal from the denial of a motion made pursuant to Code of Civil Procedure section 473, subdivision (d), to set aside an order on the ground it is void on its face for lack of subject matter jurisdiction, the foundational question is whether the order is absolutely void. (Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 146.) We review that question de novo. (Ibid.)
Undesignated statutory references are to the Code of Civil Procedure. --------
III. Subject Matter Jurisdiction
A. Superior court jurisdiction
Parminder moved to set aside the order denying the fact of her marriage to Sawarn pursuant to section 473, subdivision (d), on the ground the order was void on its face for lack of subject matter jurisdiction. The statute provides: "The court may, ... on motion of either party after notice to the other party, set aside any void judgment or order." (§ 473, subd. (d).) " 'It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity, may be set aside on motion at any time after its entry, by the court which rendered the judgment or made the order." (Hayashi v. Lorenz (1954) 42 Cal.2d 848, 851.)
" 'A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction "relates to the inherent authority of the court involved to deal with the case or matter before it." [Citation.] Lack of jurisdiction in this "fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." ' " (In re Andres G. (1998) 64 Cal.App.4th 476, 482.) "Because it concerns the basic power of a court to act, the parties to a case cannot confer fundamental jurisdiction upon a court by waiver, estoppel, consent, or forfeiture." (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 807.) "Familiar to all lawyers are such examples as these: A state court has no jurisdiction to determine title to land located outside its territorial borders, for the subject matter is entirely beyond its authority or power. [Citation.] A court has no jurisdiction to adjudicate upon the marital status of persons when neither is domiciled within the state. [Citations.] A court has no jurisdiction to render a personal judgment against one not personally served with process within its territorial borders .... [Citations.] A court has no jurisdiction to hear or determine a case where the type of proceeding or the amount in controversy is beyond the jurisdiction defined for that particular court by statute or constitutional provision." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.)
Parminder does not challenge the trial court's personal jurisdiction of the parties. She challenges only the trial court's subject matter jurisdiction. She contends that, pursuant to Health and Safety Code sections 103450 and 103455, a trial court has jurisdiction to determine the fact of marriage only after a party has filed a verified petition setting forth the facts necessary to make that determination. Parminder asserts the judgment roll demonstrates that she did not file such a petition. Consequently, the trial court lacked subject matter jurisdiction and the order denying the fact of marriage is void. We disagree.
Parminder, claiming to be Sawarn's spouse, sought to be appointed his conservator. The matter was commenced in the Superior Court of Stanislaus County as a conservatorship proceeding. The superior court has jurisdiction of conservatorship proceedings. (Prob. Code, § 2200.)
The superior court also has jurisdiction of family law proceedings, including those under Family Code section 309. (Fam. Code, § 200.) Family Code section 309 provides: "If either party to a marriage denies the marriage, or refuses to join in a declaration of the marriage, the other party may proceed, by action pursuant to [s]ection 103450 of the Health and Safety Code, to have the validity of the marriage determined and declared." (Fam. Code, § 309.) Rani, as conservator of the person of Sawarn, denied the marriage on his behalf. The trial court gave Parminder the option of filing a petition under Health and Safety Code section 103450 to establish the marriage.
Health and Safety Code section 103450 provides: "A verified petition may be filed by any beneficially interested person with the clerk of the superior court in and for ... the county of residence of the person whose birth or marriage it is sought to establish, ... for an order to judicially establish the fact of, and the time and place of, a birth, death, or marriage that is not registered or for which a certified copy is not obtainable." (Health & Saf. Code, § 103450, subd. (a).) Thus, the superior court also had jurisdiction of a proceeding under this section.
Parminder has not demonstrated that the superior court lacked jurisdiction of the type of action in which the challenged order was entered—either the conservatorship proceeding or the proceeding to determine the fact of marriage—because that "type of proceeding ... is beyond the jurisdiction defined for [the superior court] by statute or constitutional provision." (Abelleira v. District Court of Appeal, supra, 17 Cal.2d at p. 288.) She does not claim the Superior Court of Stanislaus County lacked subject matter jurisdiction of the proceeding because, for example, she and Sawarn were not domiciled in that county at the time the proceeding was commenced. She has not suggested that any other court or tribunal has jurisdiction of the matter in the fundamental sense. The superior court in which the issue was litigated had fundamental jurisdiction to hear this type of matter.
B. Procedural irregularities
"[J]urisdictional errors can be of two types. A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable." (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56 (Goddard).) A lack of fundamental jurisdiction is " ' " 'an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' " ' " (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339 (Kabran).) " 'Even when a court has fundamental jurisdiction, ... the Constitution, a statute, or relevant case law may constrain the court to act only in a particular manner, or subject to certain limitations.' [Citation.] We have described courts that violate procedural requirements, order relief that is unauthorized by statute or common law, or otherwise ' "fail to conduct [themselves] in the manner prescribed" ' by law as acting ' "in excess of jurisdiction." ' [Citation.] Because a court that acts in excess of jurisdiction still has 'jurisdiction over the subject matter and the parties in the fundamental sense' [citation], any such act is 'valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time' [citation]. In contrast to errors concerning a court's fundamental jurisdiction, '[e]rrors which are merely in excess of jurisdiction should be challenged directly ... and are generally not subject to collateral attack once the judgment is final ....' " (Id. at pp. 339-340.)
Most procedural errors are not jurisdictional. (Goddard, supra, 33 Cal.4th at p. 56.) Subject matter jurisdiction is the power to hear and determine a cause; it " ' "implies power to decide a question wrong as well as right." ' " (Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control (1961) 55 Cal.2d 728, 731.) A court with fundamental power to hear a case may make errors with respect to procedure, pleading, evidence, and substantive law, and most of those errors are not jurisdictional. (Goddard, at p. 56.) Even errors in mandatory procedures are not necessarily jurisdictional in the fundamental sense. (Kabran, supra, 2 Cal.5th at p. 341.)
"Nonetheless, certain procedural errors are jurisdictional. [Citations.] An error is jurisdictional ' "only where the clear purpose of the statute is to restrict or limit the power of the court to act and where the effective enforcement of such restrictions requires the use of extraordinary writs of certiorari or prohibition." ' " (Goddard, supra, 33 Cal.4th at p. 57.) Whether a procedural requirement is jurisdictional is a matter of legislative intent. (Kabran, supra, 2 Cal.5th at p. 343.) In construing a statute to determine whether the procedure or time limit it prescribes is jurisdictional, we begin with the language of the statute. (Ibid.) Relevant considerations include: whether the statute mentions jurisdiction; whether the limitation is stated in " 'unusually emphatic form,' " is reiterated several times in different ways, or asserts that no relief may be granted without compliance with the procedure or time limit; and whether there is a consequence or penalty for noncompliance. (Id. at pp. 343-344.)
Application of the rule that a failure to follow the proper procedure generally is not jurisdictional in the fundamental sense and at most results in an act in excess of jurisdiction, which is voidable rather than void, is illustrated in various cases. In Kabran, after the jury found in favor of the defendant, the plaintiff moved for a new trial based on newly discovered evidence. (Kabran, supra, 2 Cal.5th at p. 334.) The supporting affidavits and memorandum of points and authorities were not timely filed, but the defendant failed to object. (Id. at pp. 334-335.) The trial court granted the new trial motion and the defendant appealed, arguing in part that the affidavits were not timely filed under section 659a, the deadline was jurisdictional, and the belated filings were void. (Kabran, at p. 335.)
The court determined the deadline for filing supporting affidavits was not a matter of fundamental jurisdiction. (Kabran, supra, 2 Cal.5th at p. 347.) It distinguished between a lack of fundamental jurisdiction and an act in excess of jurisdiction, and concluded even mandatory procedural requirements are not necessarily jurisdictional in the fundamental sense. (Id. at p. 342.) " 'There are many time provisions, e.g., in procedural rules, that are ... mandatory; these are binding, and parties must comply with them to avoid a default or other penalty. But failure to comply does not render the proceeding void' in a fundamental sense." (Id. at p. 341.) Noncompliance with a jurisdictional requirement cannot be excused or forfeited and can be challenged at any time. (Id. at p. 342.) In contrast, "[n]oncompliance with a mandatory rule can result in invalidation of the action so long as the noncompliance is properly raised; a party can forfeit its challenge to the noncompliance by failing to object." (Ibid.)
The court noted there is a presumption that courts have jurisdiction unless it is specifically curtailed by the Legislature. (Kabran, supra, 2 Cal.5th at p. 342.) " 'While the courts are subject to reasonable statutory regulation of procedure and other matters, they will maintain their constitutional powers in order effectively to function as a separate department of government. [Citations.] Consequently an intent to defeat the exercise of the court's jurisdiction will not be supplied by implication.' " (Id. at p. 343.)
The court contrasted the language of section 659a, regarding the time period for filing supporting affidavits, with statutes governing the time period within which to bring the motion for new trial (§ 659) and the time within which the trial court must rule on the motion (§ 660), which have been held to be jurisdictional. (Kabran, supra, 2 Cal.5th at p. 342.) Section 659, subdivision (b), provided that the " 'times specified [for filing the notice of intent to move for a new trial] shall not be extended by order or stipulation.' " (Kabran, at p. 344.) Section 660 mentioned jurisdiction expressly, providing: " '[T]he power of the court to rule on a motion for a new trial shall expire 60 days from' the filing of the notice of intent or service of notice of entry of judgment. 'If such motion is not determined within said period of 60 days, ... the effect shall be a denial of the motion without further order of the court.' " (Kabran, at p. 344.) The language of section 659a, however, did not "reveal a clear legislative intent to deprive courts of the power to consider untimely filed affidavits." (Kabran, at p. 343.) It simply provided that either party " 'shall' serve and file affidavits" within a specified period. (Ibid.) It did not mention jurisdiction expressly or deny the trial court the power to grant relief after the expiration of that period. (Id. at pp. 343, 344.) "Further, unlike sections 659 and 660, section 659a contain[ed] no ' "consequence or penalty" ' for noncompliance with the affidavit filing deadlines." (Id. at p. 344.)
In light of the absence of express language in section 659a depriving the court of jurisdiction in the event of noncompliance, the presumption against depriving courts of jurisdiction, and the purposes of the statute, the court concluded the time period for filing affidavits was not jurisdictional. (Kabran, supra, 2 Cal.5th at p. 347.) The defendant could have objected in the trial court; noncompliance, in the absence of objection, did not deprive the trial court of jurisdiction to consider the affidavits. (Id. at p. 346.) Consequently, the defendant could not challenge the untimeliness of the affidavits for the first time on appeal. (Id. at p. 347.)
In Lee v. An (2008) 168 Cal.App.4th 558 (Lee), the trial court gave the plaintiffs notice of a case management conference and ordered them to serve the notice on the defendant. (Id. at p. 561.) The trial court's notice warned that failure to appear at the case management conference could result in imposition of sanctions, including striking the answer. The plaintiffs gave the defendant notice of the case management conference, but on their own form, which did not contain the warning. (Ibid.) The defendant did not appear at the case management conference, and the trial court set a further one. The plaintiffs' notice again failed to mention the possibility of imposition of sanctions for failure to appear. The defendant did not appear. (Id. at pp. 561-562.) The trial court struck defendant's answer and entered her default and a default judgment. (Id. at p. 562.) Three years later, the defendant moved to set aside the default and default judgment on the ground they were void due to lack of notice that failure to appear could result in terminating sanctions. (Ibid.) The trial court denied the motion. (Id. at p. 563.)
The defendant's motion was brought pursuant to section 473, subdivision (d), which allows a void judgment to be set aside without any time limit. (Lee, supra, 168 Cal.App.4th at p. 563.) The court distinguished between void and voidable orders. (Id. at pp. 563-564.) Void orders are those entered by a court that lacks jurisdiction in the fundamental sense, and they may be attacked at any time. (Id. at p. 563.) "But when a statute authorizes a prescribed procedure and the court acts contrary to the authority conferred, the court exceeds its jurisdiction," and the order is voidable. (Id. at p. 564.) Applicable statutes and court rules authorized the trial court to impose sanctions for failure to comply with local rules, but only after giving the party notice and an opportunity to be heard. (Ibid.) The notices were insufficient, and the trial court exceeded its authority by imposing sanctions for failure to comply with the local rules without prior notice and an opportunity to be heard. (Id. at p. 565.)
The court concluded the trial court "had fundamental jurisdiction over the parties and the subject matter, but acted in excess of its jurisdiction by imposing terminating sanctions without adequate prior notice. The resulting default and default judgment were thus voidable, not void." (Lee, supra, 168 Cal.App.4th at p. 565.) Accordingly, the defendant was not entitled to relief under section 473, subdivision (d), which applied only to void judgments. (Lee, at p. 566.) " '[A] party seeking to set aside a voidable judgment or order must act to set aside the order or judgment before the matter becomes final.' " (Id. at pp. 565-566.) The defendant had not done so and was not entitled to relief from a voidable judgment. (Id. at p. 566.)
In Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86 (Johnson), the plaintiffs obtained an order for the defendant to appear for deposition, produce documents, and pay monetary sanctions; the court warned the defendant it would entertain a motion for terminating sanctions if the defendant did not comply. (Id. at p. 90.) When the defendant failed to comply, the plaintiffs applied for and obtained an ex parte order striking the defendant's answer. (Ibid.) The trial court subsequently entered a default judgment against the defendant. (Id. at p. 91.) Twelve years later, the defendant moved to set aside the default and default judgment on the ground they were void because they resulted from a terminating sanction imposed ex parte. (Id. at p. 93.) The trial court denied the motion. (Ibid.)
On appeal, the court found the trial court had fundamental jurisdiction over both the subject matter and the parties when the default judgment was entered. (Johnson, supra, 175 Cal.App.4th at p. 98.) "By awarding terminating sanctions on an ex parte basis, the trial court at most failed to follow proper procedure." (Ibid.) Therefore, the default and default judgment were not void, but at most were voidable. (Id. at p. 99.) Accordingly, they were not subject to challenge at any time under section 473, subdivision (d). Further, the defendant's motion to set aside the default and default judgment 12 years after they were entered was untimely under section 473, subdivision (b), which imposed a six-month time limit. (Johnson, at p. 99.) The order denying the motion to set aside the default and default judgment was therefore affirmed. (Id. at p. 100.)
In Conservatorship of O'Connor (1996) 48 Cal.App.4th 1076 (O'Connor), after the death of the conservatee, the conservatee's attorney, Richard Bronson, sought to be appointed as successor conservator of the estate to prepare a final accounting and distribute the assets of the estate. (Id. at p. 1083.) His petition was granted ex parte, and Old Republic Surety Company (Old Republic) issued a bond ensuring Bronson's faithful performance of his duties. (Id. at pp. 1083-1084.) The bond, however, was not filed with the trial court. (Id. at p. 1084.) Subsequently, the administrator of the conservatee's probate estate obtained an order surcharging Bronson as successor conservator, on the ground he embezzled and converted estate property. The administrator then made a claim on the bond. (Id. at pp. 1085-1086.) Old Republic sued the administrator, seeking a declaration that the order appointing Bronson and the letters of conservatorship were void, and seeking to rescind the bond. (Id. at p. 1086.) The trial court declared the order and letters void and ordered the bond rescinded. (Ibid.)
On appeal, the court noted that the trial court failed to distinguish between actions by a court that were void for lack of subject matter jurisdiction and actions that were in excess of the court's jurisdiction. (O'Connor, supra, 48 Cal.App.4th at p. 1087.) It noted that "a court acts in excess of jurisdiction ' "where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no 'jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites." ' " (Id. at pp. 1087-1088.) Action that is in excess of the jurisdiction of a court that has jurisdiction in the fundamental sense is not void, but merely voidable. (Id. at p. 1088.) "In contrast to cases involving other types of jurisdictional defects, a party may be precluded from challenging action in excess of a court's jurisdiction when the circumstances warrant applying principles of estoppel, disfavor of collateral attack or res judicata." (Ibid.)
One of the trial court's bases for its determination the orders and letters were issued without jurisdiction was that the trial court failed to follow mandatory statutory procedures in appointing Bronson successor conservator. (O'Connor, supra, 48 Cal.App.4th at p. 1088.) The order was issued without notice, a hearing, or an investigation; the letters were issued without a bond. (Id. at p. 1090.) The court concluded these failures to comply with statutory procedures did not render the order and letters void. (Ibid.) "When ' "the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court's power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. [Citations.] Whether he shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy. A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when '[t]o hold otherwise would permit the parties to trifle with the courts.' " ' " (Id. at p. 1092.) The court concluded Old Republic was estopped to challenge the validity of Bronson's appointment as successor conservator, because it manifested its consent to the procedure by which he was appointed. It issued the surety bond without reviewing Bronson's petition; it placed the original bond in its file and issued a duplicate original, without securing file-stamped copies of the bond, which was its usual policy; and it declined to participate in the surcharge proceeding that established Bronson's liability. (Ibid.) It also kept the bond premium even after it learned the original bond had not been filed with the court. (Id. at p. 1094, fn. 15.) Consequently, Old Republic was "precluded by principles of estoppel and disfavor of collateral attacks from challenging the validity" of the order and letters. (Id. at p. 1096.)
Parminder contends the order denying the fact of her marriage is void for lack of subject matter jurisdiction because the proper procedures were not followed in obtaining the order. She contends she did not file a petition for a determination of the fact, time and place of the marriage (Health & Saf. Code, § 103450), there was no verified petition setting forth the facts on which the determination was to be based (Health & Saf. Code, § 103455), and the hearing was not set in accordance with the applicable time provisions (Health & Saf. Code, § 103465).
The language of the statutes is not jurisdictional. Health and Safety Code section 103450 provides in pertinent part: "A verified petition may be filed by any beneficially interested person with the clerk of the superior court in and for ... the county of residence of the person whose birth or marriage it is sought to establish, ... for an order to judicially establish the fact of, and the time and place of, a ... marriage that is not registered or for which a certified copy is not obtainable." (Health & Saf. Code, § 103450, subd. (a).) A verified petition "may" be filed; this provision is not phrased in mandatory or jurisdictional language.
"The petition shall be verified and shall contain all the facts necessary to enable the court to determine the fact of and the time and place of the ... marriage upon the proofs adduced in behalf of the petitioner at the hearing." (Health & Saf. Code, § 103455.) If a petition is filed, it "shall" be verified and "shall" contain the necessary facts. (Ibid.) Although the language is mandatory, it does not expressly restrict the power of the court to hear and determine the issue in the absence of a verified petition containing the relevant facts; it also contains no consequence or penalty for a failure to comply. Additionally, the determination of the issue is not made on the facts contained in the petition alone, but "upon the proofs adduced ... at the hearing." (Ibid.)
"Upon the filing of the petition a hearing shall be fixed by the clerk and at the convenience of the court set at a time not less than five nor more than 10 days after the filing of the petition. The hearing may be held in chambers. The court, for good cause, may continue the hearing beyond the 10-day period." (Health & Saf. Code, § 103465.) Parminder complains that the hearing was not set "[u]pon the filing of the petition," but was already scheduled when she was given the option of filing a petition. The statute does not expressly restrict the power of the court to schedule or to hear the matter only at the times specified. It provides no penalty or consequence for noncompliance. It permits the matter to be heard in chambers, suggesting the procedure was not intended to be strictly formal. Further, the trial court is expressly permitted to continue the hearing beyond the specified period for good cause.
The language of these statutes does not deprive the trial court of the power to hear and determine the matter if the statutory procedures are not strictly followed. There is nothing expressly jurisdictional in these provisions. The language does not indicate the determination of the fact of marriage may not be made in the absence of strict compliance with the prescribed procedures. We conclude the challenged procedures are not jurisdictional requirements in the fundamental sense.
As in Lee, Johnson, and O'Connor, the trial court here had fundamental jurisdiction of the parties and the subject matter. As in those cases, Parminder's claim of error is that the trial court failed to follow the proper procedures prior to entering the order. Even if the trial court acted in excess of jurisdiction in doing so, however, the order was at most voidable, rather than void. (Johnson, supra, 175 Cal.App.4th at pp. 98, 99.) A voidable order must be challenged before it becomes final, or within the six-month time period for filing a motion for relief under section 473, subdivision (b). (Johnson, at p. 99; Lee, supra, 168 Cal.App.4th at pp. 565-566.) Further, a party may be precluded from challenging a voidable order, made in excess of a court's jurisdiction, when the circumstances warrant applying principles of estoppel, disfavor of collateral attack, or res judicata. (O'Connor, supra, 48 Cal.App.4th at p. 1088.)
The trial court expressly allowed Parminder to file a petition to establish the fact of her marriage to Sawarn under Health and Safety Code section 103450, but she declined to do so. The trial court nonetheless set the matter for trial, presumably because the outcome affected its determination of conservatorship matters. Parminder had notice of the trial date and the issue to be tried. She appeared at trial, was represented by counsel, and fully participated. She presented witness testimony and documentary evidence.
Parminder did not object to the procedures followed by the trial court, including proceeding with the trial without the filing of a verified petition. The order denying the fact of marriage was entered August 30, 2016. Parminder first raised her claim of lack of subject matter jurisdiction, based on alleged procedural flaws, in her June 18, 2018 motion to set aside the order denying the fact of marriage. She did not file her motion to set aside the order within the six-month period after its entry, the statutory period applicable to orders that are not void. She concedes she did not raise the issue in her prior direct appeal from the order denying the fact of marriage. Our decision in the prior appeal was issued on December 7, 2017, and was not further reviewed. (Nijjar v. Nijjar, supra, F074630.) Thus, Parminder did not challenge the order on the basis of the alleged procedural shortcomings prior to the finality of that order. Parminder's motion was not timely filed as a challenge to a voidable order.
Additionally, Parminder acquiesced in the procedures used by the trial court. She did not object but participated fully in the proceedings. The trial court invited her to file a petition to place the issue before the court in compliance with the statutes, but she did not. Despite the knowledge that she had not filed such a petition, Parminder failed to object to proceeding with the trial in the absence of a petition. It would be inequitable and permit Parminder to " ' " 'trifle with the courts' " ' " (O'Connor, supra, 48 Cal.App.4th at p. 1092) by allowing her to participate in the trial without objection, lose, then raise a challenge to the order based on her own failure to file a petition to commence the proceedings. Consequently, the circumstances warrant application of principles of estoppel, disfavor of collateral attack, and res judicata to preclude Parminder from challenging the trial court's action.
We conclude Parminder has not established any fundamental jurisdictional error. To the extent the challenged actions may have been in excess of the trial court's jurisdiction, they were not timely challenged.
The order denying Parminder's motion to set aside the order denying the fact of her marriage to Sawarn is affirmed. Fisher is entitled to her costs on appeal.
HILL, P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________