Petition for Writ of Certiorari — Jozlyn Thomas, Petitioner v. James Scott Blevins

Supreme Court, U.S.

FILED

SEP 2 1 2020

OFFICE OF THE CLERK

No.

In The

Supreme Court of tfje ®ntteii States

Jozlyn Thomas,

Petitioner,

v.

James Scott Blevins,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of California

PETITION FOR A WRIT OF CERTIORARI

a

V

Jozlyn Thomas

10 Belem Street

Punta Gorda, Florida 33983

(941) 456-4000

^(^IfvED

SEP 2 9 2020

OFFICE OF THE CUERK

supreme couraftj.s.

1

I. QUESTION PRESENTED

Whether the Fifth and Fourteenth Amendments to

the'United States Constitution serves to void the Order-of

the trial court which approved and settled the amended

account and report of trustee of a family trust as well as

approving the agreement and distribution of the! trust

estate between the trustee and a beneficiary where

Petitioner, as a beneficiary of the trust, was not served with

required notices of the litigation.

2

PRIOR LITIGATION

List of Parties'-

Indicated on Cover Page.

List of Proceedings:

1.

Stanislaus County Superior Court

Case No. 428536

NOTICE OF PETITION AND PETITION TO

REOPEN ESTATE AND VACATE AND SET ASIDE

VOID ORDER APPROVING AND SETTLING

AMENDED ACCOUNT AND REPORT OF

TRUSTEE; ORDER APPROVING AGREEMENT

BETWEEN TRUSTEE AND DAWN MORIN;

ORDER APPROVING DISTRIBUTION PLAN AND

A BLOWING PAYMENT OF TRUSTEE’S FEES.

Date of Entry of Ruling: October 1, 2018

2.

California Fifth District Court of Appeal

Case No. F078333

APPEAL FROM A FINAL ORDER DENYING

APPELLANT’S

MOTION TO VACATE AND

SET ASIDE FINAL RULING THE

SUPERIOR

COURT OF

CALIFORNIA,

COUNTY OF

STANISLAUS

Date of Entry of Ruling: February 6, 2020

j

3.

California Supreme Court

Case No. S261303

3

PRTITION FOR REVIEW

Date of Entry of Ruling: April 22, 2020

4

TABLE OF CONTENTS

4

Question Presented.........................................

1

Prior Litigation................................................. 2-3

Table of Content s.............................................. 4-5

Table of Authorities..........................................

5

Petition for Writ of Certiorari........................

8

Statement of Jurisdiction................................

8

Necessity for Review......................................... 8-9

U.S. Constitutional Provisions and

California State Statutes................................. 7-12

12

Statement of Facts............................................

a. Procedural Facts................................... 12-14

14

b. Substantive Facts.................................

22

Argument...........................................................

a. Violation of the Fifth and Fourteenth

Due Process Clause Voids All

Succeeding Court Determinations,

Decisions and Orders........................... 22-27

b. The Appellate Court was Mistaken

When it Found, in Equity, That

Petitioner should Not be Allowed to

Set the Trial Court Decision Aside

Because (l) Subsequent to Discovery

of the Trial Court Case, She Impliedly

Accepted Trust Disbursement Funds

and, Further, (2) That Reopening the

Case in the Trial Court Setting x4side

Its Order Approving the Settlement

Agreement Would Impair Another

Person’s Substantial Interest of

Reliance on the Judgment.................... 28-29

5

Conclusion

29

APPENDICES

Appendix A.

Appendix B.

Appendix C.

Appendix D

Appendix E,

Appendix F.

Appendix G

•v

la

.....2a-23a

,...24a-61a

,...62a-82a

,...83a-85a

..86a- 102a

103a-1.14a

6

TABLE OF AUTHORITIES

Cases:

County ofSan Diego v. Gorham (2010)

186 Cal.App.4th 1215

8, 24, 25, 26, 28, 29, 30

Garamendi v. Mission Ins. Co. (1993)

15 Cal. App. 4th 1277, 1289,

19 Cal. Rptr. 2d 190..............................

30

Keith G. v. Suzanne H. (1998)

62 Cal.App.4th 853, 862, 72 Cal.Rptr.2d 525

30

Rockefeller Technology Investments

(Asia) VII v. Changzhou SinoType

Technology Co.. Ltd. (2018)

24 Cal.App.5th 115; 233 Cal.Rptr.3d 814

25

Trackman v. Kenney

187 Cal.App.4th 175 (2010)

28

Constitutions:

United States Constitution

Amendment V......................

1, 9

United States Constitution

Amendment XIV..................

1, 9, 10

Statutes Federal:

-r.

28 U.S.C. § 1257

8

7

Statutes State:

California Code of Civil Procedure § 473...

California Code of Civil Procedure § 473.5:.

9, 10, 11, 12

.......... 13, 14

Rules:

U.S. Supreme Court Rules of Court,

Rule 11................................................

8

Other Sources:

11 Witkin, Summary of Cal. Law

(9th ed. 1990) Equity, § 8, p. 684.)

29

8

I. PETITION FOR WRIT OF CERTIORARI

Jozlyn Thomas respectfully petitions for a writ of

certiorari to review the decision of the California Supreme

Court of to deny Ms. Thomas’ Appeals for the California

Fifth District Court of Appeals in this case.

II. STATEMENT OF JURISDICTION

Ms. Thomas Petition for Review to the California

Supreme Court was denied on April 22, 2020. Ms. Thomas

invokes this Court's jurisdiction under 28 U.S.C. § 1257

and under the United States Supreme Court Rules of

Court, Rule 11, having timely filed this Petition for a Writ

of Certiorari within extended time of one hundred fifty

days of the California Supreme Court's ruling.

III. NECESSITY FOR REVIEW

A grant of review preventing the demise of this

pending petition will permit ultimate review of issues by

the California Supreme Court necessary to settle

important questions of interplay between state statutory

law and federal constitutional law. A ruling by this court

may help to determine the required burdens of law and fact

necessary to prevail in cases where the state statutory law

is in conflict with the Constitution, more specifically, the

Fifth and Fourteenth Amendments to the Constitution.

The Appellate Court extensively reviewed the application

of County ofSan Diego v. Gorham (2010) [186 Cal.App.4th

1215] (“Gorham”) x4pp. B at 2a which discussed this issue,

and found that the law expressed by the Gorham court had

continued general application, but distinguished itself

from the instant case. App. B at 18a This Petition

9

specifically seeks a ruling that the impact of the Due

Process Clause of the Fourteenth Amendment cannot be

inhibited b}' a state statute of limitations.

IV. U.S. CONSTITUTIONAL PROVISIONS AND

CALIFORNIA STATE STATUTES

United States Constitution, Amendment V:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offense to be put twice in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

United States Constitution, Amendment XIV section V

Section 1.

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States;

nor shall any state deprive any person of life, liberty, or

property, with-out due process of law; nor deny to any

person within its jurisdiction the equal protection of the

10

laws.

California Code of Civil Procedure § 473'

473.

(a)

(b)

(1)

The court may, in furtherance of justice, and

on any terms as may be proper, allow a party

to amend any pleading or proceeding by

adding or striking out the name of any party,

or by correcting a mistake in the name of a

party, or a mistake in any other respect! and

may, upon like terms, enlarge the time for

answer or demurrer. The court may likewise,

in its discretion, after notice to the adverse

party, allow, upon any terms as may be just,

an amendment to any pleading or proceeding

in other particulars! and may upon like terms

allow an answer to be made after the time

limited by this code.

(2)

When it appears to the satisfaction of the

court that the amendment renders it

necessary, the court may postpone the trial,

and. may, when the postponement will by the

amendment be rendered necessary, require,

as a condition to the amendment, the

payment to the adverse party of any costs as

may be just.

The court may, upon any terms as may be just

relieve a party or his or her legal representative

11

from a judgment, dismissal, order, or other

proceeding taken against him or her through his or

her mistake, inadvertence, surprise, or excusable

neglect. Application for this relief shall be

accompanied by a copy of the answer or other

pleading proposed to be filed therein, otherwise the

application shall not be granted, and shall be made

within a reasonable time, in no case exceeding six

months, after the judgment, dismissal, order, or

proceeding was taken However, in the case of a

judgment, dismissal, order, or other proceeding

determining the ownership or right to possession of

real or personal property, without extending the sixmonth period, when a notice in writing is personally

served within the State of California both upon the

party against whom the judgment, dismissal, order,

or other proceeding has been taken, and upon his or

her attorney of record, if any, notifying that party

and his or her attorney of record, if any, that the

order, judgment, dismissal, or other proceeding was

taken against him or her and that any rights the

party has to apply for relief under the provisions of

Section 473 of the Code of Civil Procedure shall

expire 90 days after service of the notice, then the

application shall be made within 90 days after

service of the notice upon the defaulting party or his

or her attorney of record, if any, whichever service

shall be later. No affidavit or declaration of merits

shall be required of the moving party.

Notwithstanding any other requirements of this

section, the court shall, whenever an application for

relief is made no more than six months after entry

of judgment, is in proper

12

(c)

(1)

(2)

(d)

Whenever the court grants relief from a

default, default judgment, or dismissal based

on any of the provisions of this section, the

court may do any of the following:

(A)

Impose a penalty of no greater than one

thousand dollars ($1,000) upon an

offending attorney or party.

(B)

Direct that an offending attorney pay

an amount no greater than one

thousand dollars ($1,000) to the State

Bar Client Security Fund.

(C)

Grant other relief as is appropriate.

However, where the court grants relief from a

default or default judgment pursuant to this

section based upon the affidavit of the

defaulting party’s attorney attesting to the

attorney’s mistake, inadvertence, surprise, or

neglect, the relief shall not be made

conditional upon the attorney’s payment of

compensatory legal fees or costs or monetary

penalties imposed by the court or upon

compliance with other sanctions ordered by

the court.

The court may, upon motion of the injured party, or

its own motion, correct clerical mistakes in its

judgment or orders as entered, so as to conform to

the judgment or order directed, and may, on motion

13

of either party after notice to the other party, set

aside any void judgment or order.

California Code of Civil Procedure § 473.5;

473.5.

(a)

When service of a summons has not resulted in

actual notice to a party in time to defend the action

and a default or default judgment has been entered

against him or her in the action, he or she may serve

and file a notice of motion to set aside the default or

default judgment and for leave to defend the action.

The notice of motion shall be served and filed within

a reasonable time, but in no event exceeding the

earlier oh (i) two years after entry7 of a default

judgment against him or her; or (ii) 180 days after

service on him or her of a written notice that the

default or default judgment has been entered.

(b)

A notice of motion to set aside a default or default

judgment and for leave to defend the action shall

designate as the time for making the motion a date

prescribed by7 subdivision (b) of Section 1005, and it

shall be accompanied by an affidavit showing under

oath that the party’s lack of actual notice in time to

defend the action was not caused by his or her

avoidance of service or inexcusable neglect. The

party shall serve and file with the notice a copy of

the answer, motion, or other pleading proposed to be

filed in the action.

(c)

Upon a finding by the court that the motion was

made within the period permitted by subdivision (a)

14

and that his or her lack of actual notice in time to

defend the action was not caused by his or her

avoidance of service or inexcusable neglect, it may

set aside the default or default judgment on

whatever terms as may be just and allow the party

to defend the action.

V. STATEMENT OF FACTS

a.

Procedural Facts-

January 18, 2002: Giles Revocable Trust executed by

Charles Giles and Bobette (Blevins)

Giles. App. B at 2a - 10a.

April 3, 2003:

Charles Giles’ dies.

Dec.31, 2004:

Bobette Giles, dies.

July 24, 2007:

Dawn Morin, a 40% beneficiary of the

Family and Marital Trusts, filed a

Petition for Declaratory Relief in the

Federal Court which was later

dismissed for lack of subject matter

jurisdiction.

April 8, 2008;

Dawn Morin files the initial (“safe

harbor”) Petition for Declaratory

Relief with the Stanislaus County

Superior Court.

April 10, 2008:

Trustee Blevins filed a Petition to

Approve and Confirm Account and

Report of Trustee; Approval of

15

Proposed Distribution and Payment of

Trustee's Fees; Consent of Trustee of

Beneficiaries' Trust

May 13, 2008:

Pursuant to a stipulation between

Blevins and Morin, tile Court ordered

Dawn Morin’s case consolidated with

Trustee Blevin’s case.

June 11, 2008:

Dawn Morin filed the Petition to

Compel Performance of Respondent's

Duties as Trustee or in the

Alternative Remove the Trustee

Pursuant to Probate Code §§ 17200

and 16420

March 2, 2009:

At the Trial Settlement Conference of

the consolidated cases, the parties

entered into a settlement agreement

and the Court issued its Minute Order

Incorporating

the

settlement

agreement pursuant thereto.

March 25, 2009:

James Scott Blevins as Trustee to The

Administrative Trust, The Survivor’s

Trust, The Family Trust and The

Marital Trust filed the Trustee’s

Amended Petition.

April 29, 2009:

Petitioner Dawn Morin filed a Request

for Dismissal with prejudice of her

case.

16

May 5, 2009:

The Court issued an Order pursuant

to the settlement agreement which

was entered on May 6, 2009.

May 6, 2009:

Petitioner Dawn Morin filed a Notice

of Entry of Dismissal and Proof of

Service.

March 26, 2018:

Appellant filed her Petition to Vacate

and Set Aside the May 5, 2009, Order.

May 4, 2018:

Opposition to Appellant’s Petition to

Vacate and Set Aside filed.

Nov. 1, 2018:

Appellant filed Notice of Appeal.

February 6, 2020: California’s Fifth District Court of

Appeals entered its Opinion.

March 17, 2020:

Filed Petition for Review with

California Supreme Court,

April 22, 2020:

California Supreme Court entered its

Denial. App. B at 2a - 10a

b.

Substantive Facts:

Petitioner Jozlyn Thomas (hereafter “Jozlyn” or

“Petitioner”) was born on June 20, 2000. On or about 2006

Jozlyn was constructively abandoned in Wisconsin by her

parents caused by their excessive drug use. In June 2006

when Jozlyn was 6 years old, the Racine County

(Wisconsin) Human Services, took custody of Jozlyn. App.

B at 2a — 10a

17

In that same year, Jozlyn’s maternal grandparents,

Daniel and Mary Thomas, stepped forward and filed for

guardianship of the person and the estate of Jozlyn.

Guardianship was granted by the Wisconsin Court, and

until June 20, 2018, Dan and Mary Thomas raised, Jozlyn

until, on that date, she reached the age of majority.

On January 18, 2002, Charles L. Giles, Jozlyn’s

paternal grandfather and Bobette Giles, Jozlyn’s stepgrandmother created a revocable family trust entitled

Giles Revocable Trust, (hereafter “Trust”). At the time,

Charles had two sons from a former marriage; Charles W.

Giles (deceased) and Joseph Giles (Jozlyn’s father). Bobette

had five (5) children from a former marriage; James Scott

Blevins, William Blevins, Brent Blevins, Bryan Blevins

and Kelly Bergman. Charles and Bobette were the initial

trustees of the Trust created as a revocable inter vivos

trust. Bobette's son, James, was designated as the

successor trustee upon the death of the trustors, Charles

and Bobette.

The Trust specifically provided for some of Charles

L. Giles’ grandchildren They were Charles W. Giles, Jr.,

Anthony L. Giles, Michael Giles and Jozlyn.

Generally, the Trust assets, valued in the millions of

dollars, were supposed to be placed into three different sub­

trusts upon the death of the first spouse. It was Charles

who died first on April 2, 2003.

Upon Charles’ death a marital share trust was

supposed to be created and funded to the extent of the

federal marital estate tax exemption amount in order to

reduce and/or eliminate taxes at the time of the surviving

18

spouse's death. Second, a family share trust was to be

created, which would hold the "community property share"

of the deceased spouse as well as the balance of that

spouse's separate property (if any). Third, a "surviving

spouse" trust was supposed to be created to hold the

surviving spouse's share of the community property as well

as that spouse's separate property (if any). The "surviving

spouse" was to maintain control over all the "assets" in the

surviving spouse trust and upon his or her death, those

assets were to be equally divided between the surviving

spouse's beneficiaries.

Trustor Charles died first, and this is what was

supposed to happen but did not:

Immediately upon Charles’ death, Stoney Dahlberg,

a granddaughter of Charles L. Giles and daughter of

Charles W. Giles, was to receive $1,000. Dawn Morin, who

Charles L. Giles treated as a daughter, but who was not,

was to receive $25,000, and "each living grandchild",

including Jozlyn, was to receive $25,000.

Upon Bobette's death on December 31, 2004, the

following beneficiaries inheriting the balance of the marital

share and family share sub-trusts were: Joseph Giles

($50,000 conditional upon his refraining from the use of

illicit drugs): 10% to the Boys & Girls Club of Manteca,

10% to St. Vincent de Paul's; and 10% to "each living

grandchild". There were four (4) at the time of Bobette's

death including Jozlyn. The "remainder" of the marital

share and family share sub-trusts were left to Dawn Morin.

Thus, Jozlyn was to inherit 10% of the remaining value of

the marital share and family share sub-trusts, and Dawn

19

Morin would receive about 40% of the assets left in those

two sub-trusts.

Janies Blevins, the successor trustee failed to

administer the Trust until, finally, in June 2008, more than

four (4) years after Bobette's death. Dawn Morin filed a

declaratory relief action in Federal Court to secure a.

decision that her petition would not be deemed a “contest"

of the trust's provisions which would invoke the "no contest

clause" of the Trust. This federal action was dismissed.

Dawn Morin then filed a petition seeking "information and

an accounting" from James Blevins, the successor trustee.

This petition also alleged that James Blevins was

improperly attempting to sell trust property to his brother

(another of Bobette's beneficiaries) at an inappropriate

discount. Additionally, there were questions as to the delay

in funding the sub-trusts, as well as questions concerning

some transactions Bobette had undertaken during her

lifetime (with regard to inappropriately distributing Trust

asset money to her children), and the allocation to

Respondent James Blevins of shares of stock in a trucking

company, Mountain Valley Express (“MVE”) owned by the

Trust.

On April 10, 2008, trustee Blevins filed a “Petition

to Approve and Confirm Account and Report of Trustee;

Approval of Proposed Distribution and Payment of

Trustee's Fees; Consent of Trustee of Beneficiaries' Trust.”

On June 11, 2008, Dawn Morin filed a “Petition to

Compel Performance of Respondent's Duties'as Trustee or

In the Alternative Remove the Trustee Pursuant to

Probate Code §§ 17200 arid 16420.”

20

James Blevins as the trustee of the Trust objected to

Dawn Morin's petition, offering “explanations” for each of

the delayed but then challenged actions. After settlement

negotiations, the parties reached an agreement in March

2009. Thereafter, on March 25, 2009, James filed an

amended petition seeking approval of a distribution plan

pursuant to which Dawn Morin received slightly less than

her designated 40% of the two sub-trusts. Notably,

pursuant to the plan, Petitioner also received less than 10%

of the sub-trusts. App. B at 2a — 11a

On April 10, 2008, trustee James Blevins filed his

verified “Petition to xApprove and Confirm Account and

Report of the Trustee! Approval of Proposed Distribution

and Payment of Trustee’s Fees! Consent of Trustee of

Beneficiaries’ Trust [Probate Code § 17200]”. (Hereafter

“Respondent’s Petition to Approve. . .”) App. F

On March 25, 2009, trustee Blevins filed a verified

“Amended Petition to Approve and Confirm Account and

Report of the Trustee! Petition to Approve Agreement

Between Trustee and Dawn Morin! Approval of

Distribution Plan and Payment of Trustee’s Fees! [Probate

Code § 17200]”. (“Respondent’s Amended Petition to

Approve. . .”) App. G at 88a.

It is important to note that Trustee Blevins declares

on page 3, at % 4., lines 2-10 (App. F at 88a) of Respondent’s

Petition to Approve. .. and again on page 3, at % 4., lines 19 of Respondent’s Amended Petition to Approve. . ., that

$25,000.00 had already been distributed to Jozlyn Thomas.

App. G at 105a

This allegation was patently untrue, and

Respondent admits the same when in his “Declaration of

21

James Scott Blevins in Support of Opposition to Petition to

Reopen Estate Administration and to Vacate and Set Aside

Order Approving and Settling Amended Account and

Report of Trustee and Dawn Morin; Order Approving

Agreement Between Trustee and Dawn Morin; Order

Approving Distribution Plan and Allowing Payment of

Trustee's Fees” he declares under penalty of perjury that

the check sent to Dan and Mary Thomas as guardians of

the estate of Jozlyn Thomas was part of the distribution

required after Charles L. Giles’ death. Yet, in his verified

April 10, 2008 petition and his March 25, 2009, amended

petition he declared to the court that this amount had

already been paid.

It is further alleged in the same documents,

Respondent’s Verified Petition on p. 4, *[[ 4, at lines 14-15,

and again in Respondent’s Amended Verified Petition on

p. 4, U 4, at lines 6-7, the Respondent declares:

"At all time herein relevant, the above

beneficiaries are adults. Below is a list

of all beneficiaries and interested

persons who are at all times herein

mentioned

adults,

and

their

addresses: . . ." (Emphasis added.)

App. F at 89a and App. G at 106a.

He then goes on to list the names and addresses of

a group of beneficiaries/interested persons including

Jozlyn herein as:

Jozlyn Thomas

25030 Sandhill Blvd., #4b2

Punta Gorda, FL 33983

22

This was not her address. The address as written is

a vacant lot filled with brush and weeds. Further, the

allegation that all the beneficiaries were adults was also

false. At the time Respondent Trustee Blevins filed the

petition Jozlyn was only 6 years old and was only 8 years

old when Respondent’s Verified Amended Petition was

filed.

Respondent trustee Blevins actually knew both of

the above allegations were false, yet, he was willing to lie

and misrepresent facts to the court in order to push the

settlement agreement through to allow the judge to

approve the settlement agreement between the

Respondent and Dawn Morin. It seems likely the trial court

would not have approved the settlement agreement but for

the lies.

On April 29, 2009, pursuant to the settlement

agreement, Dawn Morin dismissed her petition for

“information and an accounting” with prejudice.

Jozlyn did not receive notice of this litigation. The

trial court found that service on Jozlyn was made by mail

to two "incorrect" addresses. Respondent mailed numerous

notices to Petitioner at the following two addresses^ 25030

Sandhill Boulevard, #4b2, Punta Gorda, Florida 33983 and

25050 Sandhill Boulevard, #4b2, Punta Gorda, Florida

33983. Most were sent to the 25030 address which was a

vacant lot. However, two notices were mailed to the 25050

address at which Jozlyn and her parents resided for a short

period of time, June and July 2003, when Jozlyn was three

(3) years old.

The trial court herein in its final ruling on Jozlyn’s

motion to vacate and set aside argued that the various

23

services of process at the 25050 address were “actually

correct”. Technically the trial court was correct in that in

June and July 2003 when Jozlyn was three years old, she

lived with her parents, who later separated.

It was unreasonable for Dawn Morin, the original

petitioner and James Scott Blevins, the Trustee, to assume

that the six year old Jozlyn still resided at the 25050

address when (l) the petitioner, Dawn Morin, and the

trustee James Scott Blevins, knew that Jozlyn’s father,

Joseph Giles, was housed in the Florida state prison

system, and he was served while in prison. He knew the

correct address for Jozlyn; all they had to do was ask; (2)

they should have served Joseph on behalf of Jozlyn if they

had no knowledge of the Wisconsin guardianship; and (3)

they served Jozlyn at two different addresses. (Basic

reasoning would indicate that they had to know that one of

the addresses was wrong.) This should have prompted

further diligence on the part of Dawn Morin and James

Scott Blevins’ to exert further effort (such as asking

Jozlyn’s father for her address) to ascertain Jozlyn’s

accurate address. They did not do this. Instead, they

continued to serve Jozlyn at the wrong address(es) having

the impact of preventing Jozlyn from asserting her rights

in the trial court proceedings.

As a result, neither Jozlyn nor her grandparents/

guardians had actual knowledge or legal notice of the

existence of the Trust, and it was not until 2009 when the

wife of the Trustee, Dena Blevins, with very little trouble

finding the number, telephoned the grandparents/

guardians did they learn that the Trust, but not Dawn

Morin’s case, existed and Jozlyn was a beneficiary entitled

to distribution of a portion of its assets.

24

Jozlyn turned 18 on June 20, 2018.

VI. ARGUMENT

On April 22, 2020, the California Supreme Court

denied Petitioner’s Petition for Review without comment.

By implication its denial accepted California’s Fifth

District Court of Appeal’s decision to deny Petitioner’s

challenge to the Stanislaus County’s Superior Court’s

denial of Petitioner’s Petition to Vacate and Reopen the

Administration of the Giles Family Trust and approved the

settlement agreement between beneficiary Dawn Morin

and the trustee of the Giles Family Trust. Because, of the

implication by the California that the Fifth District Court

of Appeals was correct, this discussion restricts itself to

whether the Fifth District decided Petitioner’s Petition

correctly

a.

Violation of the Fifth and Fourteenth Due

Process Clause Voids All Succeeding Court

Determinations, Decisions and Orders.

In its Opinion, the Appellate Court first discussed

CCP §473d and §473.5 which places a time limit of two (2)

years within which a movant must move to set aside a void

judgment. (Please see Opinion attached as Exhibit A at pp.

10 - 17.) It discussed the exceptions to the two year limit

rule and how the instant case fails to meet the

requirements of the discussed exception(s). The Appellate

Court further discussed whether extrinsic fraud existed.

(Please see Opinion attached as Exhibit A at pp. 13-17.)

The Appellate Court found that (l) extrinsic fraud was not

present, and (2) the Motion to Vacate was not timely.

25

Without admitting the legal validity of the Appellate

Court findings on these two issues, this petition

respectfully’- challenges the Appellate Court’s application

and ruling found in the case of County of San Diego v.

Gorham (2010) [186 Cal.App.4th 1215] (“ Gorham”). (Please

see Opinion attached as Exhibit A at pp. 17-22.)

Petitioner in her Opening Brief and Reply filed with

the Appellate Court argued that the Due Process Clause of

the Constitution restricts state statutory limitations when

an interested party was not served with process. (Please

see Opening Brief at pp. 12-20.) Petitioner argued that

complete failure of service on an interested party rendered

the ensuing (default) judgment void as opposed to merely

“voidable”. Petitioner cited County of San Diego v. Gorham

(2010) [186 Cal.App.4th 1215] and Rockefeller Technology

Investments (Asia) \'IIv. Changzhou SinoType Technology

Co., Ltd. (2018) [24 Cal.App.5th 115; 233 Cal.Rptr.3d 814]

(Reversed on separate issues.)

However, the Appellate Court addressed County of

San Diego v. Gorham, supra, in depth and found that

though the law expressed in Gorham to be current, Gorham

was distinguishable from the instant case finding that the

false proof of service at issue in Gorham was fraudulent

and though the proof of service in the instant case was

false, there had been no showing that the falsity was

fraudulent. (Please see Opinion attached hereto as Exhibit

A at pp. 17 - 22.)

The Appellate Court premised its ruling denying

Petitioner’s appeal on its interpretation of Gorham, supra,

that, as interpreted, required the element of fraud to be

26

present, to allow an appellate court to vacate a judgment

based on lack of personal jurisdiction. The Appellate Court

stated:

“In essence, Gorham concluded that where a

fraudulent return of service results in a complete failure of

service of process on the defendant whose rights were at

stake, there is a fundamental lack of jurisdiction over that

party and any resulting order or judgment against him or

her is void and may be set aside at any time.'’ (Please see

Opinion attached as Exhibit A, at p. 18.) (Emphasis added.)

In Gorham, it was shown that the process server

falsified the proof of service and that the petitioner therein

had been in prison at the time the process server claimed

to have served him.

However, to find that fraud is a condition precedent

to adjudicating that a judgment is void is a misreading of

Gorham.

The facts in Gorham show that a paternity and child

support summons and complaint were allegedly personalty

served on Gorham in 1998 at an address in San Diego. A

default judgment was entered against him, and he was

ordered to pay monthly child support, plus arrearages. In

2002, a County Department of Child Support Services

worker informed Gorham, of the existence of the default

judgment. Later, Gorham discovered that the process

server had falsified the proof of service of summons and

complaint because Gorham had been incarcerated on the

date of the purported service. Gorham moved to set aside

the 1998 default judgment. The trial court denied the

motion on the ground that since the invalidity was not

apparent on the face of the record, the motion had to be

27

brought within recognized time periods, i.e., either the twoyear outer limit adopted by analogy to Code of Civil

Procedure section 473.5, or the shorter period set forth in

Family Code section 3691, or if premised on extrinsic fraud

then at least within a reasonable time after learning the

facts. The trial court found that Gorham waited too long,

and relief was denied. (Gorham, at pp. 1223-1224.)

Gorham appealed.

The Appellate Court of the Fourth Appellate District

reversed.

It held that:

1.

A judgment is void for lack of fundamental

jurisdiction of the person where there is no

proper service on or appearance by a party to

the proceedings!

2.

Where the judgment is void, there is an

entire absence of power by the court to hear

or determine the case;

3.

A void judgment is vulnerable to direct or

collateral attack at any time;

4.

Whether lack of jurisdiction appears on the

face of the judgment or is shown by evidence

outside of the record, in either case the

judgment is for all purposes a nullity past,

present and future;

5.

All acts performed, including entry of

judgments, under it and all claims flowing out

28

of it are void and are vulnerable to direct or

collateral attack at any time;

6.

Where a party establishes that; he or she has

not been served as mandated by the statutory

scheme, no personal jurisdiction by the court

will have been obtained and the resulting

judgment will be void as violating

fundamental due process;

7.

When a judgment or order is obtained based

on a false return of service, the court has the

inherent power to set it aside, and a motion

brought to do so may be made on such ground

even though the statutory period has run.

Though the Gorham court made the above findings

without the necessity of finding extrinsic fraud, it further

discussed that where extrinsic fraud is found, fraudulent

activity must be present. This, though, was a separate

discussion to find another separate pathway to set aside a

void judgment where extrinsic fraud is present. (Please

Trackman v. Kenney 187 Cal.App.4th 175 (2010).) It is this

separation that was not acknowledged and applied by the

Appellate Court. The foremost thrust of the Gorman

opinion was based on non-fraudulent facts which, still

might deprive a party of his or her due process rights.

The Appellate Court Was Mistaken When It Found,

In Equity, That Petitioner Should Not Be Allowed

To Set The Trial Court Decision Aside Because (l)

Subsequent to discovery of the trial court case, she

impliedly accepted trust disbursement funds and, further,

(2) that reopening the case in the trial court setting aside

b.

29

its order approving the settlement agreement would

impair another person’s substantial interest of reliance on

the judgment.’

However, the Appellate Court, indicated that even if

the legal arguments failed an argument equity would still

prevent vacating the trial court judgment;. It stated that if

the rules at law failed that the equitable rule that says ‘(l)

the party seeking relief, after having had actual notice of

the judgment, manifested an intention to treat the

judgment as valid; and (2) granting the relief would impair

another person’s substantial interest of reliance on the

judgment’ would apply (Please see Opinion at p. 20

referencing Gorham, atp. 1229.)

However, the often quoted legal maxim still having

legal impact says that ‘he who seeks equity must do equity.’

In other words, in all fairness, '[H]e who comes into equity

must come with clean hands.' (Keith G. v. Suzanne H.

(1998) 62 Cal.App.4th 853, 862 [72 Cal.Rptr.2d 525] citing

Garamendi v. Mission Ins. Co. (1993) 15 Cal. App. 4th

1277, 1289 [19 Cal. Rptr. 2d 190], quoting 11 Witkin,

Summary of Cal. Law (9th ed. 1990) Equity, § 8, p. 684.)

It is important to understand that at all times until

2018, Petitioner was a minor ward of Daniel and Mary

Thomas, guardian/grandparents. They did not know or

understand that the superior court case existed until 2017

though it was referred to in two letters from attorney Eric

Nielsen. The appellate court indicated that the content of

these letters were sufficient to put the grandparents on

notice that the case existed.

Nevertheless, bad faith can be shown:

30

1.

All notices required by law to be sent to Petitioner

as a beneficiary to the Trust in the underlying superior

court case were sent to Petitioner at two wrong addresses.

Because of the fact that notices were sent to two wrong

address, they parties had to know that at least one of these

addresses was wrong. Further, the parties could have

contacted Petitioner’s father, Joseph Giles, who, at the

time was imprisoned in Florida but who knew Petitioner’s

address. All they had to do was ask him for her address.

They did not ask.

Shortly after the case was settled, James Scott

Blevins’ wife, Dena, without much trouble was able to

contact Dan Thomas, Petitioner’s grandfather/

grandfather/ guardian, by telephone, to inform him that

Charles Giles had left money to Petitioner. She did not

inform him that the money was ordered disbursed as a

result of a court case settlement .

2.

James Scott Blevins did not bring the underlying3.

case for four (4) years and only did so when Dawn Morin

forced the issue filing suit to force disbursement of her

portion of the trust assets. During that time he was caught

attempting to sell real property owned by the Trust to his

brother at a greatly discounted price.

James Scott Blevins represented to the trial court in

4.

2009 in his Petition to Approve and Confirm Account and

Report of Trustee, Approval of Proposed Distribution and

Payment of Trustee's Fees and, again, in his Amended

Petition to Approve and Confirm Account and Report of

Trustee, Approval of Proposed Distribution and Payment

31

of Trustee's Fees that all beneficiaries were adults. This, of

course, was not true.

Because of the bad faith exhibited by James Scott Blevins,

as above shown, he should not be afforded the equitable

exemption allowed in Gorham.

VI. CONCLUSION

For the foregoing reasons, Petitioner Jozlyn Thomas

respectfully requests that this Court issue a writ of

certiorari to review' the denial Petitioner’s Petition for

Review by the California Supreme Court.

Dated this twentieth day of September 2020.

Respectfully submitted,

Jozlyn Thomas, In Pro Per