Petition for Writ of Certiorari — Matthew Liebovich, et al., Petitioners v. Diane Janice Tobin, et al.

No. ______

In the

Supreme Court of the United States

__________________

MATTHEW LIEBOVICH, ESTHER LIEBOVICH, AND

ANDREW LIEBOVICH,

Petitioners,

v.

DIANE JANICE TOBIN,

LORI ROBIN, AND MARC CHOPP, AS TRUSTEES,

Respondents.

__________________

On Petition for Writ of Certiorari to the

California Supreme Court

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

MITCHELL KEITER

Counsel of Record

KEITER APPELLATE LAW

The Beverly Hills Law Building

424 South Beverly Drive

Beverly Hills, CA 90212

(310) 553.8533

mitchell.keiter@gmail.com

Counsel for Petitioners

Matthew Liebovich et al.

February 8, 2022

i

QUESTION PRESENTED

Notice is an “elementary and fundamental

requirement of due process,” so where a court enters

a judgment absent notice, the Due Process Clause

demands “‘wip[ing] the slate clean . . . [and]

restor[ing] the petitioner to the position he would

have occupied had due process of law been accorded

to him in the first place.” Peralta v. Heights Med.

Ctr., Inc., 485 U.S. 80, 84, 87 (1988) (internal citation

omitted).

Citing California Code of Civil Procedure section

473, subdivision (d) (“The court may. . . set aside any

void judgment or order”), a state appellate court held

trial courts have discretion to deny motions to vacate

a void judgment – even one entered without notice.

The Court of Appeal held Peralta did not apply

because it did not “purport[] to address whether the

existence of a meritorious defense may be considered

when a trial court is exercising its discretion under

section 473, subdivision (d).” (Emphasis in original.)

Does Peralta compel courts to vacate void

judgments entered absent notice, or does the lack of

express reference in this Court’s opinion to California

Code of Civil Procedure section 473, subdivision (d)

permit California courts to deny such motions to

vacate? More generally, does U.S. Supreme Court

precedent constrain the application of a state statute

only when the decision specifically cites the statute?

ii

PARTIES

Petitioners, who were appellants in the California

litigation, are Matthew, Esther, and Andrew

Liebovich. Respondents, who were respondents in the

California litigation, are Diane Janice Tobin, Lori

Robin, and Marc Chopp, as Trustees.

CORPORATE DISCLOSURE STATEMENT

The Liebovich siblings are individuals. None of

the parties has a parent corporation or publicly held

stock owner.

RELATED PROCEEDINGS

Liebovich v. Tobin (BP138119) (Los Angeles

Superior Court) [denying motion to vacate] (May 2,

2018).

Liebovich v. Tobin (B292177) (California Court of

Appeal) [reversing and remanding in part] (Sep. 5,

2019).

Liebovich v. Tobin (BP138119) (Los Angeles

Superior Court) [denying motion to vacate] (Dec. 18,

2019).

Liebovich v. Tobin (B306184) (California Court of

Appeal) [affirming Superior Court denial] (Aug. 26,

2021).

Liebovich v. Tobin (S271214) (California Supreme

Court) [denying review] (Nov. 10 , 2021).

iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . ii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

OPINIONS AND ORDERS BELOW . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PERTINENT CONSTITUTIONAL PROVISIONS

AND STATUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 1

A. Factual background . . . . . . . . . . . . . . . . . . . . . 1

B. Procedural history . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE PETITION . . . . 4

I. Insofar as a state statute grants trial courts

discretion to deny motions to vacate judgments

and orders entered without notice, it conflicts

with the Due Process Clause. . . . . . . . . . . . . . . . 4

II. This Court should address whether its decisions

must expressly reference state statutes in order to

supersede or constrain them. . . . . . . . . . . . . . . . 6

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

iv

APPENDIX

Appendix A Order in the Supreme Court of

California

(November 10, 2021) . . . . . . . . . . . App. 1

Appendix B Opinion in the Court of Appeal of the

State of California Second Appellate

District Division Two

(August, 26, 2021) . . . . . . . . . . . . . App. 2

Appendix C Minute Order in the Superior Court

of California, County of Los Angeles

Probate Division Stanley Mosk Dept.

- 11

(December 18, 2019) . . . . . . . . . . App. 26

v

TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey,

530 U.S. 466 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Blakely v. Washington,

542 U.S. 296 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Coe v. Armour Fertilizer Works,

237 U.S. 413, 424 (1915) . . . . . . . . . . . . . . . . . . . . . . 5

Cunningham v. California,

549 U.S. 270 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fuentes v. Shevin,

407 U.S. 67, 81 (1972) . . . . . . . . . . . . . . . . . . . . . . . . 4

Joint Anti-Fascist Refugee Comm. v. McGrath,

341 U.S. 123, 170 (1951) . . . . . . . . . . . . . . . . . . . . . . 4

Peralta v. Heights Med. Ctr., Inc.,

485 U.S. 80, 84, 87 (1988) . . . . . . . . . . . . . . . . . . . . . 4

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . 1

U.S. Const amend. XIV . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTES

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Cal. Code Civ. Proc. 473(d) . . . . . . . . . . . . . . . . 1, 5, 6

1

OPINIONS AND ORDERS BELOW

The California Supreme Court’s denial of

review is attached as Appendix A. The California

Court of Appeal opinion is attached as Appendix B,

and can be found at 2021 WL 3782064. The Superior

Court ruling is attached as Appendix C.

JURISDICTION

The California Supreme Court denied petitioners’

petition for review on November 10, 2021. This Court

has jurisdiction under 28 U.S.C. § 1257.

PERTINENT CONSTITUTIONAL PROVISIONS

AND STATUTES

The Fifth Amendment to the United States

Constitution provides “No person shall be . . .

deprived of life, liberty, or property, without due

process of law.” The Fourteenth Amendment provides

that no “State deprive any person of life, liberty, or

property, without due process of law.” California

Code of Civil Procedure section 473, subdivision (d)

provides a “court may . . . on motion of either party

after notice to the other party, set aside any void

judgment or order.”

STATEMENT OF THE CASE

A.

Factual background

In 2006, Shirley and Theodore Liebovich amended

their trust substantively to provide equal shares for

their four children, and provided that grandchildren

would inherit the share of a predeceasing parent.

App. 4-5. Procedurally, they provided they must act

2

jointly to “alter, modify, or amend” the trust, and

Shirley gave Theodore power of attorney to exercise

certain functions, but not to amend beneficiaries or

waive legal notice. App. 5.

Between 2007 and 2011, Theodore amended the

trust four times (each time signing for himself and

purportedly on Shirley’s behalf). App. 5. These

amendments, inter alia, acknowledged son Bruce’s

death, deprived Bruce’s four children (petitioners) of

any share of the estate, and thus left almost the

entire estate to respondents, daughters Diane and

Lori (the Trustees). App. 5.

Theodore then petitioned to (1) amend the 2006

amendment to enable the trust’s modification

through the power of attorney; (2) to amend the

power of attorney to enable him to amend the trust

on Shirley’s behalf; and (3) enforce these

amendments retroactively. App. 5. Theodore did not

serve Shirley with the petition, and purported to

waive notice on her behalf. App. 5. The court granted

the petition in 2013. App. 6. Theodore died nine

months later. App. 7.

B.

Procedural history

After Shirley’s 2017 death, petitioners moved to

vacate the order disinheriting them. App. 8. The

probate court denied the motion on the ground that

petitioners were not entitled to notice, and any failure

to serve Shirley with notice was irrelevant because it

was not she who was bringing the instant challenge.

App. 8. The Court of Appeal reversed and remanded

3

in part; it agreed that petitioners were not entitled to

notice but held “the 2013 Order was void on its face

due to lack of notice to Shirley,” and petitioners had

standing to challenge it. App 8, emphasis added. The

Court of Appeal ordered the probate court to

determine on remand (1) whether notice to Shirley

“would have led to a different result”; and (2)

whether petitioners had been diligent in bringing the

motion. App. 8.

On remand, the probate court found (1) “Shirley’s

participation . . . would not have led to a different

result”; and (2) petitioners had not been diligent.

App. 31-32. The Court of Appeal affirmed the denial.

It rejected petitioners’ contentions: (1) that “trial

courts must set aside [facially] void judgments and

orders”; (2) and that when considering a motion to

vacate a void order, courts may not “consider

whether vacating the order and starting over would

lead to a different result.” App. 14-17. The Court of

Appeal declined to follow Peralta, 485 U.S. 480, and

its progeny because these cases did not specifically

consider the language of section 473, subdivision (d):

“[N]one of these cases purports to address whether

the existence of a meritorious defense may be

considered when a trial court is exercising its

discretion under section 473, subdivision (d).” App.

17.

4

REASONS FOR GRANTING THE PETITION

This case concerns the important of notice and

due process specifically, and the effect of this Court’s

precedents more generally.

I. Insofar as a state statute grants trial

courts discretion to deny motions to

vacate judgments and orders entered

without notice, it conflicts with the Due

Process Clause.

“[F]airness can rarely be obtained by secret, onesided determination of facts decisive of rights.”

Fuentes v. Shevin, 407 U.S. 67, 81 (1972), quoting

Joint Anti-Fascist Refugee Comm. v. McGrath, 341

U.S. 123, 170 (1951) (conc. opn. of Frankfurter, J.).

Because notice to apprise interested parties of the

action and to afford them an opportunity to present

objections is an “elementary and fundamental

requirement of due process,” a judgment entered

“without notice or service is constitutionally infirm.”

Peralta, 485 U.S. 80, 84.

Peralta made clear that where a party obtained a

judgment without notice, the merits of the matter

were immaterial. The appellee there urged the

appellant needed to show the procedural violation

caused prejudice, contending that “to have the

judgment set aside, appellant was required to show

that he had a meritorious defense.” Peralta, 485 U.S.

at 85. The Court rejected this prejudice requirement

as “untenable.” Id. This Court instead recalled its

own precedent: “Where a person has been deprived of

5

property in a manner contrary to the most basic

tenets of due process, ‘it is no answer to say that in

his particular case due process would have led to the

same result because he had no adequate defense

upon the merits.’ ” Id. at 86-87, quoting Coe v.

Armour Fertilizer Works, 237 U.S. 413, 424 (1915).

The Court of Appeal recognized Peralta’s holding

on this very question, as petitioners cited the case to

show that when trial courts review motions to vacate

orders obtained without due process, they may not

“consider whether vacating the order and starting

over would lead to a different result.” App. 16. The

state court, however, held Peralta did not govern the

case, because it did not “purport[] to address whether

the existence of a meritorious defense may be

considered when a trial court is exercising its

discretion under section 473, subdivision (d).” App.

17.

This case therefore presents the question of how

courts consider motions to vacate judgments and

orders entered without notice. Is such a motion one of

the “discretionary, equitable calls” where the merits

of the case matter, as the California court held, so

the movant must show prejudice (App. 17), or does

“The Due Process Clause demand[] no less” than “ ‘

wip[ing] the slate clean to] “restore[] the petitioner to

the position he would have occupied’ ” absent the due

process failure? Peralta, 485 U.S. at 87, internal

citation omitted.

6

II. This Court should address whether its

decisions must expressly reference state

statutes in order to supersede or constrain

them.

The broader issue raised here is whether this

Court’s decisions bind state statutory and case law,

or whether the state statutory tail may wag the

constitutional dog. The instant Court of Appeal,

instead of recognizing that the California Legislature

had enacted section 473(d) decades before Peralta

and thus had no opportunity to consider its

constitutional command, held Peralta must yield to

the statute because Peralta did not address section

473, subdivision (d) expressly.

This Court’s decisions have never been thus

cabined. For example, in deciding Apprendi v. New

Jersey, 530 U.S. 466 (2000), this Court held that a

jury must find beyond a reasonable doubt any fact

needed to authorize an increase in the maximum

sentence. This Court did not purport to identify every

state sentencing provision that failed to comply with

this rule, but that did not ensure their continuing

validity. Cunningham v. California, 549 U.S. 270

(2007); Blakely v. Washington, 542 U.S. 296 (2004).

Following Apprendi, this Court invalidated a

California sentencing law in Cunningham, and a

Washington law in Blakely, even though the

Apprendi opinion referenced neither provision.

Certiorari will clarify the role of Supreme Court

precedent and provide guidance to state courts.

7

CONCLUSION

This Court should grant certiorari.

Respectfully submitted,

MITCHELL KEITER

Counsel of Record

KEITER APPELLATE LAW

The Beverly Hills Law Building

424 South Beverly Drive

Beverly Hills, CA 90212

310.553.8533

mitchell.keiter@gmail.com

Counsel for Petitioners

Matthew Liebovich et al.