Estate of Cohen CA1/3 ( 2021 )

Filed 4/28/21 Estate of Cohen CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
Estate of BISHOP COHEN,
Deceased.
EVERED COHEN, as Administrator,
etc., A155401
Petitioner and Respondent,
v. (City & County of San Francisco
MARY COHEN et al., Super. Ct. No. PES-13-297154)
Objectors and Appellants.
Mary Cohen, Frank Cohen, and Angie Broughton appeal five probate
court orders related to the estate of Bishop Cohen, Mary’s late husband.1
They argue, among other things, that the orders should be reversed because
the trial court erred in (1) finding Mary was not the surviving spouse and
(2) approving the administrator’s accounting of noncash assets. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Bishop died intestate on May 27, 2013. At the time of his death, Bishop
was married to Mary.
We refer to individuals by their first names to avoid confusion and
1
with no disrespect intended.
1
On October 2, 2013, Evered Cohen petitioned the probate court to be
appointed as administrator of Bishop’s estate. Evered is the biological son of
Bishop from a prior marriage. The petition was granted on November 19,
2013. Mary moved to vacate the appointment. The motion was denied on
March 17, 2014. Mary appealed both the November 19, 2013 and the
March 17, 2014 orders. The notice of appeal was also signed by Angie
Broughton. Angie is the biological daughter of Mary from a previous
relationship. This court dismissed the appeal for failure to file an opening
brief and issued remittitur.
On March 20, 2015, Evered filed a petition under Probate Code section
850,2 which allows the administrator of an estate to file a petition where the
decedent has a claim to personal property possessed by another. (§ 850, subd.
(a)(2)(D).) The petition contained the following allegations. While Bishop
and Mary were married at the time of his death, they had been legally
separated pursuant to a stipulated judgment entered in a family law action
on May 29, 2002. The stipulation confirmed various items to Bishop as his
sole and separate personal property, including a coin collection and a truck.
Mary had keys to Bishop’s residence and wrongfully removed his personal
property after his death.
The petition requested orders (1) requiring that Mary appear in court
for examination and provide an accounting of Bishop’s personal property;
(2) establishing estate ownership of Bishop’s personal property; and
(3) imposing a penalty against Mary under section 859, which provides that a
person may be liable for twice the value of property wrongfully taken in bad
faith and recovered in probate proceedings. On October 2, 2015, the probate
2Unless otherwise indicated, all further section references will be to
the Probate Code.
2
court granted the petition in part, ordering Mary to appear in court and
prepare a written inventory of the personal property removed from Bishop’s
residence.
On December 17, 2015, the probate court entered an order of contempt
based on Mary’s failure to file or serve the ordered inventory. Mary appealed
the December 17, 2015 order, as well as other interim orders regarding the
inventory and court appearances.3 This court dismissed the appeal for failure
to file an opening brief and issued remittitur.
On July 15, 2016, the probate court entered an order finding that Mary
had not complied with its prior orders, had not prepared and delivered the
required inventory, and did not appear for the hearing to be examined. The
probate court ordered Mary to immediately prepare and deliver an inventory,
physically deliver the property to be inventoried to Evered’s counsel, and
appear in court.
On October 20, 2016, the probate court entered an order granting the
Probate Code section 850 petition in full. It found that, despite reissuance of
its orders, Mary had willfully failed to comply by failing to prepare and file
the inventory, turn over Bishop’s personal property, and appear for
examination under oath. It ordered Mary to file and serve a complete
inventory and to physically deliver the property to Evered’s counsel within 10
days of service of the order. It also determined that all assets identified in
the Probate Code section 850 petition were assets of Bishop’s estate. It also
awarded double damages against Mary under Probate Code section 859 based
on her conduct. It bifurcated the issue of the value of the assets to be
determined by separate proceeding or petition for final distribution. (See
3 The notice of appeal incorrectly identified some of the dates of the
orders.
3
Prob. Code, § 1000 [rules of practice from Code of Civil Procedure apply in
probate proceedings]; Code Civ. Proc., §§ 598, 1st par., 1048, subd. (b)
[permitting bifurcation of issue when fair, efficient, or convenient].)
On March 21, 2018, Evered filed his first accounting as administrator.
Among other things, it contained an inventory and appraisal of Bishop’s
noncash assets valued at $1,595,760, including the coin collection valued at
$1,529,860 and the truck valued at $25,000. It alleged that Mary’s refusal to
return these assets “made it impossible for [Evered] to accurately value the
property taken” but that he had based his inventory and appraisal on “a due
diligence investigation as to the identification and nature of the missing
assets . . . , including declarations of family members with personal
knowledge of the assets and internet research.” It attached a declaration by
Bishop Jason Cohen (Jason), Bishop’s grandson, who attested that Bishop
had asked him to research the value of certain personal items, including the
coin collection, shortly before his death. The declaration attached a list of
Jason’s purported coin collection research, with the value totaling $1,529,860.
The first accounting also requested that the probate court either find that
Mary was not Bishop’s surviving spouse or, in the alternative, surcharge
Mary’s share of the estate for the damages she had caused.
On August 13, 2018, a hearing was held on the first accounting. Mary
was not present at the hearing. Frank Cohen, the biological son of Bishop
and Mary, appeared in pro per. The record reflects that at the hearing Frank
“stated that he is here to object, that he lives at the home, that he feels there
is an over valuation and that his Father did not have $1,000,000.00 in coins.
Frank Cohen also stated that he does not want a lien on the house, that he
and his Mother are disabled and that the house is homesteaded.”
4
On August 28, 2018, the probate court entered an order settling and
approving the first accounting. It determined the value of Bishop’s tangible
personal property taken by Mary to be fixed at $1,595,760, doubled to
$3,191,520 pursuant to the October 20, 2016 order. With additional fees for
litigation caused by Mary, the probate court surcharged the share of the
estate distributable to Mary in the amount of $3,245,261.39. It entered
judgment for Evered and against Mary in that amount and authorized and
directed Evered to record a lien against a property owned by Mary in
Patterson, California. The probate court struck a sentence from the order
stating that Mary was not the “surviving spouse” for purposes of determining
intestate succession to Bishop’s estate, and that Mary should not be entitled
to a distributive share of the estate. This appeal followed.
DISCUSSION
Mary, Angie, and Frank purport to appeal five probate court orders in
this appeal: (1) the November 19, 2013 order; (2) the March 17, 2014 order;
(3) the July 15, 2016 order; (4) the October 20, 2016 order; and (5) the
August 28, 2018 order.4 Before turning to the substance of their arguments,
we address Evered’s response that we lack jurisdiction to review the orders
and that Angie and Frank lack standing to appeal them.
I. JURISDICTION
Evered argues that we lack jurisdiction to review any of the probate
court orders identified in the notice of appeal. As to the November 19, 2013
and March 17, 2014 orders, Mary and Angie already appealed them. This
court dismissed that appeal. “The dismissal of an appeal shall be with
prejudice to the right to file another appeal within the time permitted, unless
4 The notice of appeal incorrectly identifies the dates of the first two
orders.
5
the dismissal is expressly made without prejudice to another appeal.” (Code
Civ. Proc., § 913.) Accordingly, we conclude that we lack jurisdiction to
review the November 19, 2013 and March 17, 2014 orders.5
As to the July 15, 2016 order, Evered argues that the order is not
appealable. Section 1303 identifies the orders regarding a decedent’s estate
that are appealable, including orders determining entitlement and orders
directing distribution of property. (§ 1303, subds. (f)–(g).) Evered contends
that the July 15, 2016 order, directing Mary to comply with previous orders
regarding the inventory and court appearances, is not covered by section
1303. Mary, Angie, and Frank provide no argument or authority to the
contrary. We conclude that they have not met their burden to show that the
July 15, 2016 order is appealable. (See Cal. Rules of Court, rule 8.204(a)(2)
[opening brief must explain why the order appealed from is appealable].)
As to the October 20, 2016 order, Evered argues that the appeal is
untimely. The notice of appeal was filed over two years after the order was
served, long after the 60-day deadline imposed by California Rules of Court,
rule 8.104(a)(1). Mary, Angie, and Frank contend that this deadline does not
apply because the October 20, 2016 order is “void.” We do not find the
argument persuasive. An order that is “void on its face” may be changed at
any time. (Lovret v. Seyfarth (1972) 22 Cal.App.3d 841, 854.) Here, Mary,
Angie, and Frank argue that the October 20, 2016 order is “void” because it
implicitly accepts that certain assets were Bishop’s personal property
pursuant to the stipulated judgment from 2002, and that the stipulated
judgment was void because Mary did not personally sign it and Bishop’s
5 Given this conclusion, we need not address the challenge to the
November 19, 2013 order that Evered’s appointment as administrator of the
estate is void.
6
counsel fraudulently misrepresented her consent. This is not an argument
that the order is “void on its face.” (Ibid.) We thus conclude that the appeal
of the October 20, 2016 order is untimely.6 (See Estate of Hanley (1943) 23
Cal.2d 120, 122 [“[T]he requirement as to the time for taking an appeal is
mandatory, and the court is without jurisdiction to consider one which has
been taken subsequent to the expiration of the statutory period”].)
As to the August 28, 2018 order, Evered argues that Mary, Angie, and
Frank waived their right to seek review because the only objections presented
to the probate court were made by Frank, who lacked standing to do so. We
thus turn to the issue of standing to resolve this question.
II. STANDING
Evered argues that both Angie and Frank lack standing to appeal the
August 28, 2018 order. As to Angie, he contends that she lacks standing
because she is not one of Bishop’s children and has no interest in Bishop’s
estate. We agree. “To have standing to appeal, a person generally must be a
party of record and be sufficiently aggrieved . . . by the order.” (Bridgeman v.
Allen (2013) 219 Cal.App.4th 288, 292 [discussing standing to appeal probate
order].) “An aggrieved person, for this purpose, is one whose rights or
interests are injuriously affected by the decision in an immediate and
substantial way, and not as a nominal or remote consequence of the decision.”
(In re K.C. (2011) 52 Cal.4th 231, 236.) Here, there is nothing that suggests
Angie has any such right or interest. Angie’s purported interest in Mary’s
6 Given this conclusion, we need not address the challenge to the
October 20, 2016 order that Mary is not liable for double damages under
section 859.
7
estate, which Mary “might attempt to leave” to Angie, does not meet this
standard.7
As to Frank, Evered concedes that Frank is an heir who possesses a
property interest in Bishop’s estate and that Frank has the right to appeal
orders affecting his interest. But according to Evered, Frank does not have
standing to appeal the August 28, 2018 order because his objections at the
hearing did not “transform him” into an “interested person” with standing.
(Boldface omitted.) Evered contends that Frank’s objections—on the alleged
overvaluation of the coin collection and the lien on the Patterson property—
would have “led to a negative effect on his intestate share . . . .” In other
words, Frank’s objections would have decreased what Mary owed to the
estate and, thus, decreased Frank’s distributive share. Thus, Evered
contends that the order “gives Frank more financial benefit than he would
have received had his objections been granted.”
As a preliminary matter, we are not persuaded that Frank’s objections
had no potential personal benefit, especially in light of his representation
that he was living at the Patterson property with Mary. In any event, Evered
cites no authority for his argument that Frank can be divested of standing by
taking a position that may run counter to his financial interest in the estate.
Accordingly, we conclude that Frank has standing to appeal the August 28,
2018 order, and thus turn to the substantive arguments raised on the appeal
of this order.
7 Having concluded that Angie lacks standing to appeal, we need not
consider Evered’s argument that she lacks standing to participate in the
probate proceedings because she is not an “interested person” under section
48. (See Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62, 69
[standing to appeal does not turn on whether party had standing in trial
court].)
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III. AUGUST 28, 2018 ORDER
Mary and Frank argue that the August 28, 2018 order should be
reversed for two reasons. First, they contend that the trial court erred in
“purportedly finding” that Mary was not Bishop’s surviving spouse. Evered
responds that the argument is forfeited because it was not raised in the
probate court. We agree.8 The record does not show any oppositions or
written objections to the first accounting, or any oral argument at the
August 13, 2018 hearing related to Mary’s status as a surviving spouse.
Accordingly, we treat the argument as forfeited.9 (See Estate of Herzog (2019)
33 Cal.App.5th 894, 907 [concluding argument was forfeited where not raised
in probate court].)
Second, Mary and Frank contend that the trial court erred by
approving Evered’s first accounting. They contend that the accounting is
objectionable because (1) there is insufficient evidence that the coin collection
is worth $1,529,860 or that the truck is worth $25,000; and (2) Evered
improperly relied on Jason’s research regarding the value of the coins,
instead of a probate referee or other qualified professional.
8Mary, Angie, and Frank filed a separate request for judicial notice
with their opening brief. We deferred ruling on the request until the merits
of the appeal. (See People v. Preslie (1977) 70 Cal.App.3d 486, 493–494.)
Having now considered the request, we deny it in full. The request asks us to
take judicial notice of court documents and authority relied upon for the
argument that Mary is Bishop’s surviving spouse. In light of our conclusion
that this argument is forfeited, we deny the requests for judicial notice as
unnecessary to our decision. (See, e.g., TransparentGov Novato v. City of
Novato (2019) 34 Cal.App.5th 140, 146, fn. 3.)
We note that, even if the argument had not been forfeited, the
9
August 28, 2018 order contains no finding that Mary was not Bishop’s
surviving spouse.
9
Section 8906 provides that “an interested person may file with the
court a written objection to the appraisal.” (§ 8906, subd. (a).) “The person
objecting to the appraisal has the burden of proof.” (Id., subd. (d); see
Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1392–1393.) The
record reflects that Mary and Frank did not follow the proper procedure for
objecting to the appraisal and offered nothing to satisfy their burden of proof
on the objections. Accordingly, we conclude there was no error.
IV. FRIVOLOUSNESS OF APPEAL
Evered requests an award of fees and costs incurred in this appeal
because the appeal is frivolous. Code of Civil Procedure section 907 provides,
“When it appears to the reviewing court that the appeal was frivolous or
taken solely for delay, it may add to the costs on appeal such damages as may
be just.”
The instant appeal comes right up to the line of frivolousness: As
described ante, (1) it seeks a reversal of orders that were already appealed,
were not appealable, or constituted an untimely appeal; (2) it includes a party
(Angie) who does not have standing to appeal; and (3) it asserts an argument
that has been forfeited. By forcing us to examine those myriad arguments
before rejecting them as having no bases, the appeal has caused a “useless
diversion of this court’s attention” from “[o]ther appellate parties, many of
whom wait years for a resolution of bona fide disputes . . . .” (Finnie v. Town
of Tiburon (1988) 199 Cal.App.3d 1, 17.)
Nonetheless, our Supreme Court has advised us that we should
determine that an appeal is frivolous “only when it is prosecuted for an
improper motive—to harass the respondent or delay the effect of an adverse
judgment—or when it indisputably has no merit—when any reasonable
attorney would agree that the appeal is totally and completely without
10
merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) “[T]he
punishment should be used most sparingly to deter only the most egregious
conduct.” (Id. at p. 51.) Here, the appeal of the August 28, 2018 order is
based in part on Frank’s objections to Evered’s first accounting raised at the
August 13, 2018 hearing. While we determined that the trial court did not
err in approving the first accounting over those oral objections, we cannot
conclude that this appeal was prosecuted only for an improper motive, or was
so totally and completely without all arguable merit as to justify a
determination of frivolousness under this standard.
DISPOSITION
The order is affirmed. Evered is entitled to his costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Petrou, Acting P. J.
_________________________
Wiseman, J.*
A155401/Cohen v. Cohen
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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