Estate of Yeh CA4/2 ( 2016 )

Filed 2/11/16 Estate of Yeh CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
Estate of JOHN YEH, Deceased.
ALISON YEH, as Administrator, etc.,
E062486
Petitioner and Respondent,
(Super.Ct.No. PROPS1200620)
v.
OPINION
KWAN HUNG,
Claimant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cynthia Ann
Ludvigsen, Judge. Dismissed.
Kwan Hung, Claimant and Appellant in pro. per.
Alison Yeh, Petitioner and Respondent in pro. per.
Kwan Hung appeals from an order of the probate court denying her creditor’s
claim against Alison Yeh, as administrator of the estate of John Yeh. We must dismiss
the appeal because the challenged order is not appealable.
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I
PROCEDURAL BACKGROUND
In August 2012, Alison Yeh (Yeh) filed a petition to administer the estate of John
Yeh under the Independent Administration of Estates Act. (Prob. Code, § 10400 et seq.)
In October 2012, she was appointed as administrator. Also in October 2012, she gave
notice to creditors, including Hung, by mail. In November 2012, Hung filed a request for
special notice.
In December 2013, Hung filed a creditor’s claim for $8,400. In January 2014, Yeh
filed a final accounting in which she listed Hung’s claim as untimely. (See Code Civ.
Proc., § 366.2.) Hung filed an objection to the accounting, arguing that her claim was not
untimely. In June 2014, after hearing argument, the trial court denied Hung’s creditor’s
claim.
II
APPEALABILITY
Yeh asserts that the challenged order is not appealable. She does not discuss the
issue further. “Nonetheless, since the question of appealability goes to our jurisdiction,
we are dutybound to consider it on our own motion. [Citations.]” (Olson v. Cory (1983)
35 Cal.3d 390, 398.)
“It is well established that ‘[a]ppeals which may be taken from orders in probate
proceedings are set forth in . . . the Probate Code, and its provisions are exclusive.’
[Citation.]” (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1125-1126.)
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In McDonald v. Structured Asset Sales, LLC (2007) 154 Cal.App.4th 1068 [Fourth
Dist., Div. Two] (McDonald), this court held that an order denying a creditor’s claim is
not appealable. (Id. at pp. 1072-1076.) “The appropriate course of action when a
creditor’s claim is rejected is for the creditor to commence a separate action on the
rejected claim challenging rejection of the creditor’s claim. [Citations.] This is the
exclusive method of enforcing a claim which has been rejected by the court.” (Id. at
p. 1074.)
According to Hung, the order is appealable under Probate Code section 1300,
subdivision (k). That subdivision provides that an order adjudicating the merits of a
petition under Probate Code section 850 et seq. is appealable. Such a petition deals with
adverse claims to specific, identifiable property of the estate. (Prob. Code, § 850, subd.
(a); see generally Ross & Cohen, Cal. Practice Guide, Probate (The Rutter Group 2015)
¶¶ 15:556-15:558.) Hung did not file such a petition and does not assert such a claim.
Admittedly, Hung raised the issue in the form of an objection to Yeh’s accounting.
An order settling an account of a fiduciary is appealable. (Prob. Code, § 1300, subd. (b).)
However, “[a]ppealability is not necessarily determined by the label given the order. The
right to appeal under the Probate Code is determined by the effect of the order, not by its
form.” (Eisenberg et al., Cal. Practice Guide, Civil Appeals and Writs (The Rutter Group
2015) ¶ 2:191a, p. 2-131.) The challenged order denied the creditor’s claim; it did not
settle the account as a whole.
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Finally, in connection with a motion for more time on oral argument, Hung
invoked Probate Code section 1300, subdivision (d). At that point, it was too late to raise
a new argument. (Conservatorship of Moore (2015) 240 Cal.App.4th 1101, 1107.)
Separately and alternatively, the argument lacks merit. We specifically held in McDonald
that this subdivision does not authorize an appeal from an order denying a creditor’s
claim. (McDonald v. Structured Asset Sales, LLC, supra, 154 Cal.App.4th at pp. 1073-
1074.)
We conclude that we must dismiss the appeal.
III
DISPOSITION
The appeal is dismissed. In the interests of justice, each party shall bear her own
costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
CODRINGTON
J.
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