Estate of Parsons CA2/7 ( 2024 )

Filed 10/24/24 Estate of Parsons CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
Estate of JOHN WHITESIDE B327202
PARSONS, Deceased.
(Los Angeles County
Super. Ct. No. 21STPB07497)
JOSEPH L. MCCLORY,
Petitioner and Appellant,
v.
SCOTT HOBBS,
Objector and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Brenda Penny, Judge. Affirmed.
Joseph L. McClory, in propria persona, for Petitioner and
Appellant.
No appearance for Objector and Respondent.
________________________
INTRODUCTION
In August 2021, Joseph L. McClory filed a petition in
propria persona to probate the will of John Whiteside Parsons,
who died in 1952. The probate court granted McClory three
continuances, totaling approximately one year, to address
deficiencies in the petition. When another party objected to the
probating of the will, the probate court granted the objector and
McClory two additional continuances to address pleading
deficiencies, which together totaled four months.
In December 2022, at the final hearing on the matter,
McClory explained that he had not served all interested parties
with 15 days’ notice of the hearing in accordance with Probate
Code section 8110 due to certain issues with his process server.1
McClory also acknowledged he had still not appointed a personal
representative for Parsons’s late wife’s estate as the probate court
had directed him to do. The court stated it would grant no
further continuances for McClory to resolve the deficiencies with
his petition and denied it without prejudice.
McClory’s sole argument on appeal is that the court should
have granted him another continuance to cure the deficiencies
with his petition. We conclude that even if the probate court
abused its discretion by denying a further continuance, McClory
has not demonstrated any prejudice because he may refile his
petition. Accordingly, we affirm.
1 Undesignated statutory references are to the Probate Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Probate Petition
On August 2, 2021, McClory and Crystal Eve Kimmel filed
a petition to probate Parsons’s will.2 According to the petition,
Parsons died in 1952, survived by his mother Ruth Virginia
Whiteside and his wife Marjorie E. Cameron. Cameron died in
1995, survived by Kimmel, her only child. The petition alleged
Parsons possessed personal property valued at $15,950, and it
sought to have McClory appointed as executor of Parsons’s estate.
B. The Pleading Deficiencies and Continued Hearings
On September 14, 2021, the probate court called a hearing
on the petition. The court advised McClory it had reviewed the
petition and identified a number of deficiencies, or “notes,” to be
“cleared up” before the will could proceed to probate.3 The court
2 The petition was originally filed as a petition for probate of
will and for letters testamentary. When the court pointed out
McClory was not the named executor in Parsons’s will, McClory
redesignated his petition as one for probate of will and for letters
of administration with will annexed. (See § 8440.)
3 These probate notes “are available in advance of a hearing
in the Probate Division section of the [Los Angeles Superior
Court’s] website.” (Super. Ct. L.A. County, Local Rules,
rule 4.4(a).) “The ‘Matters To Clear’ section of the Probate Notes
informs the parties of additional documents that are necessary to
support judicial consideration of the petition. . . . If the Probate
Notes are not timely cleared, the court will continue the hearing,
place the matter off calendar, deny the matter without prejudice,
or take other action it deems necessary.” (Super. Ct. L.A.
County, Local Rules, rule 4.4(b), (c).)
3
also stated that the “threshold” for probate is “[$]166,000 plus,”
but Parsons’s estate was only valued around $16,000.4 McClory
received a continuance until November 16 to address the
deficiencies with the petition.
At the next hearing on November 16, the court observed
McClory had cleared up five of the outstanding notes and granted
another continuance “so you can get the remaining notes
addressed.” McClory agreed to return for a hearing on January
13, 2022.
At the third hearing on January 13, McClory had not
remedied the remaining issues with his petition that the probate
court had identified. When the court asked about the value of the
estate, McClory stated the estate contained no real property,
bank accounts, stock, or bonds, but did contain “books” and “a
judgment that included a promissory note.” The court agreed to
continue the matter and told McClory, “I can give you one final
4 There is no estate value requirement for the filing of a
probate petition or the exercise of probate jurisdiction. (See
§ 8002 [detailing “jurisdictional facts” that must be alleged in a
probate petition].) The court appears to refer to section 13100,
which allows “the successor of the decedent” to obtain summary
administration by affidavit for an estate that “does not exceed
one hundred sixty-six thousand two hundred fifty dollars
($166,250),” as adjusted periodically. (§§ 13100, 13101 [outlining
summary administration procedure by affidavit].) The Probate
Code also recognizes other summary administration procedures
for small estates. (See §§ 300 [delivery of undisputed tangible
personal property to specified persons], 13200-13210 [transfer of
real property of “small value” by affidavit], 13150-13158
[summary court determination of succession to property], 6600-
6614 [small estate set-aside to surviving spouse or registered
domestic partner and/or minor children].)
4
continuance because . . . this is the third appearance and the
notes aren’t cleared up. . . . [I]f the notes are not entirely cleared
up, the matter is going to be denied without prejudice.”
On the same day, McClory filed a declaration addressing
three of the five remaining notes: whether probate was proper for
an estate of $16,000; the status of Parsons’s mother’s estate; and
whether Parsons’s estate had any creditors or liabilities.
C. The Will Contest
On August 3, 2022, McClory served Scott Hobbs, the
executor of Cameron’s estate, with notice of his petition to
administer Parsons’s estate. McClory also published notice of his
petition in the Pasadena Press.
The court held its next hearing on August 19. At that
hearing, Hobbs appeared, representing the Cameron Parsons
Foundation, “a California nonprofit” owning the “intellectual
property and intellectual rights” of Parsons and Cameron. Hobbs
objected to the will and indicated he would file a will contest.
The court instructed him to do so by September 26. The court
then ordered the matter continued to October 25.
On October 25, Hobbs did not appear due to a medical
emergency. At McClory’s request, the court continued the
hearing to December 13, 2022. The court ordered Hobbs “to
appear on the continued hearing date and have all notes cleared
otherwise the Court will overrule the objections and proceed with
the petition.” The court also advised McClory he still had “notes
to clear” relating to the deficiencies with the petition.
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D. Denial of McClory’s Petition
On December 8, McClory filed a declaration with the court
explaining his efforts to resolve the three remaining notes
regarding the petition. The first note from the court asked,
“‘What assets exist in this estate that need to be administered?’”
McClory asked the court for clarification on how to answer this
question.
Second, as to Cameron’s personal representative, McClory
stated: “[I]f I am appointed as the personal representative of
John Whiteside Parsons’ estate, I will see to it that a petition is
filed so that there is a personal representative appointed for
Marjorie Cameron’s estate.”
Third, McClory addressed the court’s instruction to provide
“‘notice of hearing & copy of petition to County Counsel and
Public Administrator.’” McClory declared he had served both
documents on these parties on November 30 in advance of the
December 13 hearing. McClory further stated, “I learned
yesterday that only 13 days’ notice . . . was given and that
15 days is required.” McClory detailed communication problems
with his legal process server due to the Thanksgiving holiday:
“[O]n Saturday, November 19 I heard back from my legal process
server via email that she would be available on Monday,
November 21 and Tuesday, November 22 for legal process serving
purposes. I had emailed [the notice documents] to my legal
process server at 4:00pm on Monday, November 21 with the
expectation that they would be executed no later than Tuesday,
November 22. I called her on Wednesday, November 23 and her
voicemail message said she would only be available Monday,
November 21 that week and would be back the following week.”
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McClory was able to reach his process server on Tuesday,
November 29, and she served the required notices on
November 30. McClory declared, “[H]ad I been aware that
15 days’ notice was required, I would have been on this like a
hawk, and likely would have gotten these documents to the legal
process server even earlier. But even if I hadn’t, what I sent on
November 21 (which is 22-23 days before the scheduled hearing
and 9 days before she executed them) would still have been long
enough in advance of the 15 day requirement.”
At the hearing on December 13, the probate court observed
“this is the 6th appearance on this case, and we still have notes to
clear. So I can’t give[] you any[ ]more continuances.” The court
stated McClory had not identified a personal representative for
Cameron’s estate or given sufficient 15-day notice to the public
administrator and county counsel. The court remarked, “[T]his
matter has been pending since August of last year. And there’s
still no resolution from notes being cleared. I’ve been trying
to . . . give you ample time, but I can’t continue it anymore.” The
court denied McClory’s petition without prejudice.
McClory timely appealed.
DISCUSSION
McClory argues the probate court should have continued
the proceedings to allow him to remedy the deficiencies with his
probate petition.5 No respondent’s brief was filed.
5 The record does not contain the probate notes on McClory’s
petition, and to the extent McClory challenges in this appeal the
dismissal of his petition on this basis, he has forfeited the
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A. Standard of Review
A probate court “has a wide discretion in granting or
denying a continuance, and its discretion will not be disturbed in
the absence of an abuse of discretion.” (Estate of McManus (1963)
214 Cal.App.2d 390, 398; accord, Forthmann v. Boyer (2002)
97 Cal.App.4th 977, 984-985 (Forthmann); see § 1045 [“The court
may continue or postpone any hearing, from time to time, in the
interest of justice.”].) “The burden rests on the complaining party
to demonstrate from the record that such an abuse [of discretion]
has occurred.” (Forthmann, at p. 985.)
“While it is true that a trial judge must have control of the
courtroom and its calendar and must have discretion to deny a
request for a continuance when there is no good cause for
granting one, it is equally true that, absent [a lack of diligence or
other abusive] circumstances . . . a request for a continuance
supported by a showing of good cause usually ought to be
granted.” (Estate of Meeker (1993) 13 Cal.App.4th 1099, 1105
(Meeker); accord, Hernandez v. Superior Court (2004)
115 Cal.App.4th 1242, 1246-1247 (Hernandez).) Under the
California Rules of Court, rule 3.1332, the court must consider
“all the facts and circumstances that are relevant” to the
continuance request, including “any previous continuance[s],”
“[t]he length of the continuance requested,” “[t]he court’s
calendar,” any “prejudice [to] parties or witnesses,” “[t]he
argument. (See Hernandez v. California Hospital Medical Center
(2000) 78 Cal.App.4th 498, 502 [“Failure to provide an adequate
record on an issue requires that the issue be resolved against
plaintiff.”]; Null v. City of Los Angeles (1988) 206 Cal.App.3d
1528, 1532 [“an appellant ‘“must affirmatively show error by an
adequate record.”’”].)
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availability of alternative means to address the problem” giving
rise to the request, and “[w]hether the interests of justice are best
served by a continuance.”6 (Rule 3.1332(d), (d)(2), (3), (4), (5), (7),
(10).) Rule 3.1332 provides that a “significant, unanticipated
change in the status of the case” can constitute good cause for a
continuance. (Rule 3.1332(c)(7).)
B. Even if the Probate Court Abused Its Discretion by Denying
a Continuance, the Court’s Error Was Harmless
McClory argues he established good cause for a
continuance. He argues that he communicated diligently with
his process server and her failure to timely serve process was
outside of his control.
The court denied McClory’s request for a continuance
because “this is the 6th appearance on this case,” which suggests
the probate court imputed the delay caused by the two
continuances for Hobbs to McClory. Further, the court did not
consider other relevant circumstances weighing in favor of a
continuance beyond the one year and four months the case had
been pending. (See rule 3.1332(d); Oliveros v. City of Los Angeles
(2004) 120 Cal.App.4th 1389, 1399 (Oliveros) [finding an abuse of
discretion where “the only factor” the court considered “was the
impact of a continuance on the court’s calendar”]; Hernandez,
supra, 115 Cal.App.4th at p. 1246 [same]; Meeker, supra,13 Cal.App.4th at p. 1105 [court should not adopt “an attitude of
absolute adherence to time standards” but must “balance” its
6 Further undesignated rule references are to the California
Rules of Court.
9
calendar concerns against “its obligation to provide a meaningful
forum for litigants”].)
McClory argues his declaration sufficiently demonstrated
good cause to continue the case so he could perfect service. The
declaration described an unexpected change in his readiness to
proceed due to circumstances beyond his control involving his
process server. McClory stated that he acted diligently by
attempting to serve timely notice of his petition on county counsel
and the public administrator and communicating with his process
server but that the server miscommunicated her availability,
leading to untimely service. (See Oliveros, supra,
120 Cal.App.4th at p. 1400 [court abused discretion by denying
continuance based on “circumstances beyond [the moving party’s]
immediate control”]; Jurado v. Toys “R” Us, Inc. (1993)
12 Cal.App.4th 1615, 1618 [same, given “a situation which could
not have been known or anticipated” by the litigant].) McClory
promptly alerted the court of these facts as soon as he realized
service was untimely. A brief continuance would have permitted
McClory to serve county counsel and the public administrator
with 15-day notice without unduly delaying the proceedings.
(See rule 3.1332(d)(3) [court must consider “length of the
continuance requested”].) On this record, there is no indication a
short continuance would have caused prejudice to other parties.
(See rule 3.1332(d)(5).)
But even assuming the probate court erred by not granting
a continuance, McClory fails to demonstrate any prejudice. (See
F.P. v. Monier (2017) 3 Cal.5th 1099, 1107 [the California
Constitution permits reversal only if an error “‘resulted in a
miscarriage of justice’”]; Cal. Const., art. VI, § 13.) “‘No form of
civil trial error justifies reversal . . . where in light of the entire
10
record, there was no actual prejudice to the appealing party.’”
(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801.)
The probate court ruled that McClory’s petition was
“denied without prejudice.” “‘The rules of pleading and practice
in civil cases are applicable to proceedings in the Probate
Courts.’” (In re Estate of Pendell (1932) 216 Cal. 384, 386.) “The
term ‘without prejudice,’ in its general adaptation, means that
there is no decision of the controversy on its merits, and leaves
the whole subject in litigation as much open to another
application as if no suit had ever been brought.” (Chambreau v.
Coughlan (1968) 263 Cal.App.2d 712, 718.) Indeed, even “[a]fter
a dismissal ‘without prejudice,’ . . . a new lawsuit asserting the
same causes of action . . . may be instituted as a matter of right
within the period of limitation.” (Wilson v. Bittick (1965)
63 Cal.2d 30, 35; see Graybiel v. Burke (1954) 124 Cal.App.2d
255, 261 [“It is settled law in California that proceedings for the
probate of a will or for letters of administration are not subject to
any statute of limitations.”]; accord, Parker v. Walker (1992)
5 Cal.App.4th 1173, 1186-1187.)
Because his petition was denied without prejudice, McClory
may choose to refile a procedurally compliant petition addressing
any deficiencies identified by the probate court, or to utilize any
applicable summary administration procedure.
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DISPOSITION
The order of the probate court denying the petition without
prejudice is affirmed. McClory shall bear his own costs on
appeal.
MARTINEZ, P. J.
We concur:
SEGAL, J.
FEUER, J.
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