Estate of Leopold CA2/6 ( 2022 )

Filed 9/12/22 Estate of Leopold CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
Estate of KENNETH V. 2d Civ. No. B313758
LEOPOLD, Deceased. (Super. Ct. No. 56-2021-
00551440-PR-TR-OXN)
(Ventura County)
KEVIN R. LEOPOLD,
Appellant,
v.
KENNETH W. LEOPOLD,
Respondent.
Appellant Kevin Leopold contested a trust that disinherited
him of any interest in his late father’s estate. The probate court
dismissed the petition as time-barred. In so ruling, the court
found the trustee, respondent Kenneth W. Leopold, timely served
notice under Probate Code section 16061.71 and thereby triggered
section 16061.8’s 120-day deadline to contest the trust. We
affirm the court’s ruling, as well as its denial of relief under Code
of Civil Procedure section 473.
FACTUAL BACKGROUND
AND PROCEDURAL HISTORY
Kenneth and Kevin are brothers.2 Their late father’s estate
plan treated them very differently. Kenneth received all trust
property, including sole title to the longtime family home at 3666
Birdsong Avenue in Thousand Oaks. Kevin received nothing. A
trust their father executed in 2016 (the 2016 Trust) expressly
disinherited him. A restatement executed in January 2020 (the
2020 Restatement) did so as well. Their father died in April
2020. Kenneth serves as trustee of the estate and now lives at
the Birdsong house with his wife Diana. Kevin is a transient.
Appellant filed a petition contesting the validity of the 2020
Restatement on March 3, 2021. (§ 17200.)3 He alleged his
brother’s undue influence caused his father to disinherit him.
Kenneth objected to Kevin’s petition as time-barred under section
16061.8. He submitted affidavits and exhibits showing Kevin
missed section 16061.8’s 120-day deadline by three months using
even the most conservative methods of calculation. In addition,
1 Unlabeled statutory cites are to the Probate Code.
2 We refer to the parties by their first names to avoid
confusion. No disrespect is intended.
3Appellant titled his contest “Petition for Determining the
Construction, the Validity, and Ascertaining the Beneficiaries of
the Trust.”
2
Kenneth added that Kevin would have nothing to gain from
contesting the 2020 Restatement anyway because their father
had already disinherited him in the 2016 Trust.
In reply, Kevin argued that Kenneth violated the Probate
Code’s notice requirements by mailing trust communications to
the Birdsong house. (§ 16061.7.) He insisted Kenneth “would
have known where to find [him]” and should have used a
different method of service under the circumstances.
Alternatively, Kevin’s counsel sought relief from dismissal under
Code of Civil Procedure section 473 because a miscommunication
with his court service delayed the petition’s filing.
The probate court held Kevin received section 16061.7
notice on July 9, 2020. This meant the March 2021 filing date
fell well beyond the 120-day deadline. It also denied counsel’s
request for relief under section 473. Kevin appealed. (§ 1304;
Code. Civ. Proc., § 904.1, subd. (a)(10).)
DISCUSSION
A. Probate Code Section 16061.7 Notice
Section 16061.7, subdivision (a)(1) requires a trustee to
notify heirs “[w]hen a revocable trust or any portion thereof
becomes irrevocable because of the death of one or more of the
settlors of the trust.” The trustee must do so within 60 days of
the settlor’s death. (Id., subd. (f).) The notice must advise
recipients of their right to receive a copy of the trust and provide
them with the trustee’s contact information. (Id., subd. (g).) It
must also contain the following admonition: “‘You may not bring
an action to contest the trust more than 120 days from the date
this notification by the trustee is served upon you or 60 days from
the date on which a copy of the terms of the trust is delivered to
you during that 120-day period, whichever is later.’” (Id., subd.
3
(h).) Section 1215 allows the trustee to serve the section 16061.7
notice by personal delivery, electronic service, or mailing it to the
recipient’s “place of residence.” (§§ 1215, subd. (a)-(c); 16061.7,
subd. (e).)
Determining whether Kevin received valid section 16061.7
notice required the probate court to resolve interrelated issues of
law and fact. We review its decision for substantial evidence.
(Crocker National Bank v. City and County of San Francisco
(1989) 49 Cal.3d 881, 888 [“If the pertinent inquiry requires
application of experience with human affairs, the question is
predominantly factual and its determination is reviewed under
the substantial evidence test”].)
Substantial evidence supported the trial court’s finding
that Kevin received notice on July 9, 2020. Kenneth offered a
signed section 16061.7 notice dated May 29, 2020. The attached
proof of service showed counsel mailed the notice separately to
Kevin, Kenneth, and Diana on June 16, 2020. Kenneth’s
affidavit explained that Kevin resided in the family home for
many years until their father evicted him in 2019. Kevin
continued to use Birdsong to receive correspondence from his
bank, the DMV, the Social Security Administration, and courts in
which he had criminal cases pending. The brothers had since
developed a system in which Kevin would retrieve mail and other
items when needed from the porch mailbox. Kenneth described
one such retrieval on July 9, 2020. He offered text messages
showing Kevin received the notice and asked Kenneth how to
proceed. The probate court resolved the parties’ conflicting
accounts of these events in Kenneth’s favor.
Kevin also contends sections 1215 and 16061.7 require
personal or electronic service whenever a person is transient or,
4
stated differently, as limiting service by mail to only those
persons with a traditional residential or “home” address. These
plainly worded statutes do not support his interpretation. We
note the trial court accounted for Kevin’s unique circumstances
by calculating his filing deadline from the date he retrieved the
notice from the mailbox (July 9, 2020) instead of the date counsel
mailed the notice (May 16, 2020). Service by mail is generally
considered effectuated upon the latter. (§ 1215, subd. (a)(4).)
B. Relief Under Code of Civil Procedure
Section 473, subdivision (b)
Kevin’s counsel attributed the late filing to an error
involving his attorney service. The court correctly denied relief
under Code of Civil Procedure section 473, subdivision (b).4 The
statute does not provide relief from a party’s failure to meet
jurisdictional deadlines such as section 16061.8’s 120-day contest
period. (See Maynard v. Brandon (2005) 36 Cal.4th 364, 372
[Code Civ. Proc., § 473, subd. (b) cannot extend time to move for
new trial]; Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1211
[excusable neglect not a basis for relief from 100-day deadline to
petition the court to vacate the arbitration award].) Kevin would
have fared no better even if he had timely contested the 2020
Restatement. The 2016 Trust disinherited him as well. We find
no occasion to reverse absent a showing of prejudice. (York v.
City of Los Angeles (2019) 33 Cal.App.5th 1178, 1190; see Cal.
Const., art. VI, § 13; Code Civ. Proc., § 475.)
4 Section 473, subdivision (b) states in pertinent part: “The
court may, upon any terms as may be just, relieve a party or his
or her legal representative from a judgment, dismissal, order, or
other proceeding taken against him or her through his or her
mistake, inadvertence, surprise, or excusable neglect.”
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CONCLUSION
The judgment is affirmed. Respondent shall recover his
costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.*
We concur:
GILBERT, P.J.
YEGAN, J.
* Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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Roger L. Lund, Judge
Superior Court County of Ventura
______________________________
Law Office of Ara Aroustamian, Ara Aroustamian; Mazur
& Mazur, Janice R. Mazur, for Appellant.
Law Offices of Mary P. Kulvinskas, Mary P. Kulvinskas, for
Respondent.
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