Estate of Reed

Filed 11/8/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
Estate of VICTOR REED, Deceased.
DANIEL REED,
Petitioner and Respondent, A148678
v.
(Sonoma County
WILLIAM REED, Super. Ct. No. SPR-82625)
Objector and Appellant;
SHELLEY OCAÑA, as Executor, etc.,
Respondent.
In this probate case, William Reed appeals a 2016 statement of decision removing
him as the personal representative of the probate estate. William had previously been
removed pursuant to an order of the trial court issued in April 2015, which explicitly
referred to a forthcoming written decision that would set forth the basis for the removal
order. In the published portion of this opinion, we reject respondents’ argument that the
April 2015 order was immediately appealable because we conclude the trial court had
expressly reserved jurisdiction to issue a further statement of its reasons and the order
was therefore not final. In the unpublished portion, we affirm the trial court’s rulings.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I.C. and II.
1
BACKGROUND
William and Daniel Reed1 are the children of Victor Reed (Decedent), and are
identified in Decedent’s will as the beneficiaries of his estate (the Estate). In 2010, the
probate court appointed William as the personal representative of the Estate.
In 2014, Daniel filed a petition alleging that, although William was appointed as
personal representative of the Estate in July 2010, he had not yet filed any reports on the
status of the administration of the Estate. The petition also alleged multiple notices of
default had been recorded against certain real property owned by the Estate, William had
not rented out the real property or otherwise made it productive, and Daniel did not know
the status of the remaining assets of the Estate. The petition sought to compel William to
file an inventory and appraisal, order him to reimburse the Estate for losses incurred due
to his conduct, and remove him as personal representative.
Trial on the petition was held in March 2015. At the conclusion of the trial, the
court orally announced its decision to remove William as personal representative and to
appoint Shelley Ocaña in his place. The final statement of decision (the Statement of
Decision) issued in April 2016. William appealed from the Statement of Decision.2
DISCUSSION
I. Appealability
Respondents challenge the appealability of the Statement of Decision. William
relies on Probate Code section 1300, subdivision (g), which provides that an order
“[s]urcharging, removing, or discharging a fiduciary” is appealable, and section 1303,
subdivision (a), which provides that an order “[g]ranting or revoking letters to a personal
representative,” with exceptions not relevant here, is appealable. (See also Code Civ.
1
For convenience, we refer to William and Daniel by their first names. No disrespect is
intended.
2
This court granted Ocaña’s motion to participate in the instant appeal as a respondent.
She filed a response brief, which Daniel joined in its entirety (Cal. Rules of Court, rule
8.200(a)(5)). We refer to Ocaña and Daniel collectively as Respondents.
2
Proc., § 904.1, subd. (a)(10) [appeal may be taken from “an order made appealable by the
provisions of the Probate Code”].)
A. Statement of Decision
Respondents argue that statements of decision are nonappealable. This is
effectively an argument that the appeal is premature. We reject this contention.
“The general rule is that a statement or memorandum of decision is not appealable.
[Citations.] The rule’s practical justification is that courts typically embody their final
rulings not in statements of decision but in orders or judgments. Reviewing courts have
discretion to treat statements of decision as appealable when they must, as when a
statement of decision is signed and filed and does, in fact, constitute the court’s final
decision on the merits.” (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal. 4th
894, 901.)
The Statement of Decision includes a section entitled “Orders,” which includes the
following: “Finds that it is in the best interest of the Estate to remove [William] from his
position as executor of the Estate.” This is most reasonably construed as an order
removing a fiduciary, an appealable order under the Probate Code. (Prob. Code, § 1300,
subd. (g).) Because the Probate Code provides for an appeal from an order removing a
fiduciary, the appeal should not be dismissed on the ground that the order appears in a
statement of decision rather than a separate order or judgment.
B. April 2015 Order
Respondents next argue the final order removing William as personal
representative issued in April 2015 and, because William did not file a timely notice of
appeal from the April 2015 order, this court lacks jurisdiction to review that order now.
1. Background
At the conclusion of the March 2015 trial, the trial court issued an oral ruling
finding William should be removed as personal representative. Because the Estate was in
the process of negotiating the sale of real property and the court did not want William’s
removal to be an impediment to the sale, the court suspended William’s powers as
personal representative except for those powers connected to signing documents
3
regarding the sale of the property in question. The court appointed Ocaña as executor,
effective the day after escrow closed. William requested a statement of decision and the
court directed Daniel to prepare one.
In April 2015, the parties returned to court. The sale of the Estate’s real property
was not yet final but the court, after finding William had exceeded his limited retained
powers by signing for a mechanic’s lien on the Estate property, suspended all of his
powers as personal representative with the exception of the power to write an insurance
check for the real property.3 The court’s written order provided William “be removed
effectively immediately after he has paid approximately $233 from estate funds toward
premise[s] insurance, as he has represented that it is due April 8, 2015” and ordered “the
immediate appointment” of Ocaña as personal representative of the Estate. The written
order further provided: “A written tentative decision addressing the issues covered by
paras. 1-9 and confirming the court’s announcement of its decision from the bench on
March 17, 2015 [the date of trial] as modified April 1, 2015 [the date of the mechanic’s
lien hearing] will be issued separately.” Paragraphs 1 through 9 of the proposed order,
which the trial court struck out, were proposed findings regarding William’s conduct as
personal representative of the Estate, including the finding that “it is in the best interest of
the Estate to remove [William].” Also in April 2015, the court issued letters of
administration to Ocaña. The Statement of Decision issued one year later, in April 2016.
2. Analysis
Respondents argue the court’s April 2015 order removing William as personal
representative was immediately appealable, and William’s failure to appeal that order
renders the current appeal untimely.
“The orders listed as appealable in the Probate Code must be challenged timely or
they become final and binding.” (Estate of Gilkison (1998) 65 Cal. App. 4th 1443, 1450,
3
Respondents argue William stipulated to this order, suggesting he forfeited his ability to
challenge the ruling on appeal. William agreed that his removal be immediate, rather
than delayed, in order to facilitate the sale of Estate property. We do not construe his
agreement regarding the timing of his removal as an agreement to the removal itself.
4
fn. 5.) “Once a final, appealable order or judgment has been entered, the time to appeal
begins to run. The Rules of Court do not provide, once a judgment or appealable order
has been entered, that the time to appeal can be restarted or extended by the filing of a
subsequent judgment or appealable order making the same decision.” (Laraway v.
Pasadena Unified School Dist. (2002) 98 Cal. App. 4th 579, 583 (Laraway).)
In this case, however, a statement of decision was requested, and the April 2015
order removing William explicitly referred to a forthcoming written decision setting forth
the basis for the removal order. “The statutory statement of decision process following
‘ “the trial of a question of fact by the court” . . . [¶] . . . “is for the benefit of the court
and the parties. To the court it gives an opportunity to place upon [the] record, in definite
written form, its view of the facts and the law of the case, and to make the case easily
reviewable on appeal by exhibiting the exact grounds upon which judgment rests. To the
parties, it furnishes the means, in many instances, of having their cause reviewed without
great expense.” ’ [Citation.] A proper statement of decision is thus essential to effective
appellate review. ‘Without a statement of decision, the judgment is effectively insulated
from review by the substantial evidence rule,’ as we would have no means of ascertaining
the trial court’s reasoning or determining whether its findings on disputed factual issues
support the judgment as a matter of law.” (Thompson v. Asimos (2016) 6 Cal.App.5th
970, 981–982 (Thompson).)
Moreover, “[u]nder [Code of Civil Procedure] section 916, ‘the trial court is
divested of’ subject matter jurisdiction over any matter embraced in or affected by the
appeal during the pendency of that appeal. [Citation.] ‘The effect of the appeal is to
remove the subject matter of the order from the jurisdiction of the lower court . . . .’
[Citation.] Thus, ‘that court is without power to proceed further as to any matter
embraced therein until the appeal is determined.’ ” (Varian Medical Systems, Inc. v.
Delfino (2005) 35 Cal. 4th 180, 196–197, fn. omitted.) By including a statement that a
further written order setting forth underlying factual findings would be forthcoming, the
trial court effectively reserved jurisdiction over the matter. (Cf. Laraway, supra, 98
Cal.App.4th at p. 583 [order appealable where “it contemplated no further action, such as
5
the preparation of another order or judgment”]; Delany v. Toomey (1952) 111 Cal. App. 2d
570, 574 [minute order lacking required findings of fact is not an appealable order].) If
such an order were immediately appealable, the trial court would instead be divested of
jurisdiction and precluded from issuing a statement of decision during the pendency of
the appeal. We see no benefit—and significant detriment—to such a process.
We therefore conclude that the April 2015 order, which explicitly referenced a
forthcoming written decision on the findings underlying the order, was not a final
appealable order removing William. For the same reasons, we reject Respondents’
argument that the instant appeal is untimely because William failed to appeal the April
2015 order granting Ocaña letters of administration.
C. Other Orders
In the “Orders” section of the Statement of Decision, the trial court issued three
orders in addition to the order removing William. The court ordered William to file a
final accounting and report, reserved ruling on “issues of damages arising from any
wrongful conduct of [William]” until after the final accounting was filed, and ruled
Daniel was entitled to costs of suit against William. In this appeal, William raises
challenges to these three additional orders.
The Probate Code provisions relied on by William authorize the immediate appeal
of orders “removing . . . a fiduciary” or “[g]ranting or revoking letters to a personal
representative.” (Prob. Code, §§ 1300, subd. (g), 1303, subd. (a).) Neither of these
provisions encompass orders directing a final accounting and report be filed, reserving
the issue of damages arising from the wrongful conduct of a fiduciary, or determining an
entitlement to costs.
William argues the Statement of Decision included appealable orders and
therefore any order contained in the Statement of Decision is appealable. He cites no
authority for this proposition. To the contrary, an order or judgment “may have both
final, appealable portions and interlocutory, nonappealable portions.” (P R Burke Corp.
v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal. App. 4th 1047, 1053.)
6
The portions of the Statement of Decision ordering a final accounting, reserving the issue
of damages, and determining Daniel’s entitlement to costs are nonappealable.
II. The Statement of Decision
We now turn to William’s challenges to the appealable portion of the Statement of
Decision relating to his removal as personal representative. As discussed below, we
reject his challenges.4
A. Controverted Issues
William argues the Statement of Decision fails to address all of the principal
controverted issues at trial. Respondents contend William forfeited this argument by
failing to specify any controverted issues in his request for a statement of decision. We
agree with Respondents.
“The request for a statement of decision shall specify those controverted issues as
to which the party is requesting a statement of decision.” (Code Civ. Proc., § 632.)5 A
party that “failed to specify that the statement of decision should address” a particular
issue “is deemed to have waived its right to object to the failure of the statement of
decision to do so,” even when the party raised the issue in objections to the tentative
4
Because we reject William’s challenges to the Statement of Decision, we need not
decide whether, as Respondents contend, he forfeited them by failing to timely request a
statement of decision.
5
For the first time at oral argument, William contended California Rules of Court, rule
3.1590(n) provides no specification of controverted issues is required for trials completed
within one day. This argument is forfeited (People v. Thompson (2010) 49 Cal. 4th 79,
110, fn. 13) and, in any event, meritless. The cited rule solely addresses the timing of a
request for statement of decision. (Cal. Rules of Court, rule 3.1590(n) [“When a trial is
completed within one day or in less than eight hours over more than one day, a request
for statement of decision must be made before the matter is submitted for decision and
the statement of decision may be made orally on the record in the presence of the
parties.”].) It does not controvert—nor could it—the statutory requirement contained in
Code of Civil Procedure section 632. (Code Civ. Proc., § 632 [“The request for a
statement of decision shall specify those controverted issues as to which the party is
requesting a statement of decision.”]; California Court Reporters Assn. v. Judicial
Council of California (1995) 39 Cal. App. 4th 15, 22 [“the Judicial Council may not adopt
rules that are inconsistent with governing statutes”].)
7
statement. (City of Coachella v. Riverside County Airport Land Use Com. (1989) 210
Cal. App. 3d 1277, 1292.) “[A] general, nonspecific request for a statement of decision
does not operate to compel a statement of decision as to all material, controverted issues.”
(Id. at pp. 1292–1293.)
When William requested a statement of decision, he did not identify any
controverted issues. He has forfeited his argument that the Statement of Decision failed
to address any specific controverted issues.6
B. Factual Findings
William challenges a number of the trial court’s factual findings. We reject
several of these challenges, and find it unnecessary to resolve the remainder.
1. Findings Regarding Animosity and Neglect
The Statement of Decision provides: “A great amount of dissention and animosity
exists between [William] and [Daniel]. [William] failed to put those feelings aside to
attend to the timely administration of the Estate. [William] neglected his responsibilities
to the beneficiaries of the Estate, to the creditors of the Estate, and to the Court. (Probate
Code section 8502(c).)”7
The Statement of Decision consists of Daniel’s proposed statement with the trial
court’s handwritten changes. This finding includes several strike-outs and interlineations
by the trial court. However, a duplicate of the page of Daniel’s proposed statement
6
William argues Respondents forfeited this argument by failing to object below that his
request for a statement of decision did not identify controverted issues. William cites
cases involving an appellant’s forfeiture of an argument that the trial court erred by
failing to raise the issue below. These cases are not authority for the proposition that a
respondent must preserve below an argument that an appellant forfeited an issue.
7
Probate Code section 8502 provides, in its entirety: “A personal representative may be
removed from office for any of the following causes: [¶] (a) The personal representative
has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do
so. [¶] (b) The personal representative is incapable of properly executing the duties of the
office or is otherwise not qualified for appointment as personal representative. [¶] (c) The
personal representative has wrongfully neglected the estate, or has long neglected to
perform any act as personal representative. [¶] (d) Removal is otherwise necessary for
protection of the estate or interested persons. [¶] (e) Any other cause provided by statute.”
8
including this finding appears immediately following this page; on the duplicate page, the
trial court struck the entire paragraph instead of incorporating the changes made on the
previous page. William argues—without citation to authority—that the duplicate page,
occurring second, controls and eliminates the finding from the Statement of Decision
altogether. We disagree. The duplicate page was an apparent mistake; in any event, the
omission of the finding from the duplicate page does not contradict or nullify the express
finding on the first page.
William argues dissention and animosity alone are not grounds for removal under
the Probate Code. Assuming this to be so, at most it renders this sentence of the finding
immaterial. William cites no authority that the inclusion of an immaterial finding is
reversible error. William next contends the finding that he neglected his responsibilities
to the Estate beneficiaries and creditors and to the court is a conclusion of law and fails to
identify ultimate facts showing his wrongful neglect. To the extent he is correct, other
findings supply these ultimate facts, as we discuss below.
William suggests the citation to Probate Code section 8502, subdivision (c), is
ambiguous. We disagree. The provision authorizes the removal of a personal
representative who “has wrongfully neglected the estate . . . .” The finding that William
neglected his duties to the Estate beneficiaries, creditors, and the court, followed by a
citation to this provision, clearly indicates the trial court was relying on this provision in
its decision to remove William as personal representative.
2. Findings Regarding Estate Information and Estate Real Property
William challenges the following three findings:
“During the course of the administration, [Daniel] repeatedly requested that
[William] provide him with information regarding the status of the administration of the
Estate. The evidence presented at trial established that [William] either ignored those
requests or, placed unreasonable conditions upon his agreement to provide information.
[William], for example, refused to provide information to [Daniel] other than in an in-
person meeting attended by [Daniel] and his attorney.”
9
“Four . . . foreclosure proceedings [involving real property owned by the Estate]
were instituted by the mortgage holder during the course of the administration of the
Estate by [William]. The evidence presented at trial established that [William] failed to
take reasonable steps to ensure that the mortgage was being paid on a timely basis. As a
result, foreclosure proceedings were instituted. Penalties in an amount to be borne out by
the accounting to be prepared by [William] were incurred as a result of the foreclosure
proceedings. These penalties were estimated to be as high as $10,000 at trial.”
“[William] failed to timely deal with the real property owned by the Estate.
[William] failed to take any steps to prepare the property for timely sale, to evaluate
whether it was more advantageous for the Estate to retain the property or to sell it, or to
take the necessary steps to rent the property in order to generate income for the Estate
during the course of the administration of the Estate, which has lasted over five years at
this point.”
As to each of these findings, William conclusorily contends they lack substantial
evidence, but provides no discussion of the facts or record citations supporting his
assertion (other than citations to his objections to the proposed statement of decision,
which themselves contained no discussion of the facts or citations to trial evidence). “A
party who challenges the sufficiency of the evidence to support a finding must set forth,
discuss, and analyze all the evidence on that point, both favorable and unfavorable.”
(Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal. App. 4th 209,
218.) Where, as here, an appellant “has failed in his obligations concerning the
discussion and analysis of a substantial evidence issue, we deem the issue waived.”
(Ibid; see also Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP
(2011) 201 Cal. App. 4th 368, 384 (Lonely Maiden) [“ ‘It is the duty of counsel to refer the
reviewing court to the portion of the record which supports appellant’s contentions on
appeal. [Citation.] If no citation “is furnished on a particular point, the court may treat it
as waived.” ’ ”].)
William also claims the findings fail to supply ultimate facts. He argues the
Statement of Decision must include the underlying facts establishing he ignored or placed
10
unreasonable conditions upon Daniel’s requests for information, did not take steps to
ensure the mortgage was being timely paid, and failed to timely sell or rent the Estate real
property. “A statement of decision need not address all the legal and factual issues raised
by the parties. Instead, it need do no more than state the grounds upon which the
judgment rests, without necessarily specifying the particular evidence considered by the
trial court in reaching its decision. [Citations.] ‘[A] trial court rendering a statement of
decision under . . . section 632 is required to state only ultimate rather than evidentiary
facts because findings of ultimate facts necessarily include findings on all intermediate
evidentiary facts necessary to sustain them.’ ” (Muzquiz v. City of Emeryville (2000) 79
Cal. App. 4th 1106, 1124–1125.) “ ‘[T]he term “ultimate fact” generally refers to a core
fact, such as an essential element of a claim.’ ” (Thompson, supra, 6 Cal.App.5th at
p. 983.) The findings are sufficient findings of ultimate facts, establishing the basis for
the trial court’s conclusion that William wrongfully neglected the Estate and should be
removed. It was not necessary for the trial court to identify the evidentiary facts
supporting these ultimate facts.
With respect to the finding regarding Daniel’s requests for information, William
argues he had no duty to deliver records to Daniel and the finding that he imposed
unreasonable conditions on Daniel’s access to Estate information was an erroneous
conclusion of law. He provides no legal authority to support these contentions. “We
need not consider an argument for which no authority is furnished.” (Dabney v. Dabney
(2002) 104 Cal. App. 4th 379, 384 (Dabney).)
With respect to the finding about foreclosures, William argues there was
insufficient evidence to establish with reasonable certainty any amount of loss to the
Estate resulting from these foreclosures. He fails to reference facts or provide record
citations supporting this proposition; he also cites no legal authority that damages in an
amount certain must be proven to sustain an order removing a personal representative.
We decline to consider these forfeited arguments. (Lonely Maiden, supra, 201
Cal.App.4th at p. 384; Dabney, supra, 104 Cal.App.4th at p. 384.)
11
Finally, with respect to the finding that William failed to timely deal with the
Estate real property, William argues the term “timely deal” is ambiguous and not a
statement of ultimate fact. The additional finding that William neither rented the
property, sold it, prepared it for sale, or evaluated whether it should be retained or sold, in
over five years of estate administration, eliminates any ambiguity and supplies any
necessary supporting ultimate facts.
We therefore reject William’s challenges to these three groups of factual findings.
Further, these findings are sufficient to support the removal order. The findings—
William failed to reasonably provide information upon request to Daniel, failed to timely
pay the mortgage causing four foreclosure proceedings on Estate real property and
subsequent penalties, and failed to take any steps to generate income for the Estate from
the Estate real property—provide ample support for the finding that he wrongfully
neglected the Estate (Prob. Code, § 8502, subd. (c)).8
We need not address William’s challenges to other factual findings. “[E]ven when
[a statement of decision] fails to make required findings, ‘if the judgment is otherwise
supported, the omission to make such findings is harmless error unless the evidence is
sufficient to sustain a finding in the complaining party’s favor which would have the
effect of countervailing or destroying other findings.’ ” (Pallco Enterprises, Inc. v. Beam
(2005) 132 Cal. App. 4th 1482, 1501.) None of William’s challenges to other factual
findings—even if meritorious—would support a finding that countervailed or
contradicted the three findings discussed above. Therefore, any error is harmless.
C. Due Process
8
William contends the order finding his removal in the best interests of the Estate is
insufficient because it fails to identify which specific finding supports the removal. He
fails to demonstrate any such error requires reversal. “The failure to make a finding on
an issue raised in the pleadings is harmless error when the missing finding reasonably
may be found to be implicit in other findings.” (People v. Casa Blanca Convalescent
Homes, Inc. (1984) 159 Cal. App. 3d 509, 527, abrogated on other grounds in Cel-Tech
Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal. 4th 163,
184–185.) The three findings we discuss above implicitly constitute a finding that
William wrongfully neglected the Estate. (Prob. Code, § 8502, subd. (c).)
12
William challenges a finding that he accepted receipt of a mechanic’s lien after the
court suspended his power to do so. William argues these facts occurred after the close
of evidence at trial, therefore the inclusion of the finding in the Statement of Decision
violated his due process rights. Assuming the inclusion of the finding in the Statement of
Decision was improper, William fails to demonstrate any prejudice from the error. As
discussed above, the removal order was independently supported by other factual
findings. William contends the error was structural, affecting the fundamental integrity
of the proceedings. To the contrary, the finding was discrete and wholly unnecessary to
support the removal order.
DISPOSITION
The order is affirmed. Respondents shall recover their costs on appeal.
13
SIMONS, J.
We concur.
JONES, P.J.
NEEDHAM, J.
(A148678)
14
Superior Court of Sonoma County, No. SPR-82625, Hon. Hon. Nancy Schaffer, Judge.
Knitter & Knitter, David G. Knitter; William Reed, in pro. per., for Objector and
Appellant.
Friedemann Goldberg, Stephanie Barber Hess, John N. MacLeod; Ballard Law Office
and Benjamin H. Ballard, for Petitioner and Respondent.
Spaulding McCullough & Tansil, Gregory G. Spaulding, Carmen D. Sinigiani, for
Respondent Shelley Ocaña.
15