Filed 9/14/18 Chiquette v. Randazzo CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

DELIA CHIQUETTE, et al., Plaintiffs and Appellants, v. SAUNDRA RANDAZZO, Defendant and Respondent.

H044499 (Monterey County Super. Ct. No. 16PR000271)

Appellants Delia Chiquette and Angel A. Aguilar seek review of an order denying their contest of a trust executed by their mother approximately three years before her death. The superior court ruled that appellants’ contest was time-barred because it was brought beyond the 120-day period allowed under Probate Code section 16061.8[1] following the notification sent to them under section 16061.7. Lacking an adequate record that demonstrates error, we must affirm the order.

Background

The decedent, Delia Y. Aguilar, established the Aguilar Family Trust on June 9, 2011. She had undergone surgery in early March of that year to remove a subdural hematoma caused by a fall. During her recovery she experienced fluctuating mental status, but by April 1 she had improved “quite a bit,” according to the hospital discharge summary. By June 8, her primary care physician, John R. Carlson, M.D., deemed her fully recovered and of sound mind, with “all of her mental capabilities intact.” On June 25 Dr. Carlson rated her at full capacity for all questions on a Judicial Council form in advance of a June 29 conservatorship hearing. On September 13 another physician, Wayne Shen, M.D., also rated her at full capacity on the form before a September 30 conservatorship hearing.

A different assessment was provided, however, by Elaine Finnberg, PhD, who diagnosed the decedent with dementia after interviewing her on June 9, 2011. In a letter that appears to have been part of her assessment, Dr. Finnberg noted “some continuing gaps in memory and cognitive function that would appear to leave her vulnerable to being taken advantage of without her knowing.” Another unidentified report, apparently by a temporary conservator for the decedent’s husband, Angel C. Aguilar, described “careless” management and “questionable transactions” executed by the Aguilars’ daughter Linda, who had been organizing and managing her parents’ finances and appeared to exercise “a great deal of influence over both of them.” The temporary conservator recommended the appointment of an independent conservator of the Aguilars’ estate, “at least until a full examination of all the assets can be made.”

According to the parties,[2] the decedent died May 1, 2014. On June 2, 2014, the trustee, Saundra Randazzo, signed a “Notification by Trustee Under Probate Code Section 16061.7” (Notification). The dispute between the parties pertained to this document. Counsel for Randazzo represented that the Notification was mailed on June 21, 2014 to the trust beneficiaries, Linda Aguilar and Elizabeth Aguilar, and to the four other children of the Aguilars. Linda and Elizabeth Aguilar stated that they received the Notification, whereas their other siblings said they did not. One of the Aguilar children, Evelyn Hanna, had sent Randazzo the addresses she had for her siblings on May 29, 2014. But even Hanna testified that she never received the June 2, 2014 Notification.

On March 19, 2015, Randazzo completed a new document which purported to inform all the Aguilar heirs that she was proposing to sell the Aguilars’ real property located in El Dorado County. The same four siblings stated that they did not know about the sale until March of 2016, after it had taken place.

On June 21, 2016 appellants contested the trust in a document alleging undue influence on the decedent while she was “very confused and delirious” following surgery for brain injuries. Appellants alleged that the beneficiaries of the Aguilar trust, Linda and Elizabeth Aguilar, had restricted access to the decedent by everyone but themselves, and they “did coerce, induce and use false allegations to gain control of [the decedent’s] estate, including blaming the four siblings for their own misappropriation of their parents’ money and several hundred Treasury bonds.” According to appellants, Linda and Elizabeth took advantage of the decedent’s impaired memory during her recovery to induce her to execute the June 9, 2011 trust, which severed the community property and left the decedent’s share entirely to Linda and Elizabeth as beneficiaries. Appellants asked the court to invalidate the severance of the Aguilars’ community property[3] and restore the Aguilars’ property back to its status as of January 1, 2011.

Randazzo opposed appellants’ petition. She asserted that there was no evidence that the decedent had lacked capacity to execute the trust, and no evidence of undue influence by the beneficiaries. She also raised the procedural bar of untimeliness under section 160161.8. According to Randazzo, all heirs were notified by mail that the trust had been executed on June 9, 2011. The Notification contained the warning, consistent with section 16061.7, that any contest had to be brought within 120 days of the date the Notification was served or 60 days from the mailing or personal delivery of a copy of the trust terms, whichever was later.[4]

Counsel for Randazzo asserted that the Notification was mailed to the trust beneficiaries and the decedent’s heirs on June 2, 2014.[5] Both Linda and Elizabeth submitted declarations attesting to their certainty that they received the Notification within a month or two after their mother’s death. Both appellants, however, submitted declarations stating that they were “absolutely positive” that they did not receive the Notification. Each stated that it was only in March of 2016 that they learned that the Aguilars’ property in El Dorado County had been sold and that their mother had severed the community property, leaving her share to Linda and Elizabeth. Two other siblings, Cynthia S. Aguilar and Hanna, also stated by declaration that they had not received the Notification.[6] Thus, according to the declarations, these four siblings knew nothing about their mother’s trust or the sale of the El Dorado property until March of 2016, after Hanna spoke with Randazzo on the telephone.

The matter was heard over two days in January 2017. Randazzo’s counsel, Helen B. Hempel, told the court that there was no one currently in her office that could testify that the Notification was actually mailed. Hanna testified that she used her Rolodex to find the addresses and telephone numbers of her siblings at the request of Randazzo. Delia Chiquette, Hanna said, was living with her at the time. After her father died, Hanna received a notification regarding his probate. She called Randazzo to ask why there had been no similar letter regarding her mother. In that conversation Hanna also told Randazzo that she had heard that the El Dorado County property had been sold. She asked Randazzo why she and her siblings had not been notified about the sale, and Randazzo said she thought she had told them. Hanna testified that she did not know about this sale until after it had occurred.

Appellant Angel A. Aguilar testified that he was unaware of the sale until his sister Evelyn told him about it a year later. Appellant Delia Chiquette testified that she received the March 2015 notification about the proposed sale, but she did not learn that it had taken place until March of 2016. After a recess, the court was presented with a copy of a gift deed, recorded June 15, 2011, transferring the decedent’s interest in the El Dorado County property into her trust. Hanna testified that she had received this evidence only recently; none of the siblings had received a copy before.

Neither the parties nor Hempel adduced a copy of the June 2, 2014 Notification, so the court continued the hearing in order to allow both appellants to bring in the documents in their possession. When the hearing resumed on January 17, 2017, the court heard testimony from Randazzo as well as Hilda Nazario, a witness unidentified in the clerk’s minutes.[7] This hearing was not reported, however.

At the conclusion of the January 17 hearing the court ruled in favor of the trustee. In its written order it found that the Notification had been mailed “timely, in proper form and to the last known addresses of the beneficiaries and heirs at law.” Accordingly, the court ruled that the contest was time-barred under section 16061.7. This timely appeal followed.

Discussion

Although both Delia Chiquette and her brother, Angel A. Aguilar, filed a notice of appeal from the judgment, only Chiquette has filed appellate briefs. In her effort to show undue influence, Chiquette describes fraud and theft, as well as isolation and manipulation of the decedent, perpetrated by Linda and Elizabeth Aguilar, resulting in the June 9, 2011 trust that gave the decedent’s property interest to Linda and Elizabeth. Chiquette cites no evidence in the record supporting these asserted facts; but both the omission and the underlying accusations are irrelevant. The only issue in this appeal is whether the superior court properly found that appellants missed the deadline to contest the trust. That deadline, specified in section 16061.8, states: “No person upon whom the notification by the trustee is served pursuant to this chapter, whether the notice is served on him or her within or after the time period set forth in subdivision (f) of Section 16061.7, may bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon him or her, or 60 days from the date on which a copy of the terms of the trust is delivered pursuant to Section 1215 to him or her during that 120-day period, whichever is later.”

The statute to which this section refers requires the trustee to serve a notification on each beneficiary and heir when the trust becomes irrevocable upon the settlor’s death. (§ 16061.7.) Subdivision (f) of section 16061.7 sets forth the contents of the notification[8] and sets a service deadline of 60 days after the settlor’s death (or other event requiring the notification). Under subdivision (e), the notification may be served by mail pursuant to section 1215.[9]

It was undisputed that appellants’ trust contest was filed on June 21, 2016. If the Notification was actually served on appellants in June of 2014, then the statutory period for the contest expired long before commencement of the action. The record contains no proof of service showing the trustee’s compliance with the service requirement. Chiquette rhetorically asks, “how can one respond to a Notice of Probate [sic] if one has never received one. How is it that not one, but four siblings have stated that this Notice was never received.” She reaffirms her conviction that the decedent “would never have severed her community property” but for the “undue influence, fraud and elderly [sic] abuse” exerted on her by Linda and Elizabeth Aguilar.

We interpret Chiquette’s query as a challenge to the sufficiency of the evidence supporting the lower court’s determination that the Notification was in fact sent to appellants. In undertaking the analysis of this question, we are bound by settled principles of review. It was the lower court’s role to assess credibility and resolve conflicts in the evidence. If substantial evidence supports its determination, we may not substitute our view of the facts for those found by the trial court. (Cf. Shamblin v. Brattain (1988) 44 Cal.3d 474, 479 [substantial evidence supported trial court’s finding that defendant did not receive notice of pending trial]; see also Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1319 [we may not reweigh the lower court’s implicit credibility determinations].) Thus, whether the Notification was actually sent to appellants was a matter for the superior court to determine in the first instance. If substantial evidence supports that determination, we may not reassess the evidence and overturn the lower court’s judgment even if we would have resolved the factual dispute differently.

Our review in this case is severely handicapped by the absence of a reporter’s transcript of the January 17, 2017 hearing.[10] It was at that hearing that the court heard testimony from Randazzo and Nazario before determining that the Notification was in fact sent to appellants. Without a transcript (or settled statement) to review, we cannot know the content of these witnesses’ testimony and consequently are unable to engage in a full review of the evidence supporting the trial court’s finding. Where the record is inadequate for meaningful review, we must resort to the rule that “ ‘[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations].” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Accordingly, we are compelled to presume that the court correctly found that the Notification was sent to all heirs of the decedent.

“A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.” (Evid. Code, § 641.) Once the trustee showed that she sent the Notification to all beneficiaries and heirs, it was up to appellants to rebut that presumption. They failed to meet that burden. Again, without a complete record of the hearing at which the court heard evidence pertaining to service of the Notification, we cannot conclude as a matter of law that service was not effected on appellants in accordance with section 16061.7. Because appellants’ contest of the trust exceeded the 120-day statutory period allowed under section 16061.8, they were not entitled to proceed with their allegations that the disposition of their mother’s trust property was procured through fraud and undue influence by their sisters.

Disposition

The order is affirmed.