Estate of Aubry

Filed 3/8/07 Estate of Aubry CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from orders of the Superior Court of Los Angeles County, Richard G. Kolostian, Judge. (Retired Judge of L.A. Sup.Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Dismissed in part; affirmed in part.

Nina Ringgold in propria persona for Petitioner and Appellant.

Oldman, Cooley, Sallus, Gold, Birnberg & Coleman, LLP, Marshal A. Oldman and Mary-Felicia Apanius for Objector and Respondent Andr-Paul Summers-Chaussier, as successor trustee of the Summers Family Trust.

Law Offices of Andrea Lynn Rice and Andrea Lynn Rice for Objector and Respondent Myer J. Sankary, as successor trustee of the Aubry Family Trust.

______________________

I. INTRODUCTION

This is a probate appeal concerning the Robert B. Aubry estate. Plaintiff, Nina Ringgold, appeals from the orders rendered on October 28, 2005. On October 28, 2005, the probate court denied: as untimely a preemptory challenge; a request for long cause trial setting; and Ms. Ringgolds petition for probate of a will. We conclude: the scope of this appeal must be limited to the October 28, 2005 orders; the preemptory challenge order is not appealable; the order denying the probate petition should be affirmed; and the appeal from the order denying a long cause trial setting is moot.

II. DISCUSSION

A. The Scope Of The Appeal

As noted above, Ms. Ringgold appealed from the orders rendered on October 28, 2005. Ms. Ringgolds notice of appeal does not extend to orders entered on a date other than October 28, 2005. (Glasscov. El Sereno Country Club (1932) 217 Cal. 90, 91-92; DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43; Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 624-625.) We lack jurisdiction to review any orders entered on a date other than October 28, 2005, including any appealable order entered on September 5, 2005.

B. The Preemptory Challenge Order Is Not Appealable

No appeal lies from the preemptory challenge denial under Code of Civil Procedure[1]section 170.6. ( 170.3, subd. (d); People v. Panah (2005) 35 Cal.4th 395, 444; People v. Hull(1991) 1 Cal.4th 266, 273-274, 276.) Ms. Ringgold argues section 170.3, subdivision (d) does not bar review on appeal because she timely filed a mandate petition. We summarily denied her mandate petition. (Ringgold v. Superior Court (Nov. 17, 2005, B186991).) That Ms. Ringgolds mandate petition seeking review of the preemptory challenge order was denied does not make it appealable. (People v. Panah, supra, 35 Cal.4th at p. 445.) Ms. Ringgold has not asserted a due process denial claim. The Supreme Court has held, [N]otwithstanding the exclusive-remedy provision of . . . section 170.3, a defendant may assert on appeal a claim of denial of the due process right to an impartial judge. (People v. Mayfield (1997) 14 Cal.4th 668, 811.) (People v. Panah, supra, 35 Cal.4th at p. 445, fn. 16; see People v. Brown (1993) 6 Cal.4th 322, 335-336.) However, the due process argument must be separately asserted and not merely alluded to by the litigant. (People v. Panah, supra, 35 Cal.4th at p. 445, fn. 16.) Here, as in Panah, although Ms. Ringgold alluded to the due process clauseJudge [Richard G.] Kolostian, the judge before whom the matters have been transferred, is prejudiced against me and my interests so that I do not believe that I can have a fair and impartial trial or hearingher argument is focused on the timeliness of her challenge. She makes no separate due process argument. (Ibid.)

C. The Probate Court Could Properly Deny The Petition to Probate The Will

The existence of property to be administered in probate is a jurisdictional prerequisite. (See Estate of Waits (1944) 23 Cal.2d 676, 679; Estate of Daughaday (1914) 168 Cal. 63, 69; Estate of Jimenez (1997) 56 Cal.App.4th 733, 739-740; Hecht v. Superior Court (1993) 16 Cal.App.4th 836, 850; Estate of Denton (1971) 17 Cal.App.3d 1070, 1076; Estate of Helm (1935) 6 Cal.App.2d 752, 755; Prob. Code, 12251;[2]14 Summary of Cal. Law (10th ed. 2005) Wills and Probate, 352, p. 442 [A probate proceeding is concerned with the administration of an estate, and, if there is no property, there is nothing to administer]; 24 Cal.Jur.3d, Decedents Estates, 46, 48 [[I]f the decedent left no property, there is no estate that can be administered].) Pursuant to Probate Code section 8002: (a) The [probate] petition shall contain all of the following information: [] . . . [] (4) The character and estimated value of the property in the estate. Probate Code section 8005 provides: (a) At the hearing on the petition, the court may examine and compel any person to attend as a witness concerning any of the following matters: [] (1) The time, place, and manner of the decedent's

death. [] (2) The place of the decedent's domicile and residence at the time of death. [] (3) The character and value of the decedents property. [] (4) Whether or not the decedent left a will. [] (b) The following matters shall be established: [] (1) The jurisdictional facts, including: [] (A) The date and place of the decedents death. [] (B) That the decedent was domiciled in this state or left property in this state at the time of death. [] (C) The publication of notice under Article 3 (commencing with Section 8120) of Chapter 2. (Italics added.) Probate Code section 8006, subdivision (a) states: If the court finds that the matters referred to in paragraph (1) of subdivision (b) of Section 8005 are established, the court shall make an order determining the time and place of the decedents death and the jurisdiction of the court. Where appropriate and on satisfactory proof, the order shall admit the decedents will to probate and appoint a personal representative. The date the will is admitted to probate shall be included in the order. A prima facie showing of assets subject to probate is required. (Estate of Daughaday, supra, 168 Cal. at p. 71; Estate of Helm, supra, 6 Cal.App.2d at p. 755.)

In the present case, there was evidence by way of a declaration that the property Ms. Ringgold sought to probate were assets of the Aubry Family Trust; further, the trust beneficiaries, with the exception of Ms. Ringgold, had agreed to a mediated settlement of the trust disputes and a distribution of the trust assets. Therefore, substantial evidence supports the conclusion there was no jurisdiction as there were no assets to be administered. (See Estate of Helm, supra, 6 Cal.App.2d at p. 757.) Under these circumstances, the probate court could reasonably conclude there was no property subject to probate; hence, there was no jurisdiction.

D. The Appeal From The Order Denying A Long Cause Trial Setting Is Moot

As discussed above, we affirm the probate courts order denying Ms. Ringgolds petition to probate the will. Therefore, the appeal from the order denying a long cause trial setting is moot. (See Sacramento Police Officers Assn. v. City of Sacramento(2007) 147 Cal.App.4th 311, __ [54 Cal.Rptr.3d 167, 175]; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 405, 416.)

III. DISPOSITION

The appeal from the order denying a long cause trial setting is dismissed as moot. All other orders under review are affirmed. Andr-Paul Summers-Chaussier, as successor trustee of the Summers Family Trust, and Myer J. Sankary, as successor trustee of the Aubry Family Trust, are to recover their costs on appeal from Nina Ringgold.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P.J.

We concur:

ARMSTRONG, J.

BOLAND, J.*

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

[1] All further statutory references are to the Code of Civil Procedure except where otherwise noted.

[2] Probate Code section 12251 states: (a) At any time after appointment of a personal representative and whether or not letters have been issued, if it appears there is no property of any kind belonging to the estate and subject to administration, the personal representative may petition for the termination of further proceedings and for discharge of the personal representative. The petition shall state the facts required by this subdivision. [] . . . [] (c) If it appears to the satisfaction of the court on the hearing that the facts stated in the petition are true, the court shall make an order terminating the proceeding and discharging the personal representative.

* 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.