Filed 10/31/18 Estate of Esposto CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION TWO
| Estate of LEONARD ESPOSTO, Deceased. |
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NANCY HILL, Petitioner and Appellant, v. KATHLEEN AJARI, ET AL., Contestants and Respondents. |
A152388
(San Francisco County Super. Ct. No. PES-16-299813) |
Nancy Hill appeals from an order approving a settlement agreement and dismissing a will contest. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Leonard Esposto signed a holographic will on March 28, 2016. He died three days later.
On May 19, 2016, appellant Hill and Gayle Mazza filed a petition for probate of will and for letters testamentary for the estate of Esposto. Attached to the petition was Esposto’s holographic will, in which (among other things) he left a two-unit residential building in San Francisco to Hill and Mazza.
On June 8, 2016, eight nieces and nephews of Esposto (contestants)[1] filed a will contest objecting to probate of the will. They alleged that Hill and Mazza exerted undue influence over Esposto, and that Hill and Mazza wrote the will themselves and obtained Esposto’s signature “while he was near death in his hospital bed in a sedated condition and infused with mind altering medications.”
Contestants petitioned for letters of special administration requesting that Barbara Simon be appointed special administrator with limited authority. On July 7, 2016, the probate court appointed Simon special administrator of Esposto’s estate.
After the parties conducted substantial discovery, they agreed to mediation. On March 20, 2017, pursuant to the parties’ stipulation, the probate court referred the parties to pro bono mediation with Bette D. Epstein.
The mediation was held on April 13, 2017. Hill and Mazza attended with their attorney. Three of the will contestants, Ajari, Pitcher, and Linsangan, were present. Ajari stated she had limited term powers of attorney for the other five contestants to settle on their behalf. After 10 hours of negotiation, the parties reached an agreement and signed a “Stipulation for Settlement” (stipulated settlement), with Ajari signing on behalf of each of the five absent contestants. As part of the settlement, the parties agreed that contestants would withdraw their petition to contest the will and that the estate would be divided among all of them, with 58 percent to Hill and Mazza and 42 percent to contestants by “Court ordered distribution” (after deduction of approved fees and costs).
The stipulated settlement provided, “The settlement is subject to approval by the Probate Department of the San Francisco Superior Court, and if the Court does not approve this settlement, there is no settlement, and the matter may thereafter be set for trial.” To that end, the stipulated settlement further provided that counsel for contestants would prepare a petition for approval of the parties’ agreement to be filed with the probate court by April 19, 2017, “for hearing or the entry of an order.” The parties also “agree to cooperate with each other and to execute any documents reasonably necessary to effectuate this settlement agreement and the contemplated petition for approval of this settlement.”
Consistent with the stipulated settlement, contestants filed a “Report on Mediation, Petition for Approval of Settlement and Dismissal of Will Contest” (petition for court approval of settlement). Contestants reported that the parties had reached an agreement on the distribution of Esposto’s estate and requested that the court approve the stipulated settlement.[2]
On May 25, 2017, Hill and Mazza filed an objection to the petition for court approval of settlement. The objection was based on the premise that the petition for court approval of the settlement was a motion under Code of Civil Procedure section 664.6 (§ 664.6), and the stipulated settlement did not meet the requirements of the statute, allegedly because Hill and Mazza discovered after the mediation that Ajari’s powers of attorney for the five absent contestants were invalid. This was Hill and Mazza’s only objection; they did not suggest there was fraud, or argue the language of the stipulated settlement was ambiguous, or raise any other challenge on the merits.
In response to Hill and Mazza’s objection, contestants filed a reply arguing that each of the five contestants who had not attended the mediation had subsequently ratified Ajari’s agreement to the stipulated settlement on their behalf.[3]
On June 28, 2017, the Honorable John K. Stewart, an experienced trial judge, held a hearing on the petition for court approval of settlement. No witnesses were called. The court heard oral argument on whether section 664.6 applied to the petition, and “whether or not the signatures [we]re valid.”[4] The court took the matter under submission.
On July 10, 2017, the probate court signed an “Order Approving Settlement and Dismissal of Will Contest.” The court ordered the stipulated settlement approved and dismissed contestants’ petition to contest the will. The court expressly found the petition for court approval of settlement was not brought under section 664.6 and the provisions of that statute did not apply, actual authority was granted by contestants to Ajari to enter into the stipulated settlement, and they subsequently ratified Ajari’s agreement on their behalf.
DISCUSSION
“ ‘A fundamental principle of appellate practice is that an appellant “ ‘must affirmatively show error by an adequate record. . . . Error is never presumed.’ ” ’ ” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 639.) Rather, “[a] judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Further, “prejudice is not presumed and the burden is on the appealing party to demonstrate that prejudice has occurred.” (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 614.) Finally, “[p]ro. per. litigants are held to the same standards as attorneys.” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
Hill has failed to meet her burden in this appeal. The record shows the parties reached a settlement agreement, conditioned on the probate court approving the settlement. Under the specific terms of the parties’ agreement, contestants filed the petition for court approval of settlement, and the probate court approved the agreement as was within its authority to do. (See Estate of Bennett (2008) 163 Cal.App.4th 1303, 1312 [probate court has discretion to modify or rescind parties’ settlement agreement]; Prob. Code, § 11604, subd. (c) [“The court may refuse to order distribution, or may order distribution on any terms that the court deems just and equitable” in certain circumstances]; Estate of Freeman (1965) 238 Cal.App.2d 486, 489 [predecessor statute to Probate Code section 11604 “gave the probate court broad powers to review the consideration for any agreement assigning an interest in an estate; and, in the practical operation of the law, these broad powers have become generally used to supervise all types of settlements in estates, including those among rival claimants and heirs”].)[5]
Hill contends the probate court erred in interpreting the stipulated settlement. This contention is premised on her position that the stipulated settlement does not comply with section 664.6, and therefore the court erred in approving the stipulated settlement because the petition for court approval of settlement was a motion brought under section 664.6.[6]
“ ‘Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit.’ [Citation.] A trial court ‘hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment.’ ” (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732, italics added.) Thus, when a party invokes section 664.6, it is to obtain a judgment from the trial court based on a section 664.6-compliant settlement agreement.
True, one of the concluding terms in the stipulated settlement was that the agreement could be “enforced by any party hereto by a motion” under section 664.6. But the petition for court approval of settlement in this case was not seeking the entry of judgment. Contestants merely sought the court’s approval of the stipulated settlement, a condition agreed to by the parties themselves. Accordingly, the probate court was correct in finding the stipulated settlement did not have to comply with section 664.6 to be approved. As Hill raises no substantive challenge to the stipulated settlement, we find no error in the probate court approving the settlement.
DISPOSITION
The “Order Approving Settlement and Dismissal of Will Contest” filed July 10, 2017, is affirmed. Hill’s request for sanctions is denied.[7] Contestants are awarded costs on appeal.
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Miller, J.
We concur:
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Richman, Acting P.J.
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Stewart, J.
A152388, Hill v. Ajari
[1] The will contestants—David Esposto, Karen Linsangan, Kathleen Ajari, Gary Esposto, Carol Ann Esposto Pitcher, Kenneth Esposto, Laura Esposto Stoney, and Christine Esposto Vanoni—are respondents on appeal. Gayle Mazza is not a party to the appeal. Nancy Hill represents herself on appeal.
[2] Also pursuant to the stipulated settlement, on May 1, 2017, Simon filed a petition for letters of administration with general powers.
[3] Each signed a “Ratification of Stipulation for Settlement,” which provided, “Independent of the sanctioned and approved execution by attorney-in-fact Kathy Ajari of the Stipulation for Settlement on their behalf[,] the undersigned will contestants ratify the Stipulation for Settlement.” Kenneth Esposto signed a ratification on May 26, 2017, and Laura Stoney, Gary Esposto, Christine Vanoni, and David Esposto each signed such a document on May 25, 2017. These documents were also submitted to the probate court.
[4] The appellate record contains no reporter’s transcript of the hearing. This description of the issues argued is based on the mini-minutes, which is found in respondents’ appendix.
[5] Seeking probate court approval of a settlement agreement involving compromise of a will contest is not uncommon. (See Ross, Cal. Practice Guide: Probate (The Rutter Group 2018) ¶ 15:250, p. 15-107 [“Settlement of will contests (as with settlements generally) is encouraged by the courts. But at least with respect to the settlement of post probate contests (petition to revoke probate of will), court approval might be appropriate (or at least advisable) . . .”], Form 15
, “Petition for Approval of Settlement of Will Contest,” pp. 15-232–233].)
[6] Section 664.6 provides, “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Italics added.)
[7] In a letter to the court dated October 12, 2018, Hill requested sanctions against contestants’ attorney for alleged misconduct in filing contestants’ appellate brief. The parties addressed the issue at oral argument at some length. The request is denied.
