Estate of Ibarra

Filed 3/27/06 Estate of Ibarra CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Charles E. Frisco, Judge. Affirmed.

Hinojosa & Wallet, Andrew M. Wallet, and Rebekah E. Swan for Respondent Maria Ibarra.

Miller & Angevine and Elizabethanne Miller Angevine for Respondents, Iris, Crystal, Celeste and Perla Ibarra.

Jay Oberholtzer, Probate Volunteer Panel Attorney, for Respondents, Jacqueline Ibarra and Bryan Ibarra

Pray, Price, Williams & Russell and David M. Price for Appellant.

INTRODUCTION

Isaias Ibarra (decedent) had two families – a wife and four children, and a non-marital partner and three children. Decedent died intestate. Thereafter, a settlement resolved the conflicting claims of the two families. At the time, the non-marital children were represented by an attorney from the probate volunteer panel (PVP), but not a guardian ad litem. This is an appeal from the order enforcing the settlement agreement. When the non-marital partner (Maria Torres) refused to sign the subsequently drafted written agreement on behalf of her children, the trial court entered an order enforcing settlement.

We conclude reversal is not required even though there was no guardian ad litem appointed for the non-marital children prior to issuance of the trial court's order enforcing settlement.

FACTUAL AND PROCEDURAL BACKGROUND

1. Initial facts.

Decedent married Maria Ibarra (wife or administrator) on November 4, 1988. They had four children (the marital children): Iris born August 20, 1989; Cristal born May 25, 1991; Celeste born March 22, 1995; and Perla born November 28, 1998.

Decedent also had a long-term relationship with Maria Torres (Torres), with whom he had three children (the non-marital children): Michelle, born March 3, 1983; Jacqueline born May 27, 1991; and Bryan born December 21, 1996.[1]

Decedent died intestate on March 22, 1999. At the time, decedent owned a partnership interest in a fast-food business, as well as a number of parcels of real property, some of which were rental properties. Decedent's estate was worth more than $2 million.

2. The initial proceedings.

The first probate pleadings were filed in 1999.

Wife was appointed as administrator of the estate.

On June 19, 2000, Elizabethanne Miller Angevine, attorney at law, was appointed guardian ad litem for the marital children. It appears attorney Angevine was also appointed as Probate Volunteer Panel attorney (PVP) for the marital children.

On May 16, 2000, Jay Oberholtzer, attorney at law, was appointed as PVP attorney to represent the non-marital children, who were all minors at the time. (Michelle would turn 18 in 2001.)

After the first petition was filed in the probate court, a number of other petitions, by different persons, followed. The issues presented in the petitions included, among others, the paternity of the non-marital children, the value of decedent's property, the characterization of decedent's property as separate or community property, whether separate property had been commingled with community property, if decedent had promised to leave property to Torres in a will, the amount of decedent's interest in the fast food business, and the tax consequences of the sale and distribution of property.

The characterization of the property was an important aspect of the dispute because if it were all community property, then the non-marital children would have no interest therein. (Prob. Code, § 6401, subd. (a).) If, however, some of the property was decedent's separate property, then two-thirds of decedent's separate property would pass to his children in seven equal parts. (Prob. Code, § 6401, subd. (c)(3).)[2] In this regard, Torres and her children argued there was a substantial separate property component of decedent's property.

Eventually, the court determined that decedent was the father of the non-marital children and thereafter, everyone agreed these children had a right to inherit. Also, forensic accountants were retained.

A number of issues were resolved. Trial on the remaining issues was set for June 9, 2004.

3. The mandatory settlement conference.

A mandatory settlement conference was held on February 17, 2004. The following persons participated: attorneys for wife, as administrator of the estate; attorney Angevine, for the marital children; and PVP Oberholtzer for the non-marital children. Additionally, wife and Michelle were present. Torres, who had received notice of the proceeding, was not present. However, she conferred by telephone with PVP Oberholtzer and conferred by telephone with her eldest daughter, Michelle.

The appellate record does not contain any information as to the positions advocated at the conference by the parties or the facts relied upon to advocate these positions. Further the record contains very little information as to the value of the assets in question. The record does disclose, however, that PVP Oberholtzer negotiated vigorously for the non-marital children.

After several hours of negotiating, a hearing was held before the trial court. Everyone agreed there had been a global settlement of the remaining issues. The trial court was informed that Torres had agreed to the settlement after having been informed of its terms by telephone.

The terms of the settlement were placed on the record. According to the settlement, each non-marital child would receive $165,000, net. Because Jacqueline and Bryan were minors, their funds would be placed into blocked accounts. A parcel of property located at 8148 Garden View in South Gate would be sold. The funds from the sale and cash in the estate would provide the funds for the payments to the non-marital children. Additionally, the equivalent of $165,000, net, in the form of real property would be placed in trust for each marital child. To effectuate the distribution to the marital children and in order to pay estate administrative costs, other properties would be refinanced. After payment of attorney fees and costs, the balance of the estate would be distributed to wife.

During the proceedings, Michelle confirmed her understanding and consent to the settlement.

The trial court directed that a written settlement agreement be prepared setting forth the terms of the oral settlement agreement pronounced that day.

In light of the settlement, wife, as administrator, immediately began to market for sale the South Gate parcel of property. Multiple offers were received.

A written settlement agreement was prepared and circulated. Torres and Michelle refused to sign the stipulation. Torres informed PVP Oberholtzer that she wanted her children to receive real property instead of $165,000 in cash.

4. The motion to enforce settlement.

Wife, as administrator, filed a motion to enforce settlement (Code Civ. Proc., § 664.6) which was set for April 21, 2004. Torres appeared without counsel and requested a continuance. The trial court continued the matter, informing her that the continued hearing would be held if by that time she had not secured counsel.

On May 12, 2004, the matter was called for hearing. PVP Oberholtzer and attorney Angevine impliedly joined in the motion to enforce settlement as they argued for its enforcement.

PVP Oberholtzer appeared for Jacqueline and Bryan. PVP Oberholtzer was relieved as counsel for Michelle, who was now an adult. Attorney David Price substituted in on behalf of Michelle. Attorney Price stated he could not appear for Torres as he had not obtained a written waiver of any potential conflict of interest, although the positions of Michelle and Torres were identical.

Attorney Price made a motion for a continuance on behalf of Michelle. Attorney Price suggested that the propriety of the settlement could not be examined until the properties were re-appraised, in light of the increase in real estate values since the appraisals had been completed. Michelle was called to the stand. The trial court found that the settlement was binding as to Michelle, who was an adult at the time she had agreed thereto. The trial court denied Michelle's motion to continue.

Torres, appearing in propria persona, then addressed the court. She objected to the court going forward with the settlement and requested a continuance. In response to the court's inquiry as to why she wanted the matter continued, Torres stated, â€