Estate of Schneider

 

 

 

 

 

 

 

 

Filed 11/8/13  Estate of Schneider CA4/3

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

Estate of ULRIKE SCHNEIDER, Deceased.
JIM TRAVIS TICE,         Petitioner and Respondent,               v.   DANIEL A. NOROSKI,         Objector and Appellant.	G047377            (Super. Ct. No. 30-2009-00329902)            O P I N I O N

 

                        Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Randall J. Sherman, Judge.  Affirmed.

                        Vogt Resnick Sherak,
David A. Sherak and Jeany A. Duff for Objector and Appellant.

                        Catanzarite Law
Corporation, Kenneth J. Catanzarite, Ronald R. Roundy and Eric V. Anderson for
Petitioner and Respondent.

*               
*                *

Tragically,
Ulrike Schneider died of cancer on July
10, 2009 at the age of 46.  She
died intestate, unmarried, and without children.  Ulrike’s mother Erika stands to inherit the
estate (Prob. Code, § 6402, subd. (b))href="#_ftn1" name="_ftnref1" title="">[1]
and would ordinarily be entitled to appointment as administrator of the estate (§ 8461,
subd. (e)).  But Erika is a resident of Germany,
precluding her appointment as administrator. 
(§ 8402, subd. (a)(4).)  And prior
to the recent amendment of section 8465, Erika was also precluded from nominating
an administrator to serve in her stead. 
(Estate of Damskog (1991) 1
Cal.App.4th 78, 79; Stats. 2012, ch. 635, § 1 [effective January 1,
2013, court may now appoint as administrator nominee of heir who is precluded
from acting as administrator by reason of foreign residency].)

Against
this legal backdrop, two competing petitions for letters of administration were
on file with the probate court as of mid-2012. 
One was submitted by appellant Daniel Noroski, Ulrike’s long-term,
live-in boyfriend.  Noroski petitioned to
have the public administrator (see § 7600 et seq.) appointed; the public
administrator’s office opposed its own appointment in this case.  The second petition was filed by respondent
Jim Travis Tice.  Although Tice himself
had no special status that would have entitled him to priority for appointment
(§ 8461), the Tice petition was filed by the same attorneys who
represented Erika in objecting to the Noroski petition.  Tice sought appointment to pursue claims
against Noroski and others on behalf of the estate.  Noroski claimed it would be inappropriate to
appoint Tice because Tice was biased against Noroski on account of Tice’s
relationship with Erika’s law firm and his announced intention to pursue
litigation against Noroski on behalf of the estate.

The
court issued letters of administration to Tice and denied Noroski’s petition,
an appealable order.  (§ 1303, subd.
(a).)href="#_ftn2" name="_ftnref2" title="">[2]  We affirm.

FACTS

 

Noroski’s
Initial Submissions

In April 2010, Noroski
filed a verified petition with the probate court identifying himself as the
surviving spouse of Ulrike.  In an
attachment, Noroski represented that he and Ulrike “married on April 23, 1999 in Munich,
Germany.”  Noroski signed the petition under penalty of
perjury.  The petition sought a
determination of property passing to the surviving spouse without
administration, a confirmation of property belonging to the surviving spouse,
and immediate appointment of a probate referee.  Noroski identified Erika as Ulrike’s mother,
but indicated her mailing address in Germany
was unknown.  Noroski listed real
properties in La Mirada and Lake
Arrowhead as subject to the
petition.  Noroski supplemented this
petition in May 2010, with further detail regarding the Lake
Arrowhead property and funds in
escrow ($56,750) for the purchase of a Corona
residence.

In
December 2011, Noroski filed a petition for letters of administration naming
the public administrator as administrator of the estate.  In this petition (again verified by Noroski
under penalty of perjury), Noroski represented that Ulrike had no spouse at the
time of her death.  This petition
identified Erika and Ulrike’s brother, Wolfgang, as Ulrike’s survivors, with
notice sent care of the Catanzarite Law Corporation (Catanzarite).  This petition estimated the value of the
estate as $5,000, consisting solely of personal property.  A hearing date of February 2, 2012 was indicated on the petition.

 

Erika
and Wolfgang Schneider Submissions

On
January 20, 2012, Erika and
Wolfgang (both residents of Germany)
filed a petition for letters of administration, in which they sought to
nominate James Schramm (an accountant with experience in the administration of
estates) as administrator of Ulrike’s estate.  This petition characterized the estate as
consisting of litigation claims of an uncertain value, including claims both
against Noroski and shares of claims brought by Noroski against third parties.  Schramm stated in a declaration that he
“would support the filing and prosecution of both complaints on behalf of the
estate.”

Alongside
their petition, Erika and Wolfgang objected to Noroski’s petition for letters
of administration.  Erika and Wolfgang
claimed Noroski had no right to bring the petition, pointed out his
inconsistent filings with regard to his status as Ulrike’s spouse, and claimed
Noroski was simply trying to thwart justified litigation against him.  The objection was supported by the declaration
of attorney Kenneth Catanzarite, who attached Noroski’s 2010 petition and
supplemental petition to demonstrate the inconsistency of its representations
with the December 2011 petition.  Erika
and Wolfgang requested that the court take judicial notice of a 2003 quitclaim
deed signed by Noroski in which Noroski described himself as an “unmarried
man.”

 

>March 1, 2012 Hearing

At
a hearing conducted on March 1, the public administrator appeared and stated it
opposed its own appointment as administrator. 
Counsel for Noroski stated he would “still seek to have the public
administrator appointed.”  The court
stated to counsel for Erika and Wolfgang that “you’re going to have to deal
with [an] issue of non-residen[ts] of the United
States not having standing to nominate a
personal representative.  [¶]  However, that doesn’t prevent the person from
filing a petition on their own behalf assuming they are a California
resident.”  The court continued the
hearing to March 28, 2012.

Additional
Noroski Submissions

On
March 28, 2012, Noroski
filed a supplement to his petition in response to “probate notes” from the
court concerning his relationship with Ulrike.  Noroski verified the following explanation
under penalty of perjury:  Noroski “and
the decedent were not legally married and therefore, [Noroski] is not the
surviving spouse of the decedent. 
However, [Noroski] and the decedent cohabited and held themselves to the
public as husband and wife since 1998 until the decedent’s death on July 10, 2009.  On information and belief, [Noroski] was
decedent’s partner under a nonmarital oral agreement . . . , the specific terms
of which are that [Noroski] and decedent were husband and wife and upon the
death of one the other inherits the deceased person’s estate as surviving
spouse.”  Noroski appended a memorandum
of points and authorities in support of his petition for letters of
administration.

 

>March 28, 2012 Hearing

At
this hearing, when asked whether it was willing to serve, the public
administrator again “strenuously object[ed] to being appointed in this
matter.  It’s all about litigation, and
we don’t want to handle [it], nor are we equipped to.”  Counsel for Erika explained that Schramm
withdrew his consent to appointment, but they were looking for a new proposed
administrator to pursue litigation claims on behalf of the estate.  As noted by counsel for Noroski, “the civil
court has made it clear that any interest that the decedent may have of claims
against the insurance company or Mr. Noroski must be brought by the personal
representative.  That’s why . . . both
parties are here to try to get somebody appointed.”  The court continued the hearing.

 

>Tice Submissions

On
April 6, 2012, Tice submitted a verified petition for letters of administration.
 The petition was supplemented on May 14,
2012.  The information in this petition
was similar to the petition seeking the appointment of Schramm, including the
identification of litigation claims adverse to Noroski as the only property of
the estate.

 

>May 16, 2012 Hearing

The
court opened this hearing with the following inquiry:  “This is a petition with Mr. Noroski
nominating the public administrator to serve as personal representative.  The personal representative does not consent
to the appointment.  They can’t be
compelled because it’s less than $150,000 [in the estate].  So why shouldn’t the court just go ahead and
deny this petition today?”  Counsel for
Noroski responded:  (1) by noting an
objection to the pending Tice petition; (2) by explaining the estate could be
worth more than $150,000 if the litigation proposed by Tice were successful;
and (3) by asserting the public administrator is the “most qualified to act”
under the circumstances of this case.  The court continued the hearing on Noroski’s
petition until June 20.  Upon Noroski’s
request, the court continued the following day’s scheduled hearing on Tice’s
petition to June 20 as well.  The court
noted that this continuance was in part to allow Noroski time to file written
objections.  The court had noted earlier
in the hearing that “if there’s an objection, you’re going to have to go
through a trial . . . .”

 

>Noroski’s Objections to Tice Petition

On
May 16, 2012, Noroski filed a written response and objections to the Tice
petition.  In citing an alleged conflict
of interest that would preclude the appointment of Tice, Noroski claimed:  “Tice is not capable of properly executing
the duties of a personal representative, is improperly biased, is not qualified
for appointment as personal representative, and Mr. Tice’s appointment as
personal representative is not in the best interest of the estate or its
heirs.  On information and belief, Mr.
Tice is an attorney and former law partner of [Catanzarite], who co-counseled
with Mr. [Kenneth] Catanzarite on numerous cases.”  “[B]oth [Catanzarite] and Mr. Tice are
clearly biased and have no regard for ethics. . . .  It financially benefits both Mr. Tice and his
colleague Mr. [Kenneth] Catanzarite . . . to pursue the claims against Dr.
Noroski.  It is impossible for Mr. Tice
to be impartial here.”  “[D]espite the
claims against . . . Noroski having no merit, being made for the sole purpose
of harassing and extorting . . . Noroski, and not for the purpose of
benefitting the estate . . . , Mr. Tice will pursue such claims if selected,
without question.  In fact, the
Schneiders never filed any claim related to the estate for several years, until
[Catanzarite] pursued them in Germany for its own benefit.”

Noroski
also pointed out that Catanzarite was representing both Tice and the Schneiders
in this matter.  Noroski claimed he was a
beneficiary of the estate due to his alleged oral agreement with Ulrike.  Noroski cited Catanzarite’s adverse
involvement in five pending cases against Noroski.  According to Noroski, the cases included a
suit filed by the purchaser of Noroski’s dental practice, a class action on
behalf of former dental patients, an action brought on behalf of Erika and
Wolfgang against Noroski for funds associated with the dental practice, an
employment case brought by a former employee against Noroski’s dental practice,
and a case against multiple parties (including Noroski) involving insurance
claims made after the destruction by fire of a residence owned (at least in
part) by Ulrike before her death. 

 

>Declarations in Support of Tice Petition

On
May 24, 2012, Kenneth Catanzarite filed a declaration in which he stated, “Tice
is not a former partner of [mine].  He
was an employee only until the middle of 2008. 
We do not associate socially or otherwise.”  “Paul Velasco has agreed to associate into
the case upon Mr. Tice’s appointment to deal with any conflict.”  Paul Velasco, a certified specialist in
probate law, submitted his own declaration representing that he would associate
as counsel for Tice to address any conflicts of interest. 

 

Tice’s
Verified Response to Objections

Tice
claimed there was no conflict of interest, both because he was not biased as a
result of his previous employment by Catanzarite, and because Noroski was not a
beneficiary of the estate.  Tice
characterized Noroski’s objections as efforts to divert attention from his own
conduct.

 

>June 20, 2012 Hearing and Minute Order

The
court began this hearing by confirming that the public administrator still had
no interest in serving.  The court then
announced its tentative ruling “to sustain the objections and deny the
[Noroski] petition.  And on Mr. Tice’s
petition to overrule the objections and approve the petition.”

Counsel
for Noroski stated, “Your Honor, I believe my clients have a right to an
evidentiary hearing on this issue on the appointment of an administrator for
this estate.  I believe we should have
this go to an evidentiary hearing.”

Rather
than directly addressing this point, the court explained the reasoning behind
its tentative ruling:  (1) Noroski
committed a fraud on the court by inaccurately describing Ulrike’s marital
status in verified submissions; (2) as a matter of law, there is no bias or
conflict with regard to Tice that precludes appointment; and (3) the public
administrator is unwilling to serve.  Counsel for Noroski argued that his client had
not intentionally misstated the facts, then reiterated his request for “an
evidentiary hearing on the issue of who should be appointed administrator.”  The court again did not address the question
of an “evidentiary hearing.” 

At
the end of the hearing, the court responded to Noroski’s request for a
statement of decision:  “That’s not an
appropriate procedural component of this type of hearing, so no.”

Nevertheless,
the same day, the court issued a minute order explaining its ruling:  “As to the petition filed by . . . Noroski
nominating the Public Administrator, the Public Administrator has indicated
that he is unwilling to serve, and under . . . [section] 7620 the Public
Administrator is not obligated to serve if the total value of the property in
the estate is less than $150,000, which is the case alleged here.  In addition, the court sustains the
objections of Erika Schneider and Wolfgang Schneider, which are based in part
on Noroski attempting to commit a fraud on the court by filing a Spousal
Property Petition alleging under oath that he was the spouse of the decedent,
when in fact he was not the decedent’s spouse. 
Thus, the court denies the Petition for Letters of Administration filed
by . . . Noroski.”

“As
to the petition filed by . . . Tice, Noroski has objected on the ground that
Tice, an attorney, allegedly is biased and has a conflict of interest because
he is affiliated with the attorneys representing Erika Schneider and Wolfgang
Schneider in litigation against Noroski. 
It appears that there is no conflict of interest as a matter of law, and
the court concludes that Noroski’s objections do not amount to a ground for
disqualification under . . . [s]ection 8502, and overrules the objections.  Accordingly, the Petition for Letters of
Administration filed by . . . Tice is approved as supplemented, and . . . Tice
is appointed as Administrator of the Estate of Ulrike Schneider . . . .”

 

DISCUSSION

 

                        Noroski raises two
alleged procedural errors by the court. 
On the merits, Noroski contends the court erred both by appointing Tice
as administrator and refusing to appoint the public administrator.  We reject each of Noroski’s assertions.

> 

>The Court Was Not Obligated to Continue the
Case for an “Evidentiary Hearing”


                        Noroski’s first
contention is that his attorney’s oral request for an “evidentiary hearing” at
the June 20, 2012 hearing was erroneously denied by the court.  Our review of the hearing transcript suggests
that Noroski’s attorney was not asking to put on witnesses at the June 20 hearing.  (See § 1046 [at probate court hearing,
court shall “consider evidence presented”].) 
Instead, it appears that Noroski’s attorney was really asking the court
to schedule a trial in the future on the issue of whom to appoint as
administrator.  (See § 1045 [“The
court may continue or postpone any hearing, from time to time, in the interest
of justice”].)  There is no indication in
the transcript that Noroski, Tice, or any other potential witness was even
present at the hearing.  Counsel for
Noroski did not state he wished to call a witness to testify; he stated “we
should have this go to an evidentiary hearing.”

“Except
to the extent that [the Probate Code] provides applicable rules, the rules of
practice applicable to civil actions . . . apply to, and constitute the rules
of practice in, proceedings under this code. 
All issues of fact joined in probate proceedings shall be tried in
conformity with the rules of practice in civil actions.”  (§ 1000.)  Even though they would constitute hearsay at
trial, affidavits and declarations are admissible as evidence in civil law and
motion practice.  (See Code Civ. Proc.,
§§ 2009, 2015.5.)  Indeed, “[e]vidence
received at a law and motion hearing must be by declaration or request for
judicial notice without testimony or cross-examination, unless the court orders
otherwise for good cause shown.”  (Cal.
Rules of Court, rule 3.1306(a).)  “A
party seeking permission to introduce oral evidence . . . must
file, no later than three court days before the hearing, a written statement
stating the nature and extent of the evidence proposed to be introduced and a
reasonable time estimate for the hearing.” 
(Cal. Rules of Court, rule 3.1306(b).)

Clearly,
Noroski’s assertion of error would fall flat were it made regarding a civil law
and motion hearing.  Noroski did not seek
leave of the court before the hearing to offer oral evidence at the
hearing.  Noroski did not even suggest
his witnesses were prepared to offer testimony at the hearing.  Noroski received an “evidentiary hearing,” in
that the court made itself available to consider any evidence and argument
submitted by the parties before issuing its ruling.  Viewed in this light, Noroski was >orally requesting a continuance of a hearing
that had already begun (and had already been continued on numerous occasions),
as well as an opportunity to present oral testimony at the continued hearing, a
request that would not be well taken by a court conducting a law and motion
hearing.

But
Noroski argues the result is different under the Probate Code:  “An affidavit or verified petition shall be
received as evidence when offered in an
uncontested proceeding under this code.” 
(§ 1022, italics added.)  This
statute has been interpreted to require live testimony whenever an objection is
raised to the adjudication of an issue by affidavits, declarations, or verified
petitions.  (Estate of Bennett (2008) 163 Cal.App.4th 1303, 1308-1309 (>Bennett).)  According to Noroski, Bennett and another recent case (Estate of Lensch (2009) 177 Cal.App.4th 667 (>Lensch)) require courts to conduct
“evidentiary hearings” (in the sense of receiving oral testimony as at trial)
regardless of the party’s readiness to call witnesses or the timing of the
party’s objection to written evidentiary submissions (i.e., even if, like here,
the request is not made in writing or even orally until the last of four
hearings on the same subject, and is made only at the final hearing once the party
discovers he is going to lose).  We do
not think these cases go so far.

In
Bennett, certain family members of
the decedent filed a section 11604 motion to set aside and rescind a settlement
agreement and assignment of their interest in the estate.  (Bennett,
supra, 163 Cal.App.4th at p.
1307.)  Corporate claimants (Smith)
opposed the motion.  (>Id. at pp. 1305, 1307.)  While both sides submitted declarations
supporting their positions, Smith argued in its written opposition papers that
the factual issues required a “‘trial or evidentiary hearing on the
merits.’”  (Id. at p. 1307.)  At the
hearing, Smith reiterated the need for an “‘evidentiary hearing,’” but the
court took the matter under submission without the benefit of oral testimony
and ultimately ruled in the family’s favor. 
(Id. at p. 1308.)  The appellate court concluded that the
probate court erred in its refusal to “conduct an evidentiary hearing.”  (Ibid.)  Bennett
does not support Noroski’s position. 
Unlike Noroski, Smith raised the need for an evidentiary hearing in its
written opposition before the initial
hearing on the motion began.  Smith
reiterated this position at the first and only hearing, apparently before the
court had expressed its view of the motion. 
(Ibid.)  The Bennett
trial court wrongly ignored Smith’s timely invocation of the need for a trial
on the numerous disputed factual issues raised in the family’s motion.  (Id.
at p. 1309.)

In
Lensch, Gladys — the family matriarch
— died, having left a will dividing her estate between her daughter Claudia and
her son Jay.  (Lensch, supra, 177
Cal.App.4th at p. 671.)  Jay was
found dead 11 hours after Gladys’s death. 
(Ibid.)  Jay’s will disinherited his two sons, Jason
and Ean.  (Ibid.)  Claiming they were
entitled to Jay’s share of Gladys’s estate, Jason and Ean petitioned pursuant
to section 230 for a determination of which family member died first.  (Id.
at pp. 671, 675.)  The June 25, 2008 petition
stated that the time of death on Jay’s death certificate was actually the time
of discovery of Jay’s body, and that out-of-court statements by the coroner
suggested Jay had died between 24 and 48 hours before the discovery of his body.  (Id.
at pp. 671-672.)  Jay’s executor filed a
written opposition to the petition on July 25, 2008.  (Id.
at p. 672.)  The written opposition
argued that death certificates proved the times of death of the two family
members and the petition “was based on ‘inadmissible opinions, speculation, and
hearsay.’”  (Ibid.)  The record did not
“contain a copy of any proof of service” of the opposition.  (Id.
at p. 677, fn. 2.)  It is therefore
unclear whether Jason and Ean even knew their petition was opposed until the
hearing occurred five days later.

At
the “brief hearing” conducted on July 30, 2008, the court issued a tentative
ruling suggesting that Gladys’s will did not require the survival of the
beneficiaries, an argument not addressed by either of the parties in their
written submissions.  (>Lensch, supra, 177 Cal.App.4th at p. 672.)  The court ultimately confirmed its tentative
ruling and ruled alternatively that the only evidence before it (the death
certificates) showed that Jay survived Gladys. 
(Id. at pp. 672-673.)  The court deemed the coroner’s alleged
statement to be hearsay.  (>Id. at p. 672.)  On three occasions at the hearing, counsel
for petitioners requested an “evidentiary hearing,” but the court apparently
denied those requests.  (>Id. at p. 672.)

Interpreting
the meaning of Gladys’s will de novo, the appellate court first determined it
was error to conclude there was no survival requirement in the will.  (Lensch,
supra, 177 Cal.App.4th at pp.
673-675.)  Thus, the dispositive issue in
the case was the question of who survived whom. 
The appellate court held that the “probate court should have held an evidentiary
hearing on this issue and erred in denying appellants’ request for one.”  (Id.
at p. 675.)  On appeal, Jay’s executor
conceded Jason and Ean were entitled, in a general sense, to present live
testimony.  (Id. at p. 677.)  The court
rejected the executor’s assertion that Jason and Ean had waived or were
estopped from asserting their right to an “evidentiary hearing.”  (Id.
at pp. 677-678.)  The court held that
California Rules of Court, rule 3.1306(b), does not apply to probate
proceedings.  (Id. at p. 677.)  Moreover,
the court disagreed with the suggestion that Jason and Ean “followed a
deliberate trial strategy in which they chose to rely on the allegations of
their petition.”  (Id. at p. 678.)  The court
noted they “requested an evidentiary hearing shortly after they learned that
their petition was opposed.”  (>Ibid.) 


>Lensch does not hold that, under any
circumstances, a participant in a probate proceeding can wait to request a
separate “evidentiary hearing” until after a previously scheduled contested
hearing begins.  In the instant case,
Noroski did not orally request an evidentiary hearing the first three times the
court held a hearing regarding the appointment of an administrator.  Noroski did not object in writing at any time
to the court’s reliance on written submissions. 
Noroski specifically requested that the court continue a previously
scheduled hearing on Tice’s petition so it would coincide with the final June
20 hearing on Noroski’s petition.href="#_ftn3"
name="_ftnref3" title="">[3]  The court granted this continuance in part to
allow Noroski additional time to file written objections.  (Cal. Rules of Court, rule 7.801.)  It does not appear Noroski was ready to
present live testimony at the June 20 hearing — even his own testimony (which
would have been most relevant to the factual question of whether his initial
petition was fraudulent).  Instead, Noroski
sought to delay the proceedings further by asserting an alleged right to an “evidentiary
hearing” that would necessarily include a continuance.

We
conclude Noroski forfeited the right to a trial on the competing petitions
under the unique circumstances of this case. 
(See Evangelho v. Presoto
(1998) 67 Cal.App.4th 615, 620 [“‘where the parties do not object to the
use of affidavits in evidence, and where both parties adopt that means of
supporting their positions, the parties cannot question the propriety of the
procedure on appeal’”]; Estate of
Fraysher (1956) 47 Cal.2d 131, 135.) 
Prior to his discovery that he was going to lose the fight at the June
20 hearing, it appears Noroski followed a “deliberate . . . strategy” of
relying on written evidentiary submissions. 
(Lensch, supra, 177 Cal.App.4th at p. 678.)  Noroski’s belated request for an “evidentiary
hearing” was too little, too late.

 

>The Court Provided an Adequate Statement of
Decision

Noroski
also claims the court committed reversible error when it denied his counsel’s oral
request at the hearing for a statement of decision.  A statement of decision must “explain[ ] the
factual and legal basis for [the court’s] decision as to each of the principal
controverted issues at trial . . . .”  (Code Civ. Proc., § 632; see also >Kazensky v. City of Merced (1998) 65
Cal.App.4th 44, 67-68.)  Statements of
decision are sometimes required even when an actual “trial” has not occurred.  (Metis
Development LLC v. Bohacek (2011) 200 Cal.App.4th 679, 688-689.)

Although
not denominated as such, the minute order satisfied any obligation the court may
have had to provide Noroski with a statement of decision.  The basis for the court’s decision was
communicated in the minute order.  The
court’s denial of Noroski’s petition was based on its factual findings that
Noroski had committed a fraud upon the court and that the public administrator
was not willing to serve.  The court’s
grant of Tice’s petition was based on the legal conclusion that there was no
cognizable conflict precluding the appointment of Tice, even taking Noroski’s
factual allegations about Catanzarite’s involvement in pending litigation to be
true.  Thus, assuming the court was wrong
to orally reject Noroski’s request for a statement of decision, such error
would necessarily be harmless.

 

>The Court was Entitled to Reject Noroski’s
Petition

We
review the court’s appointment of Tice (and refusal to appoint the public
administrator) for an abuse of discretion. 
(See Estate of Bertie (1955)
132 Cal.App.2d 522, 524-525.)

“A
person has no power to administer the estate until the person is appointed
personal representative and the appointment becomes effective” through the
issuance of letters.  (§ 8400, subd.
(a).)  If a person dies intestate, the
court shall appoint an “administrator” (or administrators) of the estate.  (§ 8460; cf. § 8420 [appointment of
“executor” of will].)  Of relevance here,
one power of personal representatives is to “[c]ommence and maintain actions
and proceedings for the benefit of the estate.” 
(§ 9820, subd. (a); see Smith
v. Cimmet (2011) 199 Cal.App.4th 1381, 1390-1391 [explaining that
estate itself is not a legal entity and that personal representative must appear
in court on behalf of estate].)

Section
8461 sets forth an “order of priority” for appointment as administrator of an
estate:  “(a) Surviving spouse or
[registered] domestic partner . . . . 
[¶]  (b) Children.  [¶] 
(c) Grandchildren.  [¶]  (d) Other issue.  [¶] 
(e) Parents.  [¶]  (f) Brothers and sisters.  [¶] . . . [¶]  (p) Public administrator.  [¶] 
(q) Creditors.  [¶]  (r) Any other person.”  Ulrike and Noroski were not married or
registered domestic partners.  Ulrike had
no children, grandchildren, or other issue. 
Were section 8461 the only applicable statute, Erika would be “entitled
to appointment as administrator” as the parent of Ulrike.  However, certain individuals ordinarily
entitled to priority are disqualified from appointment as administrator,
including nonresidents of the United States. 
(§ 8402, subd. (a)(4); Estate of
Heath (2008) 166 Cal.App.4th 396, 400-401; Estate of Damskog, supra,
1 Cal.App.4th at p. 80.)

Perhaps
recognizing her ineligibility to serve as administrator, Erika initially
attempted to nominate Schramm.  As of the
June 2012 hearing, section 8465 provided in relevant part:  “(a) The court may appoint as administrator a
person nominated by a person otherwise
entitled to appointment . . . .  The
nomination shall be made in writing and filed with the court.  [¶] 
(b) If a person making a nomination for appointment of an administrator
is the . . . parent . . . of the decedent, the nominee has priority next after
those in the class of the person making the nomination.”  (Stats. 2001, ch. 893, § 55, italics
added.)  Had she been a United States
resident, Erika’s nomination would have had priority vis-à-vis any other
petitioner for the appointment.  But under
the applicable version of section 8465, Erika was not a “person otherwise
entitled to appointment” and was therefore ineligible to nominate an
administrator.  (Estate of Damskog, supra,
1 Cal.App.4th at p. 78-81.)href="#_ftn4"
name="_ftnref4" title="">[4]

Given
the ineligibility of Erika (and, for the same reasons, Wolfgang) to act as
administrator or nominate someone else as administrator, the public
administrator had priority to act as administrator in this case had it sought
to do so.  (§ 8461, subd. (p); see >Estate of Lewis (2010) 184
Cal.App.4th 507, 514 [“in the absence of a finding that” a person of
higher priority “was not competent to act as personal representative, the court
lacked statutory authority to appoint the public administrator”].)  In seeking his own appointment, Tice is
merely “[a]ny other person” (§ 8461, subd. (r)), the lowest priority
possible.  But the public administrator
repeatedly declined to act as administrator. 
Noroski contends on appeal that the court erred by refusing to compel
the public administrator to serve in this case over its objection and pursuant
to Noroski’s nomination.href="#_ftn5"
name="_ftnref5" title="">[5] 

Obviously,
section 8461 does not contemplate that the public administrator will serve as
personal representative in every case in which there are no potential
representatives with higher priority. 
Section 8461 also lists categories of potential representatives with
lower priority than the public administrator (including “[c]reditors” and
“[a]ny other person”), a pointless legislative drafting exercise if the public
administrator were meant to act as a catchall for every estate without a
higher-priority representative.

Section
7620 sets forth the circumstances in which the public administrator must seek and/or
accept appointment.  “The public
administrator of the county in which the estate of a decedent may be
administered shall promptly:  [¶]  (a) Petition for appointment as personal
representative of the estate if no person having higher priority has petitioned
for appointment and the total value of the property in the decedent’s estate
exceeds one hundred fifty thousand dollars ($150,000).  [¶] 
(b) Petition for appointment as personal representative of any other
estate the public administrator determines is proper.  [¶] 
(c) Accept appointment as personal representative of an estate when so
ordered by the court, whether or not on petition of the public administrator,
after notice to the public administrator as provided in Section 7621.”  (§ 7620; see also § 7621, subd. (b)
[“Appointment of the public administrator may be made on the court’s own
motion, after notice to the public administrator”].)

Noroski
did not claim, let alone establish with evidence, that $150,000 was the actual
value of the estate (indeed, to do so would be to argue against his position on
the merits of litigation adverse to him). 
(§ 7620, subd. (a).)  And the
public administrator, in its discretion, did not determine a petition was
otherwise proper.  (§ 7620, subd.
(b).)  Thus, Noroski is left to argue (without
any supporting case authority) that the court was required to appoint the
public administrator pursuant to sections 7620, subdivision (c), and 7621,
subdivision (b), over the public administrator’s objection.  We disagree. 
The court did not abuse its discretion by declining to appoint the
public administrator.

 

>The Court Had Discretion to Appoint Tice as
Administrator

As
to Tice, Noroski claims a conflict of interest eliminates him from
consideration as administrator.  Tice,
who worked as an attorney for Catanzarite in the past, was represented by
Catanzarite in his petition for letters of administration.  As part of the petition, Tice (and Schramm
before him) vowed to pursue litigation on behalf of the estate against Noroski
and others.  At the same time,
Catanzarite represented Erika and Wolfgang in this probate action (in the
petition to nominate Schramm as well as the objections to Noroski’s petition)
and in other litigation against Noroski, including one case Noroski claims is
directly adverse to the estate because it was brought by dental patients
against the dental practice run by Noroski and Ulrike.  Noroski argues that the taint from the
Catanzarite firmhref="#_ftn6" name="_ftnref6"
title="">[6]
plus Tice’s apparent intention to pursue Noroski in litigation disqualify Tice
from serving as administrator.

Noroski
cites the following statutory authority in support of his position.  “[A] person is not competent to act as
personal representative in any of the following circumstances:  [¶] . . . [¶]  (3) There are grounds for removal of the
person from office under Section 8502.” 
(§ 8402, subd. (a).)  Section 8502
provides:  â€œA 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.”  Noroski does not provide specific arguments
as to how Tice has violated any of these proscriptions.

Noroski
also quotes snippets from several cases in his briefs to support his
argument.  (See Estate of Hammer (1993) 19 Cal.App.4th 1621, 1637 [“An
executor is an officer of the court and occupies a fiduciary relation toward
all parties having an interest in the estate”]; Estate of Effron (1981) 117 Cal.App.3d 915, 929 [“Generally,
the executor’s attorney may not represent a beneficiary of an estate in a
controversy with other beneficiaries”]; Morales
v. Field, DeGoff, Huppert & MacGowan (1979) 99 Cal.App.3d 307, 318
(Morales) [“Whether the attorney for
an administrator of the estate may act for one of the heirs as against the
other heirs in an adversary proceeding relating to the property of the estate
depends on the circumstances of the particular case, and whether there is any
conflict between the interests of the estate and those of the heir in respect
to the matter involved”]; Estate of Cole
(1966) 240 Cal.App.2d 324, 331 [court may “remove a personal representative who
has an interest in the assets of the estate, either directly as a claimant or
as a representative of a claimant, and who
performs acts with relation thereto which are inimical to the rights and
interest of the heirs and creditors”].) 


But
Noroski does not actually attempt to apply the holdings of these cases to the
facts in this case.  Any attempt to do so
would illustrate their lack of applicability. 
In Estate of Hammer, the
appellate court held an executor of a will should have been removed because he was
the ex-husband of the sole beneficiary of the will, he failed to perform his
statutory duties, he breached his fiduciary duty by advancing his “own
self-interest at the expense of the estate and the estate’s beneficiary,” and
he continued “to assert a claim to the ‘chief asset of the estate’” (the
bequest to his ex-wife) by way of an alleged oral agreement.  (Estate
of Hammer, supra, 19
Cal.App.4th at pp. 1626, 1635-1643.) 
There is no claim here that Tice is actually claiming an interest in the
assets of the estate or has failed to perform specified duties as personal
representative.  (See also >Estate of Guzzetta (1950) 97 Cal.App.2d 169, 171-173 [court rightly
removed administrator of will who would have been sole heir because she sought
to attack will at expense of other beneficiaries].) 

In
Estate of Effron, the beneficiaries
of a will unsuccessfully sought to remove a bank executor because it refused to
fire its attorneys upon the beneficiaries’ request.  (Estate
of Effron, supra, 117
Cal.App.3d at pp. 928-930.)  The
beneficiaries took umbrage at the statutory fees charged by the attorneys, an
allegedly unnecessary delay in the case, and allegedly rude behavior toward
beneficiaries.  (Id. at pp. 920, 928-930.)  In
affirming the trial court’s denial of beneficiaries’ application, the appellate
court observed that beneficiaries had not identified “any act of waste,
embezzlement, mismanagement, fraud, or wrongful neglect.  Certainly, however, hostile acts and adverse
interest alone may suffice as grounds for removal for the protection of the
estate.  [Citations.]  However, the executor’s right to administer
the estate is generally strong enough to permit him to serve even though his
interests may conflict with other persons’ interest in the estate.  ‘The test is probably whether the conflict of
interest is with the estate itself rather than with other persons who may be
interested in the estate.’ 
[Citation.]  The probate court, in
examining the facts of a case, must decide whether the circumstances warrant
the removal of an executor, and, except for clear abuse, the court’s ruling
will not be interfered with on appeal.” 
(Id. at p. 930.)  All this case illustrates is the deference
that should be shown to the trial court’s decisions pertaining to personal
representatives who have not taken adverse action against the interests of the
estate as a whole.

>Morales is completely inapplicable to
the procedural posture of this case, in that it affirmed the dismissal of a
complaint for damages filed by a beneficiary of a trust against a law firm that
represented the trustee and executor of a related will.  (Morales,
supra, 99 Cal.App.3d at pp. 311-312,
318-319.)

Finally,
in Estate of Cole, the trial court
abused its discretion by removing a bank as executor of a will.  (Estate
of Cole, supra, 240
Cal.App.2d at pp. 325, 332.)  This
case involved multiple beneficiaries of the respective wills of a married
couple, who both died in the same year (the wife after the husband).  (Id.
at pp. 326-327.)  A dispute arose as to
whether wife had “waived her community rights and elected to take the benefits
of her husband’s will.”  (>Id. at p. 327.)  The consequences of this determination
mattered because wife’s will did not include some of the beneficiaries named by
husband.  (Ibid.)  Those named in wife’s
will requested that the bank (which was acting as executor for both estates) be
removed as executor of wife’s estate because of “an interest adverse to its
position as executor” of wife’s will (i.e., its interest as executor of
husband’s will, which created duties toward the nonoverlapping beneficiaries).  (Id.
at p. 328.)  The trial court abused its
discretion by removing the bank as executor. 
(Id. at pp. 328, 332.)  The bank carried out its duties by creating
an inventory of all assets and raising the competing claims of the different
beneficiaries with the probate court.  (>Id. at pp. 329-330.)  “[A]n adversity of interest does not, in
itself, disqualify a person named in a will from serving as executor as there
is no statute authorizing disqualification on that ground.”  (Id.
at p. 330.)  The court resolved the
disputes and ambiguities.  (>Id. at p. 331.)  It was not “shown that the bank has committed
any acts in any way inimical to the rights and interests of any beneficiaries
or claimants under [wife’s] will nor any reason to question the propriety of the
bank’s future conduct.”  (>Id. at pp. 331-332.)  Thus, a personal representative is not
required to be free from all potential conflict, only to deal fairly with the
estate.

Having
reviewed the record in light of statutory and case authorities, we conclude the
court did not abuse its discretion in appointing Tice.  (See Baker
Manock & Jensen v. Superior Court (2009) 175 Cal.App.4th 1414,
1423 [“the underlying issue for conflict of interest purposes is whether the
executor has sought to advance his or her self-interest ‘at the expense of the
estate,’” “not whether a person . . . in good faith contests a claim against
the estate made by another person, whether a beneficiary or a stranger to the
estate”].)  The parties are in agreement
that Ulrike’s estate currently consists of nothing of substance except
litigation claims of an unknown value (largely against Noroski).  In such a scenario, it defies logic to
suggest that Tice cannot serve because he has expressed an interest in pursuing
litigation against Noroski.  If an
administrator were not willing to pursue the litigation against Noroski, the
assumption of duties as administrator of Ulrike’s estate would be pointless and
harm the estate to the extent the litigation claims have value.  Nowhere does Noroski explain why an
administrator must wait until after their appointment to determine whether
seeking appointment as administrator would be worthwhile.href="#_ftn7" name="_ftnref7" title="">[7]

Noroski
suggests this is a case in which the administrator is unfairly favoring one
beneficiary of the estate over another.  Noroski
stated in his trial court submissions that he was entitled to “inherit” any and
all of Ulrike’s property because of an alleged oral agreement he entered into
with Ulrike before her death.  (See >Marvin v. Marvin (1976) 18
Cal.3d 660, 665 (Marvin) [courts
may enforce contracts between or apply equitable remedies to provide support to
unmarried cohabitants].)  Noroski claims
an administrator should not blithely dismiss the effect of this >Marvin agreement.  But the alleged existence of an oral >Marvin agreement would make Noroski a
claimant against the estate, not an heir to the estate.  (Byrne
v. Laura (1997) 52 Cal.App.4th 1054, 1064 [“A Marvin agreement is enforceable against an estate when one of the
parties to the agreement dies”].)href="#_ftn8"
name="_ftnref8" title="">[8]  This dispute will ultimately be resolved by a
court rather than Tice, but Tice was not required to remain agnostic as between
the statutory heir and an individual who claims the existence of an oral >Marvin agreement (after having earlier
falsely claimed under penalty of perjury that he was the decedent’s spouse).

 

DISPOSITION

 

The order is
affirmed.  Tice shall recover costs
incurred on appeal.

 

 

 

                                                                                    IKOLA,
J.

 

WE CONCUR:

 

 

 

BEDSWORTH,
ACTING P. J.

 

 

 

ARONSON, J.