Estate of Simone

Filed 6/22/06 Estate of Simone CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 EIGHT

APPEAL from an order of the Los Angeles County Superior Court, Ronald Hauptman, Temporary Judge (Pursuant to Cal. Const., art. VI, § 21). Dismissed.

Law Offices of Larry D. Lewellyn and Larry D. Lewellyn; Mazur & Mazur, Janice R. Mazur and William E. Mazur, Jr., for Petitioner and Appellant.

Weinstock, Manion, Reisman, Shore & Neumann and Blake Alexandra Rummel; Law Offices of Randel L. Ledesma and Randel L. Ledesma for Objector and Respondent.

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SUMMARY

This appeal challenges an order appointing an administrator for the estate of jazz artist Nina Simone. We conclude events subsequent to the issuance of the challenged order render the appeal moot, and no effective remedy is available. The appeal must be dismissed.

PROCEDURAL AND FACTUAL BACKGROUND

Simone died April 21, 2003. She left a last will and testament (will), dated October 15, 1992, and a codicil, dated May 7, 1993, which made bequests to her daughter, respondent Lisa Simone Kelly, Kelly's son, Simone's brother Carrol Waymon, and a few friends. The bulk of Simone's estate was to be used to establish a charitable trust for the musical education of African children. The will appointed Simone's friend, financial consultant and tax-preparer, appellant Marquette (Mark) Penniman, as executor of the will, and gave him the right to designate his successor. The will also appointed Penniman trustee of the trusts established, except for the charitable trust.

On May 23, 2003, Penniman filed a petition for probate, which included copies of the will and codicil.[1] Penniman also was granted special letters of administration to manage the estate pending appointment of a permanent representative.

On August 1, 2003, Kelly filed objections to the petition on the ground that Simone's nurse caretaker claimed Simone revoked her will before she died. Kelly also filed a petition for letters of administration and authorization to administer her mother's estate, based on the caretaker's claim her mother died intestate. The matter was set for trial in December 2003.

Penniman's deposition and a document production were scheduled for October 21, 2003. Penniman appeared for his deposition. However, Penniman failed to provide the documents requested in the deposition notice, gave less than two hours of deposition testimony before lunch, and refused to return to the deposition after lunch. Kelly filed a motion to compel Penniman's further deposition and production of the requested documents. The motion was granted, and Penniman was ordered to appear for deposition and produce the requested documents by November 17, 2003. Penniman was further deposed on November 18, 2003. He did not produce the documents the court had ordered, but his attorney promised to make them available to opposing counsel. Two days later, however, Penniman's attorney sent a letter to Kelly's attorney stating she would not produce the documents after all.

On December 15, 2003, the parties appeared before Commissioner Ronald Hauptman for trial on Kelly's objections to Penniman's petition. His courtroom was busy and, the following day, the matter was transferred to Judge Elizabeth A. Grimes in a general civil trial department. In advance of the trial, the parties stipulated that the will and codicil were validly executed, and that the sole dispute was whether Simone had revoked either document before she died. After a day of testimony, the matter was taken under submission. On December 18, 2003, the court ruled Simone had not revoked her will or codicil prior to her death.

On December 19, 2003, Kelly filed a document entitled â€