Estate of Gootkin

Filed 6/22/06 Estate of Gootkin 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 a judgment of the Superior Court of Los Angeles County, Lorna Parnell, Judge. Affirmed.

Law Offices of Cynthia Beckwith and Cynthia Beckwith for Petitioner and Appellant.

Schwartz, Wisot & Wilson, Bruce E. Schwartz and Robin B. Ratner for Claimant and Respondent.

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In this probate matter, appellant Arthur Lawrence contends that his sister, respondent Deena Brand, is holding property that belongs to the estate of their deceased father, George Gootkin. Appellant is the administrator of the decedent's estate.

To further his goal of recovering the contested property and having it transferred to the probate estate, appellant filed a Probate Code section 850 petition.[1] Roberta Gunnell, the decedent's granddaughter (Roberta), joined in that petition and also filed a section 850 petition of her own. She is the daughter of the decedent's other child, Marvin Lawrence.

After a bench trial on the petitions, the trial court determined that appellant and Roberta had failed to show, by the clear and convincing evidence required by Evidence Code section 662, that when the decedent executed grant deeds conveying certain property to Deena Brand, he did not have the intention of conveying the property in fee simple.[2] The court further determined that appellant and Roberta failed to file their section 850 petitions with five years of the death of the decedent and therefore the statute of limitations in Code of Civil Procedure section 318 also precluded them from prevailing on their petitions.[3] The court issued a judgment in favor of Brand and against appellant and Roberta on the section 850 petitions.

Now on appeal, appellant contends the trial court erred in several ways when it found that the instruments used to convey title to the property were grant deeds and not mortgages. Appellant further contends the five-year statute of limitations does not bar his claims. However, because appellant has not presented this court with briefs that conform to basic rules of appellate review, we find he has waived the issues he raises, and we will therefore affirm the judgment.[4]

BACKGROUND OF THE CASE

1. Summary of the Family Members

The decedent, George Gootkin, was a widower who passed away on September 26, 1988. He was survived by three children, appellant Arthur Lawrence, respondent Deena Brand, and Marvin Lawrence. Marvin passed away in March 1993. As noted above, Marvin's daughter Roberta Gunnell is one of the section 850 petitioners.

The parties stipulated that appellant has been licensed to practice law since 1959 but was inactive from 1982 to 1992, and was an active real estate developer. They further stipulated that respondent Brand has been a real estate broker for more than 40 years and is the registered broker at Brand Realty.

2. Appellant's Petition for Letters of Administration and Probate of a Holographic Will, and Brand's Petition for Probate of a Copy of a Formal Will

On April 8, 2002, appellant petitioned the probate court for probate of a 1971 holographic will, and authorization to administer the decedent's estate. Brand filed written opposition to the petition, asserting the estate has no assets, appellant has no standing for the appointment because the decedent executed a formal will that appoints Brand as executor, and the doctrine of laches bars the petition because the petition was filed more than 13 years after the decedent died. The holographic will was admitted to probate, appellant was appointed administrator of the estate on June 21, 2002, and letters of administration with will annexed were issued that same day.

Thereafter, Brand filed a petition for probate of a copy of a formal will dated December 6, 1966. She stated that after searching for the original of that will she was not able to find it.

3. The Section 850 Petitions

Appellant and Roberta filed a section 850 petition together in July 2002. Then over the course of the next 14 months, each individually filed a first amended section 850 petition. Finally, appellant filed a second amended section 850 petition in which Roberta joined. The following matters were alleged in one or more of the petitions.

a. Overview of the Allegations

The position taken in the petitions is that Brand, as a trustee and/or agent of the decedent's estate, holds legal title to and possesses three parcels of real property in Rosemead, California in Los Angeles County (the River Avenue, Garvey Avenue, and Bartlett Avenue properties) and one parcel of real property in Desert Hot Springs, California in Riverside County (the Dillon Road property). Also as trustee and/or agent of the decedent's estate, Brand possesses personal and intangible property that is claimed by the estate, including furniture and money. At the time of his death, the decedent was the beneficial owner of this real, personal and intangible property, and legal and beneficial ownership and possession of the property are claimed by the decedent's estate. It was in the fall of 1968 that the decedent transferred legal title to the real property to Brand, he did so for safekeeping purposes only, and he retained beneficial ownership of the property. Since his death, Brand has fraudulently asserted that she has legal and beneficial title to the property, to the exclusion of appellant and Roberta, and has also excluded them from sharing in the revenue the properties produce.

b. Additional Allegations

Roberta and appellant alleged that the decedent transferred his property to Brand to keep it safe from the reach of Inglewood Thrift and Loan, which had loaned money to appellant. The decedent personally guaranteed the loan, appellant defaulted on it, and both men received letters from the lender demanding that the loan be repaid. The lender sued the decedent and appellant, and foreclosed on appellant's properties as a means of repaying to itself the money it loaned to appellant, thus exonerating the personal guarantees of the decedent.

In 1969, the decedent told appellant and Roberta's father, Marvin, that (1) he transferred the properties to Brand solely to keep them safe from any judgment that the thrift and loan might obtain against him and (2) Brand promised that she would reconvey the properties to him upon his request or would equally divide the properties among herself, appellant and Marvin if she still held them at the time decedent died. Brand never asserted to the decedent, appellant or Marvin, prior to the decedent's death, that the transfer of the properties to her was intended as a gift to her.

After the decedent died, although appellant and Marvin repeatedly asked Brand to divide the properties equally among herself and them, she would always answer that it was not an appropriate time to do that. She never told them that it was her intent to keep the properties for herself, and it was not until early 2002, when appellant saw a â€