Filed 9/12/17 Estate of Forestiere CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Fresno County. Debra J. Kazanjian, Judge.

Andre Forestiere, in pro. per., for Objector and Appellant.

Gilmore Magness Leifer and David M. Gilmore for Petitioner and Respondent.

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Andre Forestiere (Andre), acting in propia persona, appeals from the probate court’s 2017 final order distributing the estate of his mother, Lorraine Forestiere (Lorraine), to his father, Rosario Ricardo Forestiere (Rosario), who was the sole beneficiary of her will. We affirm.

FACTS AND PROCEDURAL HISTORY

This is Andre’s second appeal from orders of the probate court in the proceedings regarding Lorraine’s estate. The factual recitation below is taken in part from our opinion in the prior appeal, Estate of Forestiere (Feb. 26, 2106, F070300) [nonpub. opn.].

Lorraine died on September 21, 2012. She and Rosario were married at that time, but living separately. Andre was one of their six adult children.

Lorraine’s estate consisted of a home on Robinwood Lane, appraised at $120,000, and a Ford Mustang, appraised at $2,000. The Forestiere family had built a complex of underground rooms, passages, and gardens known as the Forestiere Underground Gardens (the Underground Gardens), but at the time of Lorraine’s death Rosario was the sole owner of this property and Lorraine had no separate or community property interest in it.

When Lorraine died, Rosario and Andre believed she was intestate. In November 2012, however, a law firm lodged with the probate court a will signed by her in 1965. The will devised to Lorraine’s brother certain real property, in which Lorraine no longer had an interest at the time of her death, and left the remainder of her estate to Rosario. The will named Rosario as executor.

Andre opposed Rosario’s petition to administer the estate. In papers filed in support of his opposition, Andre alleged that Rosario committed elder abuse against Lorraine in 2008, with the result that she agreed, in fear, to exchange her community property interest in the Underground Gardens for his interest in the Robinwood Lane house. Andre argued that the probate court should find elder abuse took place and should treat Rosario, pursuant to Probate Code section 259, as if he had predeceased Lorraine, thereby disinheriting him.

On June 26, 2014, the probate court conducted a hearing, rejected Andre’s opposition, and granted Rosario’s petition. There is no reporter’s transcript for the hearing. The probate examiner’s notes from the hearing stated, among other things, that the Underground Gardens were not an asset of the estate and that Andre’s elder abuse claim would properly be addressed in an action in civil court.

Andre appealed. We affirmed the probate court’s order on February 26, 2016. !(CT 22-23)! Our opinion stated that, with no reporter’s transcript and no statement of decision, the record was inadequate to conduct any meaningful appellate review.

Rosario filed in the probate court, on March 24, 2016, a petition for the final distribution of the estate. Andre filed objections on June 9, 2016. In his papers supporting the objections, he declared that there were two cases pending in superior court that were related to the probate proceedings, one in which Andre’s siblings and Rosario were defendants and another in which they were cross-defendants. The parties’ briefs in this appeal indicate that these are both civil actions in which Andre asserted his elder abuse claim and sought to have Rosario disinherited. In one action, Andre asserted the claim as a plaintiff, and in the other, initiated by Rosario, he asserted it as a cross-complainant. Andre’s objections argued that the probate court should abate the probate proceedings pursuant to Probate Code section 854[1] to allow the civil actions to proceed.

Andre’s objections further stated that the probate court should delay ruling on Rosario’s petition for final distribution to enable him to conduct discovery and file a variety of papers. Andre wanted to seek evidence that Rosario removed and concealed documents from Lorraine’s house. He also requested an order that Rosario identify documents he removed and cooperate with discovery on that subject. The probate court held a hearing on the petition for final distribution on June 9, 2016, the same day Andre submitted his objections. In its minute order, the court stated that it considered all the papers before it, including Andre’s objections and supporting papers, even though Andre had not submitted them until that morning. The court stated that it also had considered Andre’s request for a written statement of decision, which he made orally at the hearing.

The court granted the petition for final distribution. The minute order ruled that the request for a statement of decision was untimely and insufficiently specific. There is no reporter’s transcript of the hearing.

Andre filed a written request for a statement of decision on June 20, 2016. Rosario filed an opposition to the request.

The court issued a written order for final distribution on June 30, 2016. The order stated that the court had considered Andre’s objections, but did not otherwise discuss them. The court issued a separate order the same day denying Andre’s request for a written statement of decision.

DISCUSSION

Andre argues that the probate court abused its discretion by not ruling on his request for an abatement, and that this failure made the court’s order ambiguous. Andre has not shown any failure to rule or any ambiguity, however. The court stated that it had considered the issue, and then it proceeded to issue its final distribution order instead of delaying it as Andre had requested. That Andre’s request for an abatement was thus denied is the only reasonable interpretation of the court’s order. If there was anything in the record to show otherwise, Andre has not presented it to us. “On appeal, we presume that a judgment or order of the trial court is correct, ‘“[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.”’” (People v. Giordano (2007) 42 Cal.4th 644, 666.)

To the extent Andre may be suggesting a probate court is required to produce written findings to document its reasons for overruling objections to a proposed distribution, he is mistaken. There is no such requirement. (In re Lucas’ Estate (1943) 23 Cal.2d 454, 460, 468.)

Andre argues that if the request was denied, the ruling was erroneous. The lack of a record of the oral proceedings is sufficient reason on its own to reject this contention. In the absence of that record, if any matters could have been presented in the court below that would have authorized the order complained of, we must presume they were presented. (Foust v. San Jose Const. Co., Inc. (2011) 198 Cal.App.4th 181, 186-187.)

The partial record before us indicates that such matters could have been presented. Indeed, the record goes further than this and affirmatively shows that the relief Andre sought was not available on the grounds upon which he argued. Section 854, the basis of his abatement claim, did not apply to the probate petition that was before the court. Section 854 provides:

“If a civil action is pending with respect to the subject matter of a petition filed pursuant to this chapter and jurisdiction has been obtained in the court where the civil action is pending prior to the filing of the petition, upon request of any party to the civil action, the court shall abate the petition until the conclusion of the civil action. This section shall not apply if the court finds that the civil action was filed for the purpose of delay.”

Although section 854 states that it can be a basis for abatement of a petition “filed pursuant to this chapter,” the section actually is not part of a division of the Probate Code called a “chapter.” It has been held that this word must be construed instead as “part,” i.e., part 19 of division two of the Probate Code, in which the section is included. (Bellows v. Bellows (2011) 196 Cal.App.4th 505, 513.) Part 19 consists of sections 850 to 859, which provide procedures and remedies for a variety of situations involving estates, trusts, conservatorships, and the like, and in which a conveyance or transfer of property is appropriate. Proceedings for the administration and distribution of decedents’ estates do not take place pursuant to part 19 of division two. They fall under division seven. Rosario’s petition for final distribution was not a petition filed pursuant to division two, part 19, so it could not be abated under section 854.

Even if section 854 had applied to a request for an abatement of Rosario’s petition, Andre would not have been entitled to such an abatement because (again, so far as the limited record discloses) neither of the civil actions in favor of which he sought abatement was “a civil action … pending with respect to the subject matter of” Rosario’s petition for final distribution. (§ 854.) The subject matter of Rosario’s petition was Lorraine’s estate, which consisted of her house and her car. As Andre says in his reply brief, the subject matter of his civil actions is “the interests of Lorraine Forestiere in the Underground Gardens.”

The outcome of Andre’s civil actions would not, regardless of who wins, affect the distribution of the house and car. Andre seeks in those actions to disinherit Rosario pursuant to section 259, but no reason appears why a remedy under section 259 would affect the house and car. Section 259 provides that, upon proof that a person has committed elder abuse, the court shall deem the person to have predeceased the victim with respect to “any property, damages, or costs that are awarded to the decedent’s estate in an action” brought to prove the abuse. (§ 259, subd. (c).) By Andre’s own account, the goal of his claims under section 259 is to deprive Rosario of Lorraine’s former interest in the Underground Gardens. That goal has nothing to do with the house and car that were distributed pursuant to the petition Andre sought to have abated.

Andre contends that the probate court erred when it denied his request to delay its final distribution order to give him time to conduct discovery regarding Rosario’s alleged misconduct in connection with Lorraine’s former interest in the Underground Gardens. That discovery would be in support of the civil actions, however. As there were no grounds for abating the petition in favor of the civil actions, there was no reason to delay ruling on the petition while discovery in those actions proceeded.

Andre also contends that the probate court erred by awarding attorneys’ fees in the probate case, instead of waiting to see who prevails in the civil actions regarding elder abuse. Again, as there were no grounds for abating the petition in the probate court, there was no reason to delay the decision on attorneys’ fees arising from it.

Finally, Andre’s briefs contain many references to what he believes is “fraud on the court” by Rosario, arising from purported efforts to make the probate court or this court believe Andre’s claims in the civil actions have been finally determined against him, when in reality he has appeals pending. We see no reason to believe that anyone has been misled. We are aware of Andre’s other appeals in this court, and nothing in this opinion rests on any views regarding the status or merits of his claims in the other litigation.

DISPOSITION

The order for final distribution is affirmed. Costs on appeal are awarded to respondent Rosario Forestiere.

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SMITH, J.

WE CONCUR:

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HILL, P.J.

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DETJEN, J.