Filed 12/20/17 Estate of Ottovich CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Karen Rayl, Harvey Ottovich, and Randy Ottovich (collectively appellants) appeal from orders of the probate court removing them as the executors of the estate of their father, Jack Ottovich, and appointing a special administrator.[1] We affirm.

Background

In 1996, Jack was appointed conservator of the estate of Francis Ashley, a friend. He duly posted a bond, issued by Seaboard Surety Company, to guarantee his performance as conservator. Five years later, in 2001, Jack died. The following year, three of his children—Karen, Harvey and Randy—were appointed executors of his probate estate.

Three years after Jack’s death, in 2004, the probate court found, in the conservatorship proceeding, that Jack had breached fiduciary duties to the conservatee and imposed a surcharge, jointly and severally, on his estate, on Karen, Harvey and Randy (as the estate’s executors), and on Seaboard.[2] (Conservatorship of Estate of Ashley (Feb. 23, 2007, A109085)).[3] Four years later, this court (Division Three) affirmed the surcharge in an unpublished opinion. (Ibid.) Thereafter, when the executors failed to pay the surcharge from estate assets, Seaboard did so under the bond.

Seaboard then set about trying to recoup its payout from Jack’s estate. Frustrated with the executors’ lack of action, Seaboard finally filed a petition for an order compelling the executors to file an inventory and appraisal. Several months later, Seaboard filed an amended petition, adding a request for an accounting. Over objections by the executors and by Mark Ottovich (a brother of the executors), the court ordered the executors to file an inventory and appraisal, and an accounting, and awarded attorney fees to Seaboard.

Three months later, Karen filed an inventory and appraisal, stating the estate had “0” value. Seaboard objected, asserting Jack had owned, and thus his estate now owned, two properties in San Lorenzo, one located at 15600 Lorenzo Avenue and the other at 15601 Washington Avenue. The probate court ordered the executors to file a corrected inventory and appraisal. No such appraisal was ever filed.

In the face of the executor’s refusal to comply with the probate court’s orders and continued insistence that the real property was not a part of Jack’s estate, Seaboard filed a petition, pursuant to Probate Code section 850 (Section 850 petition), to quiet title to the San Lorenzo properties in the estate. Mark was named as a party, since he claimed ownership of the Lorenzo Avenue property. After many continuances, the court commenced an evidentiary hearing spanning a number of days over the course of many months. In January 2015, the court issued a notice of intended decision, ruling that the properties are assets of the estate. The court did not issue a statement of decision, however, for another nine months, until September 21, 2015, largely because the executors and Mark filed challenges to the judge, which we discuss in more detail shortly.[4] Appellants have also appealed the quiet title ruling, which we affirm in a separate opinion issued the same date as the instant opinion (Seaboard Surety Company v. Ottovich et al. (Dec. 20, 2017, A147431) [nonpub. opn.]).

In the meantime, in April 2015, while appellants were objecting to the proposed statement of decision on the Section 850 petition and challenging the judge, Seaboard filed the petition at issue here to remove the executors and appoint a successor administrator of Jack’s estate. Mark was not named in any capacity in connection with this petition, as he was not an executor of the estate. Seaboard alleged numerous grounds for removal, including failure to timely file an inventory and appraisal, failure to file an accounting, failure to timely close the estate or file status reports explaining why it had not been closed, and waste, embezzlement, and mismanagement of estate assets.

Although not a party to the removal petition, Mark filed a challenge under Code of Civil Procedure section 170.3 against the judge (Judge Robert Freedman) who had just heard the Section 850 petition and who was slated to hear the removal petition, specifying Code of Civil Procedure section 170.1, subdivision (a)(6) as the ground for disqualification. Judge Freedman issued an order partially striking and answering the challenge. Mark next requested, purportedly on behalf of the executors, an evidentiary hearing on the removal petition.

The executors then filed a declaration by Mark in support of the challenge to Judge Freedman, as well as an objection to Judge Freedman’s verified answer. The executors claimed Judge Freedman had “a significant financial interest in the outcome of the proceeding,” which resulted in “demonstrated actual bias in prior proceedings on at least 21 instances” and “a complete lack of impartiality” because Judge Freedman’s wife worked for the Travelers Indemnity Company, the parent company of Seaboard. The executors speculated she “may receive stock or stock options in her employer.” Judge Freedman construed these documents as another Code of Civil Procedure section 170.3 challenge (also on Code Civ. Proc., § 170.1, subd. (a)(6) grounds), and issued an order striking all but one allegation and answering appellants’ challenge. An assigned judge from Santa Clara County (Judge McGowen) thereafter declined to set the Code of Civil Procedure section 170.3 challenges for an evidentiary hearing and denied them, ruling the executors had failed to meet their burden to demonstrate significant financial interest, bias, or prejudice. In the meantime, Harvey and Mark filed another Code of Civil Procedure section 170.3 challenge (on Code Civ. Proc., § 170.1, subd. (a)(7) grounds) to Judge Freedman, which Judge Freedman struck. Harvey and Mark then filed a writ petition in this court, which we denied on July 16, 2015. (Ottovich et al. v. The Superior Court of Alameda County (July 16, 2015, A145432).) They also unsuccessfully petitioned for review.[5] (Ottovich v. Superior Court (Aug. 26, 2015, S228151) [review denied].)

The hearing on the removal petition had been scheduled to start in June 2015. However, none of the executors appeared, and the court continued the matter. After several additional continuances, the hearing finally commenced on August 26, 2015. Karen and Mark were present; Randy and Harvey were not.[6]

At Seaboard’s request, the court took “judicial notice of the entire content of the file in this proceeding,” which included all prior court orders directing the executors to prepare and file inventories and accountings, and with which they had failed to comply. It also included the testimony that had been given during the hearing on the Section 850 petition. The court additionally took judicial notice of a foreclosure notice issued in connection with a mortgage on the Lorenzo Avenue property.[7]

The executors objected to all the matters judicially noticed as hearsay, and when Seaboard indicated it was submitting on its petition and the judicially noticed court files, the executors moved for judgment on grounds Seaboard had made no evidentiary showing and thus had not carried its burden to show removal was warranted. The court overruled their objections and denied their oral motion for judgment, ruling the “entire file” provided “more than adequate proof to entitle [Seaboard] to [the] relief requested.”

The executors then called Mark and Karen as witnesses.

Mark testified (despite the court’s tentative decision in the Section 850 proceeding) that the Washington Avenue property was “completely” in Harvey’s name and he (Mark) owned the Lorenzo Avenue property, which was in the process of a loan modification. He claimed there was no danger of foreclosure on the Lorenzo Avenue property because he had cash on hand to pay the default “at any time.” When asked by the executors’ attorney if, as a condition of not removing the executors, he could “show proof” of this, Mark claimed that was “Not a Problem” and he had “$15,000 in cashier’s checks, approximately. Harvey’s got $15,000 in his account. . . . And that doesn’t even count [the] other means of access to money that I don’t need to divulge.” Mark also testified no updated inventory and appraisal was filed in response to the probate court’s order because Karen had concluded it made “no sense to file something that’s zero.” [8]

Karen likewise testified that she had concluded it was not necessary to file a new accounting or inventory and appraisal, despite being ordered to do so, because the estate had “zero” assets. She also admitted to transferring the Washington Avenue property from the estate to Appellants and Mark, as joint tenants, and then to M.O.R.E. Partners, LLC (Mark’s company), without seeking court approval to do so. She claimed a will and a purported 2004 stipulation filed in her mother’s estate (her mother, Jeanette, had died a little over two months before Jack) provided the requisite authority for the transfer.[9] She additionally admitted that she never filed an accounting and never maintained any record of expenses related to either of the San Lorenzo properties or rents collected from them.[10]

After Karen finished testifying, the court reiterated on the record that it had received no request from Randy or Harvey to appear telephonically. It then asked counsel for the executors if he wished to make an offer of proof as to what they would have testified to, had they appeared. While counsel declined to make a detailed offer, he did state their testimony “would be along the lines of what [Karen] testified to . . . their state of mind with regard to sanctions, the accounting, the inventory and appraisal and the transfer of the property into the LLC. [¶] . . . [M]y offer of proof would be that they would testify in conformity with what [Karen] testified to.” Counsel for Seaboard accepted this offer, as did the court.

In closing argument, the executors argued any testimony from earlier proceedings, and particularly in connection with the Section 850 petition, was hearsay and not evidence in the instant proceeding, the alleged dereliction of duties by the executors was based on conduct years earlier and as to which the statute of limitations for any breach of fiduciary duty claim had run, and they acted in good faith in transferring the San Lorenzo properties and not complying with court orders to file inventories and appraisals and an accounting. In Seaboard’s view, Jack’s children had opened probate proceedings so they could obtain title to estate assets for their own benefit and without regard to creditors’ claims, and the executors had consistently violated their legal obligations as such and had grossly mismanaged the estate and committed fraud. Seaboard urged the court to grant the removal petition and appoint a professional fiduciary to take over management of Jack’s estate.[11]

At the close of argument, the court indicated it was ready to rule on the removal petition, but noted that counsel for the executors had requested a statement of decision. Counsel agreed this was correct “[t]o the extent we’re entitled to one.”

The court then delivered its ruling, granting the removal petition on all grounds specified in the petition. The court stated that at the outset of the hearing, based on the prior proceedings, it had been concerned Karen might have been “victimized by her siblings.” But based on her testimony during the hearing on the removal petition, there was “no question” that she had been “equally complicit” in the efforts by her brothers to “defraud” the court and the creditors of the estate. And even if she had not been complicit, the court still would remove her for “failure to comply with the executors’ responsibilities, either individually or in collaboration with the co-executors.” Karen’s “testimony today establishes a willful disregard with the previous orders of Judge Morris and other judges who have participated during the long history of 13 years-plus, of this estate proceeding.”

The court directed counsel for Seaboard to prepare a statement of decision “consistent with this record.” It assured the executors they would have an opportunity to make any “legitimate” objections and asked counsel for Seaboard how long he needed to prepare a proposed statement. Seaboard responded it needed 10 days. The court then asked counsel for the executors how long he would need to respond, and counsel said the same, 10 days.[12] The court accordingly calendared the matter.

Seaboard duly filed a proposed statement on September 8, 2015.

Three days later, on September 11, the court issued a written order granting the removal petition. The court stated in its order that it did not recall that a timely request for statement of decision had been made, but if the court was in error, the parties were to submit the relevant portions of the reporter’s transcript showing a request. The court also stated it was not clear a statement was required on a removal petition. It additionally stated that, in any event, it adopted Seaboard’s proposed statement as its intended decision if there was a timely request and if a statement was required. The executors made no response. Thus, they did not supply those portions of the hearing transcript where they had requested a statement of decision, they did not provide any authority that a statement of decision was required, and they did not submit any objections to the tentative statement within the 10-day period they had agreed to on the record.[13]

Discussion

Judicial Notice of the Probate Court’s Own File

As we have recited, at Seaboard’s request, the probate court took judicial notice of its entire file in Jack’s probate proceeding, including the records pertaining to the Section 850 petition seeking to quiet title to the San Lorenzo properties in Jack’s estate. Appellants claim this was an abuse of discretion and the court erroneously relied on evidence (testimony and exhibits) adduced in connection with the Section 850 petition to decide the merits of the removal petition.[14]

The state of the law on judicially noticing court records was well summed up in Kilroy v. State of California (2004) 119 Cal.App.4th 140 (Kilroy): “ ‘ “Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” [Citation.] The court may in its discretion take judicial notice of any court record in the United States. (Evid. Code, § 451.) This includes any orders, findings of fact and conclusions of law, and judgments within court records. [Citations.] However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.’ ” (Id. at p. 145.)

Kilroy went on to explain that parties and courts have often mistaken a passage in Jefferson’s Benchbook (2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) Judicial Notice, § 47.2, p. 1757) as authority for the proposition that facts recited in judicially noticed documents such as orders, findings of fact and conclusions of law, and judgments may be considered as being true. (Kilroy, supra, 119 Cal.App.4th at pp. 146–148.) After an extensive discussion of the case law, the Kilroy court explained “factual findings in a prior judicial opinion are not a proper subject of judicial notice” to the extent notice is sought for the truth of the findings, rather than for the fact that the findings were made. (Id. at p. 148.) It also observed that the fact such findings were made is properly noticed, for example, for purposes of establishing res judicata or collateral estoppel. (Ibid.; see Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120–121 [“judicial notice of findings of fact does not mean that those findings of fact are true; it means only that those findings of fact were made”].)

Thus, to the extent the probate court took judicial notice of its entire file in Jack’s probate proceeding for the purpose of establishing that numerous proceedings and motions had been brought, and numerous rulings and orders had been made, the court acted well within its discretion. The record also indicates that that is essentially the purpose for which the probate court considered its own records—as establishing that the probate court (by various judges) had issued rulings and orders which the executors ignored.

We need not, and do not, decide whether the probate court properly took judicial notice of the evidence, and specifically the testimony of the executors, presented in connection with the Section 850 petition to quiet title to the San Lorenzo properties.[15] That prior testimony was, indeed, hearsay, and Seaboard did not identify any exception making it admissible, although it appears the admissions against interest exception might well have applied (Evid. Code, §§ 1220–1225, 1230), or the exception for prior court testimony by an unavailable witness (Evid. Code, § 1290 et seq.).

In any case, it is clear from the record, that the probate court grounded its decision on the removal petition on Karen’s testimony and on the offer of proof that Randy and Harvey would have testified as Karen did. Karen’s testimony not only dispelled any concern the court had that Karen had been “victimized” by her brothers, it also established that she was as complicit in the refusal to comply with probate court orders and the mismanagement of the estate as her brothers. Furthermore, it is clear that Karen’s and Mark’s testimony in connection with the removal petition was essentially the same as the executors’ and Mark’s testimony in connection with the Section 850 petition—they consistently maintained the executors were authorized to transfer the San Lorenzo properties out of their parents’ estates and that they acted in good faith at all times. In short, even if the probate court erred in taking judicial notice of the executors’ testimony in connection with the Section 850 petition, it plainly was not prejudicial.[16]

Appellants’ reliance on Conservatorship of Schaeffer (2002) 98 Cal.App.4th 159 (Schaeffer) is misplaced. In Schaeffer, the court received a report from a court-appointed investigator that stated Mr. Schaeffer needed a conservator but did not want his wife serving as such. (Id. at p. 161.) The report also contained negative opinions about Mrs. Schaeffer and was not served on any of the parties. (Ibid.) The Court of Appeal ruled the trial “court’s action[s] here amounted to an ex parte proceeding or private investigation by the court.” (Id. at p. 164.) The circumstances here are not remotely similar. Not only were appellants parties to the Section 850 petition which the court judicially noticed, but as we have discussed, the probate court did not ground its decision on the testimony in the earlier probate proceedings. Rather, it grounded its decision on the removal petition on Karen’s testimony and the offer of proof that Randy’s and Harvey’s testimony would be the same.

In sum, appellants have not shown any prejudicial error in connection with the probate court’s judicial notice of its own files in Jack’s estate probate proceeding.[17]

The Statement of Decision

We are at a loss as to appellants’ claim that the probate court “refused to provide [a statement of decision] at all.” As we have recited, while the court, in its written order, expressed doubt as to whether appellants had timely requested a statement and whether they were entitled to one in connection with the removal petition, the court invited them, if they had made a request, to submit the relevant portion of the transcript. They did not do so. Nor did they provide any authority supporting their entitlement to a statement. Finally, the court, “n any event,” adopted the proposed statement of decision Seaboard prepared. Accordingly, there is no merit to appellants’ assertion that the probate court erred in refusing to issue a statement of decision.

[i]The Challenges to Judge Freedman

Appellants next contend Judge Freedman should have recused himself.

As we have recited, Mark filed a challenge pursuant to Code of Civil Procedure section 170.3, on April 13, 2015. The court issued an order partially striking and answering the challenge. A little over a week later, on April 27, 2015, the executors filed three documents, which the court construed as another challenge under Code of Civil Procedure section 170.3. The court also partially struck and answered that challenge. These challenges were then heard by an assigned judge from Santa Clara County, who, in a written order filed June 10, 2015, denied them. In the meantime, Mark and Harvey had filed a separate challenge under Code of Civil Procedure section 170.3, which the probate court struck on May 18, 2015. Mark and Harvey then filed a writ petition in this court, which we denied on July 16, 2015 (Ottovich et al. v. The Superior Court of Alameda County (July 16, 2015, A145432)).

In their opening brief, appellants claim “[t]he question in this appeal is whether Probate Code [s]ection 7060 is broader than Code of Civil Procedure [s]ection 170.1.” And in their reply brief, appellants chide Seaboard for addressing the Code of Civil Procedure section 170.1 grounds of their section 170.3 challenges, asserting they “are not relying on those sections in this appeal.” Thus, it is clear that appellants are not challenging the probate court’s rulings on their section 170.3 challenges. Rather, they are raising, for the first time on appeal, an entirely new statutory basis for disqualification, namely Probate Code section 7060. Furthermore, they claim Probate Code section 7060 has a lower bar requiring disqualification, than do the grounds set forth in Code of Civil Procedure section 170.1 requiring disqualification under Code of Civil Procedure section 170.3.

By never raising Probate Code section 7060 in the court below, however, appellants have forfeited any argument that Judge Freedman should have recused himself under that section.[18] (See Blackburn v. Charnley (2004) 117 Cal.App.4th 758, 769.) In fact, Mark and Harvey did not raise this argument, even when they sought writ relief from this court challenging Judge Freedman’s continued handling of the probate proceeding. We understand that appellants, in their Code of Civil Procedure section 170.3 challenges, claimed Judge Freedman had a sufficient economic interest to require disqualification and that they are pointing to that same claimed economic interest as requiring disqualification under Probate Code section 7060. However, what appellants are also claiming is that Probate Code 7060 has a lower standard requiring disqualification than does Code of Civil Procedure section 170.3 and that under that lower standard Judge Freedman should have been disqualified. By failing to raise Probate Code section 7060 at any time in the probate court, appellants thus deprived the court of both the opportunity to address that purported lower standard, as well as the opportunity to create a record for review on appeal.

Having concluded that appellants forfeited any claim of disqualification under Probate Code section 7060, we need not, and do not, address any of the arguments they have advanced in connection with their claim that Judge Freedman was required to recuse himself under Probate Code section 7060.[19]

Removal of the Executors

As they have done throughout the probate proceedings, appellants contend they “did nothing wrongful” and the court erred in removing them as executors. In reviewing a removal order we give great deference to the probate court’s decision and “except for clear abuse, the court’s ruling will not be interfered with on appeal.” (Estate of Effron (1981) 117 Cal.App.3d 915, 930.)

Probate Code section 8502 provides: “A 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.” (Prob. Code, § 8502, subds. (a)–(e).)

The party seeking removal bears the burden of proving grounds for such. The personal representative, in turn, has “the right to rely on the presumption of fair conduct and faithful performance of official duty until something [is] offered to overcome it.” (Estate of Buchman (1954) 123 Cal.App.2d 546, 554.) “While it is the clear duty of the court to remove an executor or administrator when his unfitness has been proved, it is at the same time the right of every trustee to receive full acquittance of charges impugning his integrity or competence which are not established by clear and satisfactory evidence.” (Estate of Wacholder (1946) 76 Cal.App.2d 452, 464.)

In its oral ruling, the probate court identified a number of grounds for granting the removal petition: “There has been abject neglect, and not just neglect, willful failure to comply with the executors’ obligations.” “[T]here is a clear conflict of interest in any of these individuals continuing to serve as an executor of the estate. Their failure to file accurate . . . I&A’s or accountings for the estate is inexcusable, given these circumstances.” The testimony established “a willful disregard with the previous orders of . . . other judges who have participated during the long history of 13 years-plus, of this estate proceeding.”

The court’s statement of decision also recounts this litany of grounds for removing appellants, including failure to file timely or complete inventory and appraisals, accountings, and status reports, failure to close the estate and to comply with “various court orders,” and gross mismanagement of the estate in failing to maintain financial records and committing fraud by transferring estate property without court approval. Indeed, the court’s statement of decision recounts in detail appellants’ derelictions as executors.

The court’s findings are, moreover, supported by ample evidence, including the court’s own files, which were properly judicially noticed (and showed the executors had not complied with court orders or their duties as executors to report regularly to the court on the status of the estate and to timely distribute and close the estate), and by Karen’s and Mark’s testimony and the appellants’ offer of proof that Harvey and Randy would testify to the same things.

In challenging the court’s findings, appellants are doing no more than rearguing their case. While they insist they believed in good faith that they could transfer the San Lorenzo properties out their parents’ estates, and that they did not comply with the court’s orders to file inventories, appraisals and accountings because they believed there were “zero” assets in Jack’s estate, the probate court, sitting as the trier of fact, simply did not believe their protestations. Furthermore, even if they did act in good faith, the fact remained that they failed to comply with court orders and never complied with their legal obligations as executors of their father’s estate. For that reason, alone, the probate court was justified in removing them and appointing a professional fiduciary.

The Offer of Proof Regarding the Mortgage Default

Appellants also contend the trial court abused its discretion by ignoring their offer of proof that “they could cure the default” on the 15600 Lorenzo Avenue property.

As we have recounted, appellants’ counsel asked Mark “would you be willing to put forward evidence . . . to show the Court that this property is not in danger of foreclosure.” Mark replied he had “about $15,000 in cashier’s checks, approximately. Harvey’s got $15,000 in his account. There’s $30,000 right there. And that doesn’t even count other means of access to money that I don’t need to divulge.” When next asked “if, as a condition of the Court not removing the executors,” Mark could “make good on this,” Mark inquired, “You mean to show proof?” When counsel responded affirmatively, Mark replied, “Not a problem.”

While appellants now seek to style this as a formal offer of proof, it was not. The testimony to which appellants cite was simply a colloquy between Mark and the executors’ attorney. Furthermore, the supposed offer of proof did not come close to showing that the Lorenzo Avenue property was not at risk. For one thing, Mark did not state how much was owed to cure the default. Accordingly, the supposed offer did not show the claimed cash at hand would make even a significant dent in what was owed, let alone be sufficient to cure the default. Finally, it is clear from the record that the probate court did not find Mark credible. Thus, even had the executors’ attorney made a formal offer of proof on the basis of Mark’s testimony, that offer would not have altered the court’s findings and decision to remove the executors.

Appointment of the Special Administrator

We are perplexed by appellants’ challenge to the order appointing Leo Bautista (Bautisa) as special administrator. They assert their appeal “stayed” their removal as executors and therefore the appointment of the special administrator was “ineffective as a matter of law.” They contend they have raised two issues “of first impression”: (1) “is an appeal required before a [Probate Code section] 1310(b) order can be made” and (2) “are finding[s] required before a ‘1310(b)’ order can be made.”

In its respondent’s brief, Seaboard points out Bautista was not appointed pursuant to Probate Code section 1310 subdivision (b), which on its face provides for the appointment of a special administrator after an appeal has been taken. Rather, Bautista was appointed pursuant to Probate Code sections 8500 et seq. on October 9, 2015, before appellants filed their notice of appeal from the removal order on November 2, 2015.

Appellants make no response in their reply brief. Accordingly, it appears they have abandoned this issue.

But even if they have not, the fact is the court appointed Bautista before any appeal was taken and before any stay came into effect. Accordingly, Bautista’s appointment, itself, was not legally “ineffective.” Furthermore, contrary to appellants’ assumption that a stay pending appeal resurrected their power to act as executors, an appeal from a removal order does not revive letters testamentary that have been revoked. (Estate of Buchman (1955) 138 Cal.App.2d 228, 233.) Finally, appellants made no effort to obtain a “stay” from the trial court and a return to the prior status quo, once they filed a notice of appeal. Had they done so, that undoubtedly would have triggered the court’s consideration of Probate Code section 1310, subdivision (b). And given this record, there is no doubt whatsoever that the court would have continued its appointment of Bautista as special administrator.

Accordingly, there is no merit to appellants’ assertion that Bautista’s appointment was legally “ineffective” and that upon appeal of the removal order, they resumed their position as the executors of Jack’s estate.

Disposition

The orders removing appellants as the executors of their father’s estate and appointing a special administrator are affirmed. Respondent to recover costs on appeal.

_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Margulies, J.

A146808, Estate of Jack Ottovich; Rayl v. Seaboard Surety Company