Estate of Beard

Filed 10/26/06 Estate of Beard CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from an order of the Superior Court of Los Angeles County. Thomas C. Falls, Judge. Affirmed.

Robert L. Kern and Darla P. Gretzner for Contestant and Appellant.

Dale P. Earven for Petitioner and Respondent.

Mark Beard (appellant) appeals an order of the trial court denying his motion to vacate and set aside orders admitting to probate a codicil to the will of his mother, Joan Elizabeth Beard (decedent). We affirm.

CONTENTIONS

Appellant contends that the trial court’s ruling denying his motion to vacate the court’s orders admitting the codicil to probate should be reversed for the following reasons: (1) the codicil was admitted without an affidavit by a subscribing witness as required by Probate Code section 8220; (2) appellant was misled as to the date of the hearing and the status of the probate proceedings; and (3) the actions of the executor of the decedent’s estate, William Turner (respondent), and his attorney, Kevin J. Eperjesi (Eperjesi), violated the Rules of Professional Conduct.

BACKGROUND

The decedent and her husband, William E. Beard, had two children, James and Mark. The decedent executed her last will and testament (the will) on December 12, 1977. William E. Beard died in September 1989. The decedent died on October 22, 2004.

After the decedent’s death, James Beard presented Eperjesi with two documents, the will and a codicil. James Beard told Eperjesi that the original codicil was attached to the will and found in the decedent’s personal documents which she kept in her office safe. The will left the decedent’s estate first to her husband, if he survived her, and if he did not survive her, to her two children in equal portions, share and share alike. The will further directed that William E. Beard should be appointed as executor, and named respondent as alternate executor.

The codicil, which appeared to have been executed on January 10, 1990, read as follows:

“An agreement between Joan E. Beard mother and sons James M. Beard and Mark E. Beard regarding the property on Garona.

“Mark E. Beard will receive his inheritance from his mother in the house on Garona now.

“James M. Beard will receive his inheritance from the Norsewood house later.

“All other terms of the will of Joan E. Beard remain.”

The document bears the signatures of the decedent, appellant, and James M. Beard. According to appellant, the codicil was not intended to be used as a testamentary document but was created exclusively for use in connection with proceedings dissolving his former marriage, which were pending at the time of the creation of the document.^[1]

Respondent commenced probate proceedings on December 17, 2004, by filing a petition for probate of will and codicil and for letters testamentary (petition). The will and codicil were attached to the petition. On January 12, 2005, respondent filed two proofs of subscribing witness to the will. No proof of subscribing witness was filed at that time with regard to the codicil. The court set a hearing for February 3, 2005, to consider the request for probate of the will and codicil.

There is a factual dispute as to the conversations that took place between appellant and Eperjesi after respondent filed the petition. Appellant contends that he “clearly and unequivocally” represented to Eperjesi that the codicil was not a testamentary document and that it would be inappropriate to have it considered as such. In his declaration submitted to the trial court, appellant stated that he communicated his position to Eperjesi “on several occasions.” However, Eperjesi declared in opposition that appellant never informed him that he felt that the codicil was not a testamentary document or that it would be inappropriate to have it considered as a codicil. Respondent’s declaration indicates that respondent was similarly unaware of any dispute between the two brothers concerning the codicil’s testamentary intent.

On January 31, 2005, Eperjesi sent a letter to both appellant and his brother, James. In the letter, Eperjesi stated that the purpose of the letter was “to clarify the roles of [Eperjesi] and [respondent].” The letter explained that Eperjesi was the attorney representing the estate, and respondent was serving as the executor. The letter further indicated that if either appellant or his brother intended to contest the will or codicil, they would need to retain independent counsel not associated with Eperjesi and respondent. Finally, the letter stated: “I will attend the hearing on February 3, 2005. I will request the will be admitted to probate. I intend to inform the court I am in the process of investigating the codicil, and that, therefore, it is currently not appropriate to enter the codicil to probate. This will give either of you sufficient additional time to determine your appropriate course of action.”

On February 4, 2005, Eperjesi sent a second letter to both appellant and his brother. The letter stated: “The hearing originally scheduled for February 3, 2005 was continued to March 17, 2005. Therefore, I did not have the opportunity to admit the will to probate. The probate attorney is requesting additional documentation to admit the codicil to probate. As the legal representative of the estate, I am under an obligation to do so at this time.” The letter repeated that if either appellant or his brother intended to contest the will or codicil, they would have to retain independent counsel. The letter concluded: “I will attend the hearing on March 17, 2005. I will request the will and codicil be admitted to probate at that time if the court has not done so before that date. If you intend to retain an attorney in this matter you should do so.”

On February 8, 2005, Eperjesi filed a proof of subscribing witness for the codicil. According to Eperjesi’s declaration to the trial court, Eperjesi showed up for the March 17, 2005 hearing to find that the matter was not on calendar. He was “genuinely confused” as to why. Eperjesi stated that he had provided the documentation that the probate attorney had previously requested, but prior to March 17th he did not know that the court had accepted the documentation as evidence to prove the validity of the codicil. Both Eperjesi and appellant were present when Eperjesi had a conversation with court personnel and learned that the court had issued the order for probate on February 3, 2005.^[2]

According to Eperjesi, the morning of March 17, 2005 was the first time he learned that the order for probate had been issued. Upon obtaining a copy of the order, Eperjesi stated that he explained to appellant, who was also present at the court, that the will and the codicil had been admitted to probate. Eperjesi represented that it was at court on March 17, 2005 that appellant first informed Eperjesi that appellant intended to challenge the codicil.

On March 22, 2005, appellant filed a petition for revocation of probate of purported will. Respondent filed an answer on May 4, 2005. On June 6, 2005, appellant filed a motion to vacate and set aside the orders admitting the codicil to probate and for the appointment of a neutral party as administrator of the decedent’s estate.^[3] On August 18, 2005, the trial court heard oral argument on appellant’s motion and respondent’s opposition. On August 31, 2005, the trial court ruled that “[t]he order of appointment of administrator and will dated 12/12/77 and codicil dated 1/10/90 were properly admitted on 2/3/05.” This appeal followed.

DISCUSSION

I. Standard of Review

The parties disagree as to the applicable standard of review. Appellant argues that our review of the court’s ruling that the will and codicil were properly admitted should be de novo. First, appellant asserts that the question of whether the court’s order admitting the documents to probate was void because it did not meet the requirements of Probate Code section 8220 is a question of law. Appellant further asserts that because the “essential or decisive” facts are undisputed, this court should review the remaining issues as a matter of law.

Respondent disagrees. Respondent contends that the trial court’s decision should be reviewed for abuse of discretion. Respondent cites Firestone v. Hoffman (2006) 140 Cal.App.4th 1408, 1418 for the proposition that a trial court’s decision admitting or excluding evidence should be reviewed for abuse of discretion. Respondent also cites Estate of Carter (2003) 111 Cal.App.4th 1139, 1154, which held that, in an action to set aside a final order of distribution of an estate, “reasonable inferences must be drawn in favor of the trial court’s decision, regardless of whether the trial court acted under the authority of subdivision (b) of Code of Civil Procedure section 473 or the inherent power of a court to set aside a judgment procured by the extrinsic fraud of keeping an adversary out of court [citations].”

Appellant’s motion to vacate and set aside the trial court’s orders admitting the will and codicil to probate was brought pursuant to Code of Civil Procedure section 473 (section 473).^[4] “It is . . . settled law that section 473 is addressed to the sound discretion of the trial court.” (Estate of Strobeck (1952) 111 Cal.App.2d 853, 858 (Strobeck).) Thus, in reviewing a trial court’s ruling on a motion brought pursuant to section 473, we normally limit our analysis to a determination of whether the trial court abused its discretion. (Ibid.)

The cases cited by appellant do not convince us that we should deviate from the established standard of review in this case. Appellant cites Goddard v. South Bay Union High School Dist. (1978) 79 Cal.App.3d 98, 105, which states the general proposition that the construction of the law and its application to a given set of facts are questions of law. However, appellant has presented no authority we should engage in a de novo review of a trial court’s denial of a motion pursuant to section 473, which grants the trial court substantial discretion to “‘mold and direct its proceedings.’” (Barnes v. Witt (1962) 207 Cal.App.2d 441, 448.) Appellant further points to David Kikkert & Associates, Inc. v. Shine (1970) 6 Cal.App.3d 112, 116 and Oliver & Williams Elevator Corp. v. State Bd. of Equalization (1975) 48 Cal.App.3d 890, 894, both of which state the general rule that where the decisive facts are undisputed, the issue is a question of law. However, unlike the situations presented in these two cases, here there was a significant factual dispute about the events leading up to the court’s admission of the probate documents.

In short, appellant has presented us with no reason not to follow well established law indicating that “a trial court is vested with a wide discretion in the matter of granting or denying motions for relief under section 473.” (Bruskey v. Bruskey (1935) 4 Cal.App.2d 472, 474.) We therefore review the trial court’s decision under an abuse of discretion standard. Under that standard, “‘in the absence of a clear showing of abuse’” in the exercise of discretion, we will not disturb the order of the court below. (Strobeck, supra, 111 Cal.App.2d at p. 858.)

II. Compliance with Probate Code section 8220

Probate Code section 8220 sets forth the requirements to prove the existence of a will when there is no contest. Such evidence may be in the form of an affidavit by a subscribing witness. Appellant contends that because the minute order admitting the codicil was dated February 3, 2005, five days before the applicable proof of subscribing witness was filed the trial court should have granted his motion to vacate the order.^[5]

Appellant admits that it is “common knowledge” that courts occasionally permit parties to take corrective action by filing required documents after a hearing. However, appellant argues that because the proof of subscribing witness provided an essential fact upon which the proceedings were based, the order admitting the document to probate should be vacated. We disagree.

1. The court had subject matter jurisdiction and broad authority to direct the proceedings

The jurisdictional facts which must be established upon commencement of a probate proceeding are set forth in Probate Code section 8005. Those facts include the date and place of decedent’s death, facts indicating that the decedent was domiciled in this state or left property in this state at the time of death, and proof of publication of notice of the hearing. (Prob. Code, § 8005, subd. (b)(1).) Appellant does not dispute that the evidence before the court on February 3, 2005, showed that Los Angeles Superior Court was the proper forum for the proceedings. Nor does appellant dispute that the court had before it proof of publication of the hearing date. Therefore the court’s jurisdiction over the subject matter and the parties was properly established. (See Conservatorship of O’Connor (1996) 48 Cal.App.4th 1076, 1087 [“The principle of ‘subject matter jurisdiction’ relates to the inherent authority of the court involved to deal with the case or matter before it”].)

Other matters required to be established at the hearing on the initial probate petition include the existence or nonexistence of the decedent’s will and the fact that notice was served as required. (Prob. Code, § 8005, subd. (b)(2) & (b)(3).) Proof of service of notice of the hearing date by mail had been filed on December 30, 2004. Pursuant to Probate Code section 8006, subdivision (a), “If the court finds that the matters referred to in paragraph (1) of subdivision (b) of Section 8005 are established, the court shall make an order determining the . . . jurisdiction of the court. Where appropriate and on satisfactory proof, the order shall admit the decedent’s will to probate and appoint a personal representative.” Under Probate Code section 8220, where there is no contest, such proof may be in the form of an affidavit of a subscribing witness.

Two proofs of subscribing witness as to the will had been previously filed with the court. Therefore on February 3, 2005, satisfactory proof existed as to the will. As to the codicil, Eperjesi’s declaration to the trial court describes his experience at the court as follows: “I learned in order to admit the codicil to probate, an affidavit from one of the witnesses would have to be filed with the court. I was informed upon my filing of the affidavit, the court would admit the codicil to probate.” Upon learning that the codicil had been admitted with the will on February 3, 2005, Eperjesi speculated: “I assume the probate attorney correctly relied upon my word when I told her I would file the affidavit she requested so the codicil could be admitted to probate.” Thus, apparently the codicil was filed on Eperjesi’s representation that he would promptly file the requested affidavit.

The court was not remiss in relying upon Eperjesi’s representation that he would file the supporting documentation. Five days later, the affidavit of subscribing witness of the codicil was filed. Appellant does not argue that the affidavit was substantively insufficient to permit the court to admit the codicil. Thus any error that the court may have committed in prematurely admitting the codicil was corrected five days later.

The court has broad authority to correct any such errors pursuant to section 473, subdivision (d).^[6] By his own admission, appellant did not even learn that the codicil had been admitted until March 17, 2005. Contrary to appellant’s assertions, the “informal procedure” leading to a five-day gap between the date the codicil was admitted to probate and the date the supporting affidavit was filed was not “used to deprive [appellant] of his right to object.” Appellant did not object until over five weeks later.

The court had jurisdiction to act and carried out its obligations within its substantial authority to “mold and direct” its proceedings. (Barnes v. Witt, supra, 207 Cal.App.2d at p. 448.)

2. The order admitting the codicil to probate was not automatically void for failure to comply with the Probate Code

Appellant cites Strobeck, supra, 111 Cal.App.2d at page 859, for the proposition that the court has no authority to make a testamentary disposition except upon compliance with the provisions of the Probate Code. Because it did not strictly comply with Probate Code section 8220, appellant argues, the order admitting the codicil to probate was in excess of the jurisdiction of the court and void.^[7]

Strobeck is distinguishable. It involved an appeal from a trial court’s decision granting relief under section 473 from its own order admitting a purported will to probate. The trial court granted relief under section 473 because a drafting error caused the court to admit the wrong will to probate. (Strobeck, supra, 111 Cal.App.2d at p. 857.) In affirming the trial court’s decision to vacate the order admitting the faulty will, the Court of Appeal noted that the faulty will was admitted to probate “without proof of execution and attestation as provided by the statute.” (Id. at p. 860.) Thus, the Court of Appeal concluded that “the order admitting the document was in excess of the court’s jurisdiction and void . . . even though the trial court had jurisdiction of the subject matter of the estate.” (Ibid.)

However, as respondent points out, the statement in Strobeck relied upon by appellant has been criticized for its failure to distinguish between void and voidable orders. In Conservatorship of O’Connor, supra, 48 Cal.App.4th at page 1088, footnote 9, the Court of Appeal, First Appellate District, Division Two, stated, “Because the facts of Strobeck do not implicate any of the principles which could prevent a party from challenging court action in excess of jurisdiction, we view the Strobeck court’s failure to distinguish between void and voidable actions as merely an oversight. To the extent Strobeck stands for the proposition that action in excess of jurisdiction is void, as opposed to voidable, we reject this proposition as inconsistent with the weight of authority.” In sum, the O’Connor court concluded, there is no “per se rule that failure to comply with statutory procedure automatically renders void the orders of a probate court.” (Conservatorship of O’Connor, supra, at p. 1090.) Therefore, because the court had subject matter jurisdiction, its action in prematurely admitting the codicil was not void but merely voidable.

The facts of this case are different from those present in Strobeck. Appellant failed to attend court on February 3, 2005, to assert his objection to admission of the codicil. In addition, the required proof of subscribing witness was promptly filed after admission of the codicil to probate. The court had broad discretion under section 473 to determine whether the interests of justice would be served by vacating the order, and it ultimately determined that the facts did not warrant such action. This decision was well within the court’s discretion. We therefore affirm the court’s decision denying appellant’s motion for relief from the judgment on the grounds that the documentation required for admission of the codicil was not on file at the time of its admission.

III. Relief on the grounds of fraud or mistake

Appellant contends that the trial court erred in denying his motion to vacate the will and codicil on the grounds of fraud or extrinsic mistake. Appellant claims that prior to the hearing scheduled for February 3, 2005, he had discussions with respondent regarding appellant’s position that the codicil should not be considered a testamentary document. Appellant further claims that based upon the representations made in Eperjesi’s letter of January 31, 2005, he failed to attend the hearing on February 3, 2005.^[8] Eperjesi’s letter of February 4, 2005, indicating that Eperjesi would request that the will and codicil be admitted to probate at a hearing scheduled for March 17, 2005, apparently led appellant to believe that the codicil would not be admitted until that date.

Appellant characterizes these events as intentional fraud on the part of respondent, Eperjesi, and James Beard. Appellant claims that these individuals “were working together to take advantage of the mistake of the court by processing the documentation which would cut off the rights” of appellant. However, appellant argues in the alternative that even if these acts were inadvertent, the incorrect and improper notice provided by the letters was sufficient reason to vacate the court’s order admitting the will and codicil to probate.

From respondent’s perspective, the actions of Eperjesi were proper, truthful, and provided adequate notice to appellant. Respondent reiterates that both he and Eperjesi were unaware of appellant’s intention to contest the codicil until March 17, 2005. Respondent further points out that, in the letter dated January 31, 2005, Eperjesi informed appellant of the February 3, 2005 hearing, which appellant chose not to attend. The same letter informed both appellant and his brother that if either of them intended to contest the will or codicil, he should retain an attorney. Further, respondent points out that Eperjesi’s letter of February 4, 2005, clearly indicated that the estate would be seeking to admit the codicil and that the court may admit the codicil prior to March 17, 2005. It read: “The probate attorney is requesting additional documentation to admit the codicil to probate. As the legal representative of the estate, I am under an obligation to do so at this time. . . . I will attend the hearing on March 17, 2005. I will request the will and codicil be admitted to probate at that time if the court has not done so before that date. If you intend to retain an attorney in this matter you should do so.” (Italics added.)

Considering this evidence, along with the arguments of counsel at the August 18, 2005 hearing on appellant’s motion, the trial court determined that appellant had failed to show fraud or mistake sufficient to warrant vacating the court’s order admitting the codicil to probate. The evidence described above was adequate to support this determination.

Larrabee v. Tracy (1943) 21 Cal.2d 645, cited by appellant in support of his position, is distinguishable. In Larrabee, the executor of an estate led the appellant to believe that there was no question as to her right to inherit. He then failed to notify the appellant that he had changed his position and intended to ask the court to distribute to himself the legacy the appellant had been led to believe she would receive. (Id. at p. 650.) The facts here are different. The evidence before the trial court was consistent with respondent’s position that appellant was fully informed about the proceedings to the best of respondent’s knowledge. After considering respondent’s declaration, Eperjesi’s declaration, and reviewing Eperjesi’s correspondence with appellant, the court justifiably concluded that no extrinsic fraud or mistake had taken place. Because appellant has failed to make a clear showing of abuse of discretion, we will not disturb the trial court’s ruling.

IV. Unprofessional conduct

Appellant’s final argument is that the trial court should have stricken the order admitting the will and codicil to probate because respondent and Eperjesi, both of whom are attorneys, acted contrary to the rules governing the legal profession. Again, the success of appellant’s claim was dependent upon the trial court’s acceptance of his version of the events in question.

Appellant asserts that he has had a longterm attorney-client relationship with respondent. He further asserts that the actions of Turner in “representing and working with” his brother James in the current matter violates Rules of Professional Conduct, rule 3-300, which requires that an attorney avoid interests adverse to a client, and rule 3-310, which requires that an attorney avoid the representation of adverse interests.

Appellant claims that the actions of Eperjesi also violated the Rules of Professional Conduct. In failing to inform the court of appellant’s intention to contest the codicil, appellant claims that Eperjesi violated Rules of Professional Conduct, rule 5-200, which requires that an attorney avoid misleading the court, and rule 5-220, which prohibits the suppression of evidence that the attorney’s client has a legal obligation to reveal or produce.

Respondent takes a different position. He asserts that while he did represent the decedent and her husband, as well as the decedent’s father, before their deaths, he never represented appellant or James Beard as their attorney. Further, both Eperjesi and respondent represented to the court in sworn statements that appellant never informed them at any time prior to March 17, 2005, that he felt the codicil was not a testamentary document or that it would be inappropriate to have it considered as a codicil. According to both respondent and Eperjesi, March 17, 2005 was the first time that appellant mentioned that he intended to object to the codicil.

The trial court had before it these two competing versions of the events leading up to the admission of the documents to probate. The court apparently accepted respondent’s evidence that he and his attorney were not informed that appellant had an interest adverse to the estate until subsequent to the time that the contested document was entered into evidence. Sufficient evidence, including the declarations and the letters that Eperjesi sent to appellant, supported the trial court’s decision. We therefore decline to find the court’s denial of respondent’s motion to strike the order admitting the documents to probate on the grounds of attorney misconduct to be an abuse of discretion.

DISPOSITION

The trial court’s order denying appellant’s motion to vacate the court’s orders admitting the codicil to probate is affirmed. Appellant shall pay the costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICAL REPORTS.

____________________, J.

CHAVEZ

We concur:

____________________, P. J.

BOREN

____________________, J.

DOI TODD

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^[1] Appellant represented in a sworn declaration to the trial court that, despite the date of January 10, 1990 indicated on the document, “in fact the date of preparation of [the codicil] was about 1996.” The introduction to appellant’s motion to set aside the trial court’s order explained: “The moving party at one point was involved in a ‘messy’ domestic relations action. His brother proposed the preparation of a ‘back dated’ document to prove that the home which the moving party claimed was an inheritance.” Appellant further explained that the document was never used in the dissolution proceedings.

^[2] Because Eperjesi did not file the proof of subscribing witness for the codicil until February 8, 2005, Eperjesi indicated that he was “very surprised” to see that the will and codicil were admitted to probate on February 3, 2005. However, he speculated that “the probate attorney correctly relied upon my word when I told her I would file the affidavit she requested so the codicil could be admitted to probate.”

^[3] Appellant’s motion addressed two orders: the court’s minute order of February 3, 2005, which admitted both the will and codicil to probate, and the order for probate filed on February 4, 2005.

^[4] Section 473 is applicable to probate actions pursuant to Probate Code section 1000.

^[5] Appellant also argues that Probate Code section 8220 was not applicable because the proponents of the codicil were aware that appellant was planning to contest the codicil. The factual dispute regarding the knowledge of respondent and his attorney of appellant’s position as to the codicil is discussed in Sections III and IV, infra.

^[6] Section 473, subdivision (d) states in part: “The court may, upon . . . its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed.”

^[7] An action in excess of jurisdiction is different from a lack of subject-matter jurisdiction. As set forth in Conservatorship of O’Connor, supra, 48 Cal.App.4th at pages 1087-1088, “a court acts in excess of jurisdiction ‘”where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act except in a particular manner . . . or to act without the occurrence of certain procedural prerequisites.”’ [Citations.]”

^[8] The letter stated, in pertinent part: “I will attend the hearing on February 3, 2005. . . . I intend to inform the court I am in the process of investigating the codicil, and that, therefore, it is currently not appropriate to enter the codicil to probate.”