Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. PN27172, Richard G. Cline, Judge.
HUFFMAN, Acting P. J.
This appeal arises out of a ruling by the probate court concerning the estate of Mrs. Geneva Mae Jean Moore, deceased (Jean), which established that Jean's stepdaughter, respondent Lauretta DeForge (DeForge), was entitled to share in the distribution of Jean's estate. That ruling, resolving the estate administrator's petition for instructions under Probate Code, section 11700, is appealed by Jean's stepson, Gary Moore (Gary). Both Gary and DeForge are the adult children of Guy Moore (Guy) (who was married at the time of his death to Jean), and of Guy's previous wife, Lauretta Moore (referred to here as Mother). Gary and DeForge have been involved in several previous disputes in litigation of the estate of their father, Guy, and also concerning the disposal of the property of Mother. Some of those disputes provide the background for the current appeal.
All further statutory references are to the Probate Code unless noted.
The name of the administrator of the estate is Sandra Schiefer (referred to here as the administrator). Through a letter from her attorney, she has informed this court that she does not take any position on the issues raised in this appeal. Another claimant, Connie Leigh, niece of Jean, is not a party to this appeal.
Estate of Guy Moore (Super. Ct. San Diego County, 2001, No. PN25587) ("Guy's estate").
On appeal, Gary contends that, as a matter of law, the trial court erred in determining that certain previous agreements entered into between DeForge and Gary, and certain rulings about them, will not preclude any entitlement of DeForge to inherit from their stepmother, Jean, under the provisions of section 6402.5, subdivisions (a) and (b), regarding distribution of estate property to relatives where the decedent had a recently predeceased spouse, and where express provisions were not made otherwise. Gary now argues for a de novo interpretation of the agreements, and contends the probate court erred in its conclusions with respect to the res judicata effect of the previous orders.
Section 6402.5 is entitled, "Predeceased spouse; portion of decedent's estate attributable to decedent's predeceased spouse." It is found in division 6 of the Probate Code, part 2, dealing with "Intestate Succession."
In contrast, DeForge argues for a substantial evidence review of the record, and contends that the probate court correctly interpreted the agreements in light of extrinsic evidence of the intent of the parties throughout the various proceedings. In the alternative, if a de novo analysis is used, she argues the trial court correctly interpreted the applicable statutes and properly read the face of the various agreements to determine that she did not relinquish her rights to Jean's estate.
After considering DeForge's motion to dismiss and her request for judicial notice, we conclude Gary's appeal of the subject order was timely and is properly before us for resolution. The probate court correctly applied the statutory scheme for inheritance to the record before it, to conclude that DeForge could properly participate as one of the beneficiaries of Jean's estate, and none of the agreements controverts this statutory scheme. (§ 6402.5, subds. (a)(1) & (b)(1).) We deny the motion and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background of Subject Petition: 1994 Agreement; Guy Dies in 2001
Guy and Mother had been divorced for many years by 1994. That year, Mother was in failing health. DeForge reached a signed agreement with Gary that DeForge would give up her interest in Guy's estate, and would take instead only from Mother's estate (proceeds from sale of her house). Jean was already married to Guy, and she also signed this agreement, as did Guy and Mother. According to DeForge, she then cared for Mother for several years until her final illness, using and mostly depleting Mother's funds.
When Guy remarried, to Jean, he owned certain real property in Carlsbad, holding title as a single man. When Guy died in February 2001, the character of that property was undetermined. Guy's estate was established and Gary disputed Jean's right to inherit that real property.
B. Litigation in Guy's Estate; 2002 Settlement Agreement; Further Proceedings
In Guy's estate, Jean was appointed as administrator. In August 2002, she reached a settlement agreement with Gary to provide that the real property in Carlsbad would be sold and the proceeds placed in trust, in which Gary would have a two-thirds' interest. Jean would be awarded the remaining one-third interest, to be held in trust with a power of appointment upon her passing. In December 2002, Jean brought a petition seeking an order approving this settlement agreement between herself and Gary, with respect to dividing the proceeds of sale of the real property.
In 2003, DeForge filed an objection to that petition for approval of the settlement agreement. Before that could be resolved, Jean died in April 2003. Her petition for approval of the Jean/Gary settlement agreement in Guy's estate was taken off calendar, subject to renewal if necessary.
In a request filed in this court while the appeal was pending, DeForge asks us to take judicial notice of a 2006 stipulation reached in Guy's estate regarding distribution of his estate assets. This document modified an earlier settlement agreement (dated 2002, also in Guy's estate) between Jean and Gary. We will discuss that request in part IIIA of this opinion.
Shortly before Jean died in April 2003, she wrote checks on Guy's estate account, paying approximately $300,000 to an insurance company and to her niece.
C. Jean's Estate is Created; Litigation of Disputes in Guy's Estate
When Jean died in 2003, she left a form will that did not fill in or specify any particular distribution of her property. Jean did not have any surviving issue, but her niece and other relatives were claimants to her estate. The only significant asset of Jean's estate was her interest in the estate of Guy, which was still in litigation about the character of the real property in Carlsbad, and about the disposition of the proceeds of sale. The record does not show whether she ever exercised any power of appointment in the potential trust proceeds from sale.
The administrator of Guy's estate brought proceedings to recover the $300,000 that Jean had spent on behalf of her niece, and approximately $291,000 was returned to Guy's estate. Pursuant to the 2002 settlement agreement, $223,285.14 was transferred from Guy's estate to Jean's estate, apparently representing her one-third trust interest following the sale of the Carlsbad real property.
In Guy's estate, in May of 2005, Gary filed a petition to determine entitlement to distribution in which he sought relief from the 2002 settlement agreement. He alleged that this settlement had been reached under the mistaken belief that only Jean and Gary were potential heirs to Guy's estate, but that DeForge was now asserting an interest. Therefore, he sought to have the settlement agreement set aside.
In Guy's estate, the probate court resolved that petition in an order dated November 30, 2005, acknowledging the existence of the 1994 agreement in which DeForge gave up rights of inheritance to Guy's estate; the order provided that the 2002 Jean/Gary settlement agreement remained enforceable. The order further provided that DeForge should be estopped from benefiting from Guy's estate due to the detrimental reliance on the October 1994 document, by Gary and Jean, when they reached their 2002 settlement.
After further settlement discussions in Guy's estate, DeForge signed an assignment of her interest in Guy's estate, dated August 15, 2005. In return for this assignment, DeForge received a payment of $10,000.
D. Further Litigation of Disputes in Jean's Estate
DeForge and others, as well as Gary, continued to claim an interest in Jean's estate. In 2006, the administrator of the estate of Jean filed the subject petition in the probate court to settle her estate, and to seek an order resolving a dispute about entitlement to distribution of Jean's estate between her stepson Gary and her stepdaughter, DeForge, among other claimants. (§ 11700 [A personal representative may seek court determination of the persons entitled to distribution of a decedent's estate].) The administrator sought instructions as to whether, under section 6402.5, subdivisions (a) and (b), both Jean's stepson Gary and her stepdaughter DeForge were entitled to share in the distribution.
In opposition, Gary argued that the previous agreement entered into between himself and DeForge in 1994 regarding the allocation of property of Mother and the agreement between Gary and Jean in 2002 regarding Guy's estate should preclude DeForge from participating as a beneficiary of Jean's estate. Specifically, Gary argued that although he had reached a settlement with Jean about the proceeds of the sale of Guy's real property, Jean had never claimed that the real property was her own separate property. Gary therefore argued that the issue of Guy should inherit from Jean's estate, pursuant to section 6402.5, but that the source of her property from her deceased husband (community or separate) should be considered. Gary then contended that DeForge retains no inheritance rights as issue of Guy, due to the 1994 agreement. He also relied on the previous 2005 probate court order finding that Gary and Jean had detrimentally relied on the 1994 agreement in reaching the settlement. Accordingly, Gary requested an order that he was the only issue of Guy allowed to inherit from Jean.
In response, DeForge provided a verified statement that argued that any agreement she made not to inherit from her own mother, or from Guy, had nothing to do with her rights to inherit from Jean. Rather, DeForge argued that she never had any understanding she was giving up any rights in Jean's estate, and that a determination was necessary how much of Jean's estate's property was Guy's separate property or community property of the couple.
Jean's niece also filed a response to the administrator's petition, presenting background about the 2002 settlement between Jean and Gary regarding Guy's estate assets. According to her, Gary received one-third as separate property of Guy, and the remaining two-thirds of the property had been characterized by the parties as community property, of which Jean received 50 percent (one-third). The niece argued that it was "inherent" in the settlement that the character of Guy's real property at the time of his death was one-third separate and two-thirds community.
At the hearing on October 27, 2006, the probate court discussed with counsel how best to proceed on the various issues before it, which at that time also included claims by Jean's niece and others, as well as the continuing issue of what portion of Jean's estate was her separate property as opposed to any community property from her marriage to Guy. The court decided that it was necessary to review the matter and issue an order resolving the respective rights of DeForge and Gary, with respect to the 1994 agreement and the related litigation. As to the remaining issues, a status conference was set and the hearing continued until December 8, 2006.
E. Minute and Formal Orders
After taking the matter under submission, the probate court issued its "ruling of submitted matter," in the form of a minute order dated November 9, 2006, that was served on the parties by the clerk, with a proof of service that referred to the document as above. Although the proof of service was file-stamped, the minute order itself was not file-stamped. This minute order first summarized the background of the 1994 agreement, the litigation in Guy's estate, the 2002 settlement agreement between Gary and Jean, and the 2005 assignment by DeForge of her interest in Guy's estate. The court then ruled that the subject of those previous agreements dealt with inheritance from persons other than Jean (i.e., Mother and Guy). The court stated, "Nothing in this agreement directly or indirectly contemplates that the agreement would be extended to some contingent and unknown event such as the later death of [Jean]. Similarly, the subject of the assignment signed on August 15, 2005 is ['Guy's estate and its assets.'] By its terms, this agreement does not extend to the right of . . . De Forge to participate as a beneficiary of the estate of [Jean]." Therefore, the probate court ruled that both DeForge and Gary were entitled to share in the proceeds of the stepmother's (Jean's) estate.
The order on submitted matter concluded, "It is so ordered," but it did not specify whether a formal order should be prepared. (Capitalization omitted.) As noted, the clerk mailed a copy of this ruling on the submitted matter to counsel with a file-stamped proof of service attached, dated November 9, 2006.
After receiving this order on the submitted matter, Gary's attorney started to correspond with DeForge's attorney about preparing a formal order. They disagreed about whether such a formal order was necessary, or if the minute order was sufficient. Eventually, Gary's attorney submitted such an order to the probate court, stating, "[N]otwithstanding any prior agreements or Court rulings, . . . De Forge is entitled to participate as a beneficiary of the [estate of Jean] based on her status as issue of Guy . . . ." This order was approved by all counsel except for DeForge, and was signed and filed on March 1, 2007.
At the next hearing on March 23, 2007, the matter was continued until June 8 in order for the parties, including the niece, to pursue alternative dispute resolution on the remaining issue of community or separate property. On or about April 12, counsel for DeForge gave notice of a hearing on her motion to vacate the signed March 1, 2007 order on submitted matter, set for May 31, 2007. On April 24, 2007, Gary filed his notice of appeal. (§ 1303, subd. (f) [an order on a petition determining entitlement to estate distribution is appealable].)
At the hearing on DeForge's motion to have the trial court vacate the March 1, 2007 order, she argued there was a dispute about whether the trial court had been adequately notified by Gary's attorney that she was opposing the need to obtain any formal order. According to DeForge, any appeal should have been taken from the minute order, and therefore this appeal was untimely.
The probate court declined to issue a ruling on the motion to vacate, stating that because of this pending appeal, further proceedings were stayed. The signed order remained in effect.
The record on appeal further discloses that settlement efforts were subsequently pursued concerning all issues except those on appeal, and the administrator obtained approval of a settlement agreement with the other claimants. Guy's estate has been closed, and in Jean's estate, only the issues between Gary and DeForge remain for resolution.
DISCUSSION
I MOTION TO DISMISS
Under California Rules of Court, rule 8.104(a), a notice of appeal must ordinarily be filed on or before the earliest of: "(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [¶] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [¶] (3) 180 days after entry of judgment." Under rule 8.104(f): "As used in (a) and (e), 'judgment' includes an appealable order if the appeal is from an appealable order."
All references to rules are to the California Rules of Court unless otherwise noted.
Here, the parties dispute the effect of the clerk's mailing of the minute order on the submitted matter, on November 9, 2006. We must decide this issue of timeliness before turning to the merits of any appellate arguments. DeForge seeks to have this court dismiss Gary's appeal, filed on April 24, 2007, on the grounds that it was untimely as measured from the date of this minute order on the submitted matter, which was served on the parties by the clerk. She argues that once the minute order was prepared and served, there was no need for any formal order to follow up on it, and the probate court was led to issue such a formal order on March 1, 2007, only because of gamesmanship being conducted by Gary's attorney, who had not yet filed a notice of appeal, and this was not fully disclosed to the probate court. DeForge contends Gary's attorney did not properly notify the court of her opposition to having such a formal order prepared, and the time to appeal therefore ran from the original minute order, so that this appeal was untimely filed.
In opposition, Gary argues that the minute order contemplated the preparation of a subsequent formal order, impliedly if not expressly, when local rules concerning preparation of formal orders by a prevailing party are taken into account. (Rule 3.1312; Super. Ct. San Diego County, Local Rules, rules 4.7.1.B, 4.7.2.C [prevailing party will submit a formal order for signature unless otherwise ordered].) Also, the minute order was not file-stamped, and in any case, when the probate court signed the order, it made an implied finding that a formal order was appropriate. In the alternative, Gary argues that his appeal, filed April 24, 2007, was timely because only the 180-day period of rule 8.104(a)(3) should control since the orders did not include any "notice of entry" language as contemplated by the rule.
Rule 3.1312 appears in the law and motion division of the revised rules and provides for preparation of a proposed order by a prevailing party on any motion, along with procedures for supplying the proposed order to the other party for approval as conforming to the court's order, and for objections and provision to the issuing court.
We first address the terms of the 60-day period for appeal under rule 8.104(a), then turn to the 180-day period. Under rule 8.104(a)(1), if "the superior court clerk mails the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment," then the 60 days begins to run. There was no such title given to these documents of " 'Notice of Entry.' " However, under rule 8.104(d), "entry" of an appealable order is defined as follows: "(2) The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed; a written order prepared under rule 3.1312 or similar local rule is not such an order prepared by direction of a minute order. [¶] (3) The entry date of an appealable order that is not entered in the minutes is the date the signed order is filed." Here, it is not clear that subdivision (2) of this definitional rule applies, since the minute order did not directly require that a written order be prepared, and we cannot authoritatively say that the order on submitted matter was entered in the permanent minutes, since it does not bear a file stamp. Instead, under subdivision (d)(3) of rule 8.104, the "entry" date was the date the signed order was filed, on March 1, 2007.
This interpretation is consistent with case law. Although it is true that minute orders are rarely file stamped, courts have acknowledged that if they are to serve the function of a notice of entry of judgment or appeal able order, they must meet the standards of the appellate rules that were created for that purpose. (See In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 686.) For example, in Mandjik v. Eden Township Hospital Dist. (1992) 4 Cal.App.4th 1488, 1497-1498, a minute order was found sufficient to start appeal time running when it was officially "entered" in the minutes of the court, by being signed by the clerk of court, with the case number included, and because it bore a file stamp date that showed it had been filed in the court file.
In 20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 671, former rule 2 (the predecessor to rule 8.104) was interpreted as follows: "An appealing party must file its notice of appeal within 30 days of the date the court clerk mails 'a document entitled "notice of entry" of judgment or appeal able order.' " The court noted that "a file-stamped copy of the order may be used (i.e., mailed by the clerk) in place of the 'notice of entry' document." (20th Century, supra, at p. 671.) However, the court in that case ruled that a document mailed by the clerk that was captioned " 'notice of ruling,' " not " 'notice of entry,' " did not start the appeal time running, because it did not include file stamps on the minute orders. (Id. at pp. 671-672, citing Hughey v. City of Hayward (1994) 24 Cal.App.4th 206 [holding that under former rule 2, " 'a file-stamped copy of the judgment may be used in place of the document entitled "notice of entry" ' "].)
In Sunset Millennium Associates, LLC v. Le Songe, LLC (2006) 138 Cal.App.4th 256, 259, the court ruled that a 14-page minute order that did not include the "notice of entry" language until its page 13 did not comply with the rule requirement that a document providing notice of entry must "be so entitled. The controlling provision of law is in [former] rule 2: '(a) Unless a statute or [former] rule 3 provides otherwise, a notice of appeal must be filed on or before the earliest of: [¶] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, showing the date either was mailed . . . . [Former r]ule 2(a)(1) expressly provides that the document that triggers the 60-day time period to file a notice of appeal must be 'entitled "Notice of Entry." ' Within reason, [former] rule 2 is read literally. [Citations.] Placing the crucial notice of entry language on page 13 of 14 pages of an integrated minute order is not the same as entitling the document 'Notice of Entry' as specified in [former] rule 2(a)(1)." (Sunset, supra, at pp. 259-260.)
These authorities and a plain reading of rule 8.104(a) and (d) indicate that the November 9, 2006 minute order on submitted matter would not qualify as a "notice of entry," unless it had its own file stamp and was labeled as such; the file stamp on the clerk's proof of service is not sufficient. In light of all the circumstances as of the time of the ruling, which included a continuance of other pending issues involving the estate, this order was intended to resolve the respective rights of DeForge and Gary with respect to the 1994 agreement and the related litigation, but it does not on its face constitute an entry of judgment or appeal able order that would be sufficient to give notice that the time for appeal would begin to run. Instead, the formal order was appropriately prepared and signed later.
Moreover, even if we use the date of the original order on submitted matter as controlling, the appeal is not untimely. The reason is that it was filed less than 180 days from that original order date, which did not include any "notice of entry" language, and under rule 8.104(a)(3), an appeal filed within 180 days of entry of judgment (or the filing of the signed appeal able order) is timely.
We are satisfied that here, the original order itself was not sufficiently clearly entitled or file-stamped so as to amount to a notice of entry. The time for appeal did not begin to run until the filing of the trial court's signed order. The motion to dismiss is denied and we next turn to the merits.
II APPLICABLE STANDARDS
The parties disagree on the applicable standard of review for this record, which mainly consists of the various rulings in the two estate matters and the documents filed in connection with the petition seeking instructions on whether, under section 6402.5, subdivisions (a) or (b), DeForge was entitled to participate in the distribution of Jean's estate. Gary raised objections and DeForge responded, each in the form of declarations or verified responses.
Gary contends a de novo standard of review is appropriate, because these issues involve "mixed questions of law and fact when legal issues predominate. [Citation.] . . . 'If the pertinent inquiry requires application of experience with human affairs, the question is predominantly factual and its determination is reviewed under the substantial-evidence test. If, by contrast, the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently.' [Citation.]" (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212 (Harustak).) Additionally, the application of a statutory standard to undisputed facts is subject to de novo review. (Id. at pp. 212-213.)
De novo review is conducted on appeal "when the extrinsic evidence consists entirely of written declarations," e.g., pertaining to contract interpretation. (Harustak, supra, 84 Cal.App.4th at p. 213.) " 'The interpretation of a written instrument, even though it involves what might properly be called questions of fact [citation], is essentially a judicial function. . . .' " (Id. at pp. 214.) Both trial and appellate courts may determine whether documents have met certain statutory standards, and how the documents should be interpreted in light of statutory law. (Id. at p. 215.)
DeForge, in contrast, contends this is essentially a substantial evidence challenge to the order, so that this court should consider all the evidence in the light most favorable to the prevailing party to give it the benefit of all reasonable inferences, and to resolve conflicts in support of the findings. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) "Declarations favoring the prevailing party's contentions are deemed to establish the facts stated in the declarations, as well as all facts which may reasonably be inferred from the declarations; if there is a substantial conflict in the facts included in the competing declarations, the trial court's determination of the controverted facts will not be disturbed on appeal." (Bookout v. Nielson (2007) 155 Cal.App.4th 1131, 1138, citing Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 1000.) Since Mother, Guy, and Jean were no longer available to make known their testamentary intents, and since Jean's will had not made specific dispositions, DeForge argues the trial court necessarily evaluated the versions given by the remaining participants in order to resolve factual matters.
The main task facing the probate court was an interpretation of the 1994 agreement and the various settlement agreements in the two cases, all of which had to be done in light of statutory provisions for inheritance, such as section 6402.5. Accordingly, even though the parties have presented some differences in their versions of the facts, we think the court was essentially required to apply statutory standards to the parties' individual contractual arrangements, the terms of which are not disputed, but only their proper effect. This was necessary to determine the proper outcome with regard to Jean's estate distribution, as a matter of law. This was not primarily a matter of assessing the credibility of witnesses, but rather it represented an application of statute to previous court rulings and written contractual arrangements arising out of an undisputed set of family relationships. As such, the proper standard of review requires us to resolve mixed question of law and fact, in which the issues of law are predominant "because of the need to consider legislative policy and the impact it may have on valuable inheritance rights in other cases." (Harustak, supra, 84 Cal.App.4th at p. 213.)
In ruling on the submitted matter, the trial court interpreted the 1994 agreement between Gary and DeForge, and later agreements, in light of previous rulings that had interpreted the same documents in prior matters arising out of both estates. The agreements under examination were intended to settle disputes, and contract principles will apply to such agreements: "A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts. [Citation.] An essential element of any contract is 'consent.' [Citations.] The 'consent' must be 'mutual.' [Citations.]" (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810-811.) The general purpose of contract interpretation is to give effect to the intention of the parties, and requires a determination of what the parties meant by the words they used. (Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 38.) "The trial court's determination of whether an ambiguity exists is a question of law, subject to independent review on appeal. [Citation.] The trial court's resolution of an ambiguity is also a question of law if no parol evidence is admitted or if the parol evidence is not in conflict." (Wolf v. Superior Court (2004) 114 Cal.App.4th 1343, 1351; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 847.)
Because the probate court examined the written documents in dispute, in light of the declaration and verified response about the parties' respective understandings, it apparently took into account this extrinsic evidence that was offered to show whether the documents' terms were reasonably susceptible of the particular meanings promoted by the parties. (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912-913.) This was appropriate because both parties were apparently contending the documents were ambiguous about the scope of the settlements. However, the record does not support a conclusion that the interpretation of these contracts turned upon the credibility of conflicting extrinsic evidence. (Id. at pp. 912-913.)
Rather, these settlement agreements were properly interpreted in light of all the relevant circumstances as shown by the respective rulings in the two case files of the estates, as collected in Jean's estate. In such a case, the crucial evidence was not the declarations, but rather the legal relationships of the family members with respect to inheritance, as governed by statute. The extrinsic evidence about the intent of Gary and DeForge is not in serious conflict as far as their intentions about Guy's and Mother's estate assets. Regarding Jean's estate, however, contract rules of interpretation are applied together, on de novo review, with a reading of the statutes otherwise providing for distribution of Jean's estate, since, for all intents and purposes, she died intestate. This will determine the effectiveness of the agreements with respect to altering any distribution of her estate.
III SUBSTANTIVE ISSUES
A. Contentions
Gary believes it was error for the probate court to conclude that the subject agreements dealt with inheritance from persons other than Jean (i.e., Mother and Guy), and to conclude that DeForge is entitled to share in the proceeds of the stepmother's (Jean's) estate. He says that only he, as the issue of Guy, may inherit from Jean's estate, because DeForge "agreed" to that in 1994 and 2005. At the time the matter was presented to the probate court, Gary relied on section 6402.5 as providing for the distribution of Jean's property: one-half to the issue of Guy, if the property was from Guy's separate funds or community property of the marriage. Gary therefore argued he was the only issue of Guy allowed to inherit from Jean, due to the 1994 agreement and the November 30, 2005 finding of estoppel against DeForge, in Guy's estate.
Both Gary and DeForge made requests to the probate court to make a determination about the nature of the property in Jean's estate, as Guy's separate property or community property of the couple. On appeal, Gary initially argued that the source of Jean's property, from Guy's estate, was an issue that remained to be considered, and stated the probate court had not yet decided whether the proceeds of the sale of Guy's property were community or separate funds. He framed his argument in terms of whether Jean had ever exercised her power of appointment over the trust funds that were allocated to her as part of the 2002 settlement reached between Gary and herself, as administrator of Guy's estate, as one-third of the sale proceeds. Gary seemed to argue that Guy's money never effectively passed to Jean.
In response, DeForge objects that this power of appointment issue, about the contents of Jean's estate, was not presented to the trial court and is not dispositive. She relies on a case mainly dealing with trust issues, Sears v. Rule (1945) 27 Cal.2d 131, 144-146, for the proposition that relinquishing rights in one estate does not relinquish rights to take under statute from another. In case this court should find this issue is relevant, she has requested judicial notice on appeal of a 2006 stipulation reached in Guy's estate regarding distribution of his estate assets, between Gary and the administrator of Jean's estate, that was apparently intended to modify the 2002 settlement agreement between Jean (administrator of Guy's estate) and Gary. (Evid. Code, § 459.)
Generally, a party is not permitted to change the positions taken before the trial court in order to adopt new theories on appeal, because doing so would be unfair both to the court and to the opposing litigant. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29.) Additionally, in this case, it is unnecessary to consider the additional material, because the record is already sufficient to demonstrate the relationship of Jean's and Guy's estates, for purposes of the issues properly presented on appeal. That is, as Gary admits in his reply brief, "this appeal is about contract interpretation related to the 1994 agreement and the 2005 assignment." Gary now represents that he did not intend to raise a new issue on appeal about Jean's activities while she was alive, but he instead sought to give background to the purpose of DeForge's 2005 assignment of her interest in Guy's estate to Gary. We accordingly deny this judicial notice request.
We review the record as we find it, to determine if the probate court correctly analyzed the proper scope of the various settlement agreements in light of applicable statutes, in ruling that these agreements, providing DeForge would not inherit from Guy, did not alter her rights to inherit from Jean. Although the reporter's transcript and minute orders of the subject hearing show that the probate court deferred resolution of some of the issues about community and separate property in Jean's estate, since there were still other claimants on her side, we think that the probate court did undertake to resolve some of the other issues about the character of that property, with respect to the rights of Gary and DeForge. The court's orders reflect implied findings that the money from Guy's estate had already effectively passed into Jean's estate, and that the 2002 settlement between Gary and Jean as the administrator of Guy remained in effect, and that it had reflected legal conclusions by the parties that were approved by the probate court. Specifically, pursuant to that settlement, Gary had received amounts that were identified as one-third of the total, as separate property of Guy, and the remaining two-thirds of the money was apparently characterized by the parties as community property, of which Jean received 50 percent in trust (her one-third). Later, DeForge reached the 2005 agreement with Gary, also in Guy's estate, not to take from Guy, in return for $10,000.
With these facts in mind, we turn to the substance of the formal order. It provides that DeForge is entitled to participate as a beneficiary of Jean's estate based on her status as issue of Guy. The original order on submitted matter states that DeForge is not precluded from sharing as a beneficiary, under the following reasoning: "Nothing in this agreement directly or indirectly contemplates that the agreement would be extended to some contingent and unknown event such as the later death of [Jean]. Similarly, the subject of the assignment signed on August 15, 2005 is ['Guy's estate and its assets.]' By its terms, this agreement does not extend to the right of . . .DeForge to participate as a beneficiary of the estate of [Jean]."
Properly read, the formal order incorporates the reasoning of the minute order on submitted matter. Therefore, we examine the substance of the ruling that both DeForge and Gary were entitled to share in the proceeds of Jean's estate.
B. Statutes and Analysis
We now turn to the statutes to resolve those issues properly presented on appeal about Jean's estate. Section 6402.5 was relied on by both parties before the probate court, and it provides at subdivision (a): "For purposes of distributing real property under this section if the decedent had a predeceased spouse who died not more than 15 years before the decedent and there is no surviving spouse or issue of the decedent, the portion of the decedent's estate attributable to the decedent's predeceased spouse passes as follows: [¶] (1) If the decedent is survived by issue of the predeceased spouse, to the surviving issue of the predeceased spouse; if they are all of the same degree of kinship to the predeceased spouse they take equally, but if of unequal degree those of more remote degree take in the manner provided in Section 240." (Italics added.)
There are no issues about different degrees of kinship in this case, since Gary and DeForge are brother and sister, and they are the only claimants of Guy. Jean left no living issue. Under section 240, "[i]f a statute calls for property to be distributed or taken in the manner provided in this section, the property shall be divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living, each living member of the nearest generation of issue then living receiving one share and the share of each deceased member of that generation who leaves issue then living being divided in the same manner among his or her then living issue."
Jean died two years after Guy, and only personal property (money) was in her estate. Therefore, the trial court apparently applied section 6402.5, subdivision (b): "For purposes of distributing personal property under this section if the decedent had a predeceased spouse who died not more than five years before the decedent, and there is no surviving spouse or issue of the decedent, the portion of the decedent's estate attributable to the decedent's predeceased spouse passes as follows: [¶] (1) If the decedent is survived by issue of the predeceased spouse, to the surviving issue of the predeceased spouse; if they are all of the same degree of kinship to the predeceased spouse they take equally . . . ." (Italics added.)
Next, under section 6402.5, subdivision (f), these definitions apply: "For the purposes of this section, the 'portion of the decedent's estate attributable to the decedent's predeceased spouse' means all of the following property in the decedent's estate: [¶] (1) One-half of the community property in existence at the time of the death of the predeceased spouse. [¶] (2) One-half of any community property, in existence at the time of death of the predeceased spouse, which was given to the decedent by the predeceased spouse by way of gift, descent, or devise. [¶] (3) That portion of any community property in which the predeceased spouse had any incident of ownership and which vested in the decedent upon the death of the predeceased spouse by right of survivorship. [¶] (4) Any separate property of the predeceased spouse which came to the decedent by gift, descent, or devise of the predeceased spouse or which vested in the decedent upon the death of the predeceased spouse by right of survivorship."
Jean's estate had been funded by the proceeds of Guy's estate, and it contained personal property. For purposes of applying the above sections, the probate court was well apprised of the background in which there were various disputes between Gary and Jean, in Guy's estate, and later, between Guy's estate and Jean's estate. However, the probate court never agreed to unwind the previous settlements in those matters, although Gary sought such an order. The court had a sufficient basis in the record to interpret the 1994 settlement agreement by DeForge and Gary, in which DeForge took from Mother while Gary took from Guy, as dealing only with the assets of Mother and Guy. The court also had a sufficient basis in the record to conclude that Jean's estate had a separate identity from Guy's estate, and that the funds in Jean's estate belonged to her and were subject to statutory allocation, since her will did not provide otherwise. We agree with the probate court that the previous agreements between DeForge and Gary, with respect to the estate of Guy, did not extend to the contingent event of Jean's death without an effective estate plan, so that the statutory distribution would come into effect as to Jean. This represented a correct reading of the entire record in light of the manner in which these legal and factual issues were presented to the trial court, and in light of applicable law. Nothing presented by Gary provides any basis for a different resolution of this specific dispute.
DISPOSITION
The order is affirmed; motion to dismiss is denied. Each party shall bear their own costs on appeal.
WE CONCUR: HALLER, J. McINTYRE, J.