Opinion
G045474
02-07-2012
Estate of MONROE F. MARSH, Deceased. JANE L. MARSH, Plaintiff and Appellant, v. STEPHEN D. MARSH as Executor, etc., et al., Defendants and Respondents.
Law Office Michael A. Weiss and Michael A. Weiss for Plaintiff and Appellant. Law Offices of Stephen M. Magro and Stephen M. Magro for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. 30-2009-00331535, 30-2010-00384291, & 30-2010-00426209)
OPINION
Appeal from four orders of the Superior Court of Orange County, Mary Fingal Schulte, Kazuharu Makino, Judges, and Daniel J. Didier, Judge (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Purported appeal from two of the orders dismissed. The two other orders affirmed.
Law Office Michael A. Weiss and Michael A. Weiss for Plaintiff and Appellant.
Law Offices of Stephen M. Magro and Stephen M. Magro for Defendants and Respondents.
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1. Introduction
This is the second of two companion appeals arising out of the litigation following the death of Monroe Marsh (Monroe) in 2009 at an age no less than 94. The first appeal we have termed, after the last two digits of its docket number, the "38 appeal." This is the "74 appeal." As was the case with the 38 appeal, the haphazard nature of the record assembled by the appellant's attorney requires us to take judicial notice of the companion appeal to compile a coherent narrative.
The basic story is told in the 38 appeal. That appeal covers most of the events in the litigation from Monroe's death in late 2009 to the sustaining of a demurrer to a will contest filed by appellant Jane Marsh (Jane) in early March 2011. The focus of the 38 appeal is the dismissal of Jane's first civil action, what we have called the "4291 civil action" after the last four digits of its trial court docket number. The 4291 civil action attacked Monroe's will on the theory that, as his surviving "partner," Jane succeeded to the entirety of his estate as a matter of California "partnership" law.
The partnership theory is frivolous. The theory's origin is a misreading of Family Code section 721. As explained in In re Marriage of Leni (2006) 144 Cal.App.4th 1087, the enactment of Family Code section 721 did not replace California family law concerning separate property with partnership rules in which a surviving partner succeeds to the entirety of partnership property.
The main issue in this, the 74 appeal, concerns the validity of orders admitting Monroe's will to probate and appointing Monroe's son and grandson, Stephen and Damon Marsh (Stephen and Damon), as executors of Monroe's will with full authority to administer Monroe's estate. There was no error and we affirm both orders.
As is the case in the 38 appeal, we also are forced to conclude that this appeal is objectively frivolous. Accordingly we direct the trial court to assess sanctions against Michael, and Michael only, for the costs of this appeal which he has gratuitously inflicted against Monroe's estate. The record is susceptible of the reasonable inference that it is Michael who has been calling the shots in the litigation concerning Monroe's estate. We do not see any reason Michael's 92-year old mother should be held responsible for appellate sanctions that he effectively precipitated.
2. Additional Background
In addition to the basic narrative of the litigation told in the 38 appeal, this appeal involves these events:
In July 2010, about two weeks prior to Jane's filing of what we have termed the "4291 civil action," Stephen and Damon filed a petition, under Probate Code section 850, to determine title to real property (the Lakeview property) in the main probate action (the "1535 probate action").
In November 2010 Jane filed a second civil action, the "6209 civil action." About a month after that, in December 2010, Jane filed a will contest challenging Monroe's will. Stephen and Damon quickly demurred to the will contest. In February the demurrer was sustained without leave to amend.
By April 2011 the 6209 civil action had yet to be consolidated with the 1535 probate action, so the 6209 civil action was still assigned to Judge Makino. But prior to the consolidation three motions were filed in quick succession.
First, Stephen and Damon demurred to the 6209 civil action. About the same time Jane moved to abate Stephen and Damon's earlier Probate Code section 850 petition (the "850 petition") on the theory that the 6209 civil action necessarily took precedence. (And even though the 6209 probate action had been filed later.) Finally, Stephen and Damon filed a motion to consolidate the 1535 action with the 6209 civil action.
The motion to abate the 850 petition was denied, by order of May 13, 2011. On May 17, came the trial of the petition to admit the will to probate. That trial was heard by Judge Didier, who had been assigned the 1535 civil action. After hearing testimony, Judge Didier admitted the will to probate, as reflected in a minute order dated May 17, 2011. A separate formal order, appointing Stephen and Damon as executors of Monroe's estate and giving them full authority to independently administer the estate, was filed on June 20, 2011.
Meanwhile, the two outstanding matters from April -- the demurrer to the 6209 civil action and the motion to consolidate -- soon resulted in formal orders. On May 23, Judge Makino ordered the demurrer to the 6209 action sustained without leave to amend. Simultaneously he signed an order of dismissal of the action. The next day Judge Schulte ordered the 1535 probate action consolidated with the 6209 civil action. However Judge Schulte noted that, given Judge Makino's dismissal the day before, there might be nothing to consolidate.
On June 28, 2011 Jane filed a notice of appeal in this, the 74 appeal. The notice designates these orders: (1) a June 20, 2011 "Order Admit Will & Ltrs"; (2) a May 24, 2011 "Order Consolidating"; (3) a May 23, 2011 "Order Dismiss Complaint" and (4) a May 13, 2011 "Order Deny Motion to Abate 850 Petition."
3. Appealability
As is the case with the 38 appeal, the opening brief, prepared by Michael, does not comply with the California Rules of Court, which require a statement of appealability. (See Cal. Rules of Court, rule 8.204(a)(2)(B).) Again we must independently ascertain the scope of our appellate jurisdiction. (Olson v. Cory (1983) 35 Cal.3d 390, 398.) In this appeal there is no question of timeliness. All orders were filed within 60 days of the June 28, 2011 notice of appeal.
We now dismiss (2), the May 24, 2011 order consolidating the 1535 probate action with the 6209 civil action. As explained in the 38 appeal, consolidation orders are not appealable. (See Estate of Wilson (1942) 55 Cal.App.2d 398.)
We also dismiss (4), the May 13 order denying the motion to abate. While the adjudication of the merits of a claim under Probate Code section 850 are appealable (see Prob. Code, § 1300, subd. (k)), an order merely involving a request to delay adjudication of such a claim is not to be found in Probate Code sections 1300 through 1304.
The (1) June 20, 2011 order is appealable for two reasons. First, it grants letters to a personal representative. (Prob. Code, § 1303, subd. (a)). Second, it incorporates the May 17, 2011 minute order admitting Monroe's will to probate. (Prob. Code, § 1303, subd. (b).)
Finally, (3), the May 23, 2011 order to dismiss the 6209 civil action is also appealable. As explained in the 38 appeal, in substantive effect it is an order determining that Jane is not entitled to the estate. (Prob. Code, § 1303, subd. (f).)
4. The Order Admitting the Will to Probate
Probate Code section 8252 governs the admission of a will to probate. The statute provides that the "contestants of the will have the burden of proof of lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation."
At the trial held May 17, 2011, Jane did not even attempt to prove any of the statutory reasons to prevent a will from being admitted to probate. Michael called no witnesses on his mother's behalf. Michael did, however, make a number of objections or otherwise frivolous arguments: (1) He objected to a request that the trial court take notice of its own file. (2) He objected to the admission of the death certificate. (Supposedly there was "no testimony by the physician as to the truth of the contents of this document.") (3) He asserted there was a "genuine issue as to who the decedent was." Additionally, (4) he questioned Monroe's long-time friend about the friend's identification of Monroe's signature on the will.
The testimonial evidence at the hearing was proffered entirely by Stephen and Damon. Richard Stack, a lawyer who had known Monroe for 35 years, testified he prepared the will. Stack further testified that Monroe's son Stephen had a background in "construction work and work with real property," which prompted Monroe to name Stephen as executor. Monroe, said Stack, also named Stephen's son Damon as co-executor to help his father Stephen shoulder the work. By contrast, Monroe told Stack that Monroe thought his wife Jane "had a drinking problem." Accordingly, it would be "difficult for her" to be the executor of the estate. Stephen and Damon also called another attorney, Edwin Freston, who witnessed Monroe's will.
The evidence heard at the May 17 trial showed clearly that the will was Monroe's, and reflected his intentions. Jane in no way carried her burden under Probate Code section 8252. In this appeal, the brief written by Michael essentially presents a series of conclusory statements which are a variation on the "partnership" theme of the two civil actions. The arguments Michael proffers are all arguments based on his untenable partnership theory: Because Monroe and Jane were "partners" as a matter of law, she succeeded to the entirety of his estate, ergo the will was invalid and contrary to public policy.
Unless we have missed something (which is easy to do given the disjointed nature of his briefs and the incomplete tables of authorities), Michael's brief makes no attempt to confront the requirements on will contestants set forth in Probate Code section 8252.
5. The Order Dismissing the 6209 Civil Action
The 6209 civil action is substantially the same as the 4291 civil action which is the subject of the companion appeal. Both actions are predicated on Michael's theory that, upon Monroe's marriage to Jane, by operation of law all of Monroe's separate property became partnership property. As explained in the 38 appeal, the theory is frivolous. Dismissal of a separate civil action seeking to circumvent normal probate administration was correct.
6. Sanctions on Appeal Against Michael
What we say in the 38 appeal about the objective frivolousness of the 38 appeal applies just as much here. But several points appear in addition:
(1) The filing of a second civil action, the 6209 civil action, is particularly without merit. A month earlier the trial court had dismissed the first civil action (the 4219 civil action). Thus Michael already knew that the trial court did not consider his partnership theory to be viable. Yet he gratuitously filed almost the same action again, unnecessarily complicating the litigation. The second civil action only confirms that Michael has proceeded with indifference to established law.
(2) Michael's various objections at the May 17 hearing, including objecting to the identification of the decedent and questioning the identification of his signature, were patently frivolous. They were on a par with the novice lawyer who objects to someone giving his or her age on grounds of hearsay. But Michael has been a lawyer for over 25 years now. He should have known better. The frivolousness of his objections underscores the objective frivolousness of his main "partnership" argument.
(3) As pointed out by the estate in its reply to the sanctions motion, Michael has not -- to put it charitably -- taken the Superior Court Probate Department seriously. He was cautioned by Judge Schulte at the hearing on the motion to consolidate the second civil action with the probate action that he had shown "increasing lack of respect for the court." He was particularly warned against accusing the trial judges sitting in the probate department of "bias" and "deliberately denying" Jane "due process rights." In fact, he took the opportunity in oral argument in this court to reiterate his assertion that the judges of the probate department were biased against him and would not afford his mother due process. Michael's failure to take the rulings of the probate department seriously only underscores the point that Michael has promulgated a frivolous "partnership" theory in order to avoid the result which California probate and family law would otherwise require in the probate administration of Monroe's estate.
DISPOSITION
Insofar as this appeal purports to be from the order of consolidation, filed May 24, 2011 consolidating the 1535 probate action with the 6209 civil action, it is dismissed. Insofar as this appeal purports to be from the May 13, 2011 order denying the motion to abate, it is dismissed.
The June 20, 2011 order, incorporating a May 17, 2011 order admitting the will to probate, is affirmed. The June 20, 2011 order appointing Stephen and Damon as executors is affirmed. The May 23, 2011 order dismissing the 6209 civil action is affirmed.
As a matter of appellate sanctions, the court in the 1531 probate action is directed to take evidence from Stephen and Damon as to the full extent of the reasonable attorney fees and costs which the 74 appeal has effectively cost the estate. To the extent the amount does not otherwise overlap the sanctions to be assessed from the 38 appeal, the trial court is directed to assess those fees and costs as sanctions against Michael personally, and Michael only. Again, we see nothing in the record to indicate that a 92-year old widow should be penalized for the frivolousness of her son's pet legal theory. Indeed, attorney Stack's testimony gives rise to the inference that Jane may be too readily susceptible to outside influence.
Pursuant to Business and Professions Code section 6086.7, the clerk of this court is directed to forward a copy of this opinion to the State Bar upon return of the remittitur, and to notify Michael that this matter has been referred to the State Bar.
Respondents to recover their costs on appeal.
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RYLAARSDAM, ACTING P. J.
WE CONCUR:
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O'LEARY, J.
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FYBEL, J.